Report (3rd Day) (Continued)
Clause 156: Provision of social care services: financial assistance
Amendment 145
Moved by
145: Clause 156, page 126, line 37, at end insert—
“(c) after subsection (2) insert—“(3) No financial assistance provided under this section may be used for the purposes of—(a) repaying debt incurred outside of the business's normal day-to-day operations;(b) paying interest on debt incurred outside of the business's normal day-to-day operations;(c) making distributions to shareholders.””Member’s explanatory statement
This amendment ensures that financial assistance given by the Secretary of State is not distributed to shareholders or used to repay debt obligations incurred as “financial engineering” or leveraging.
Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP)
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My Lords, in moving Amendment 145, which appears in my name, I will also speak to Amendments 146 and 147. I thank the noble Lord, Lord Howarth of Newport, who has swung behind these amendments since Committee, and I also very much thank the noble Baroness, Lady Tyler of Enfield, for her support for Amendment 147.

As we discussed at some length in Committee, all of these amendments address predatory finance in the care sector. We keep seeing more and more reports, whether from “Panorama”, Tortoise Media or the Financial Times, that there is a huge unfolding scandal in this area.

I note that, in Committee, the noble Baroness, Lady Altmann, said that there is a problem with companies
“taking advantage of some of the most vulnerable people in our society without … oversight or controls.”—[Official Report, 4/2/22; col. 1159.]
In his response, the Minister provided some suggestions for how these oversights were being provided for—but of course the fact is that we have a huge problem. As was set out in Committee and in other debates in your Lordships’ House, we have very many cases where 16%—up to 20% in places—of the return is being taken out of the cost of care.
In Committee, the noble Baroness, Lady Thornton, said that the current system is “wholly dysfunctional”, and Amendment 146, which calls for a review, seeks to deal with that issue in particular. I would love to hear that the Government see that as a great idea and that they will step forward today—I am not expecting it, but one lives in hope.
Amendment 145 picks up an issue with financial assistance. Something quite new and perhaps surprising that is introduced in the Bill, and that has had very little discussion, is the fact that the Government can provide financial assistance to care home providers in a way that has never happened before. My amendment in Committee said that this could not be used to repay debt. The Minister quite rightly pointed out that there was an issue where, if a care home wanted to pay, say, a debt that it owed to the local linen service for washing its linens or similar operational costs, that would potentially be a reasonable form of rescue. What was intended to be addressed was, as the amendment now says, debt incurred outside the business’s normal day-to-day operations, interest on debt—we know that those are the kind of financial instruments often used to extract these extraordinary rates of return—and paying dividends to shareholders.
During the Covid pandemic, we saw the payouts that went to care home providers that were, at the same time, paying very significant dividends to shareholders. There was considerable public shock and anger about that, and this addresses a similar kind of situation.
If the Minister says to me that the wording I have come up with in this amendment does not quite meet the demands, I will accept that that might well be the case; this is perhaps a first effort at it. But does he really think it is right that money paid for rescue goes to dividends or debt that is a product of financial engineering?
Responding to this in Committee, the Minister said that there would be the “usual scrutiny and safeguards” around spending public money—I think that we could all feel the House drawing a deep breath and being terribly reasonable at that point by not reacting. I point out that we seem to have reports—perhaps not daily but certainly weekly—from the National Audit Office expressing grave concerns about the way in which public money is being spent. These are after-the-fact reports that do not seem to ever have any impact, so we need to stop this public money flooding out.
Finally, I will pick up another of the Minister’s points in Committee. He said:
“Maintaining quality and high standards is vital”—[Official Report, 4/2/22; col. 1161.]
and that that is the Government’s focus. It is utterly impossible to maintain high standards and top levels of quality if 16% or 20% of the money being paid is going into profits—it clearly cannot be the best possible quality.
We are at a point where we have had considerable debate and expressions of support for these amendments on addressing these issues. In your Lordships’ House, we may perhaps not be ready to push a change into law at this moment, but an issue is being very much highlighted here, and I hope that we see some movement from the Government. We will see movement in a similar and related area on Wednesday, with the economic crime Bill—a sudden last-minute rush, reacting to public pressure—and it would be nice to see the issues being raised in these amendments dealt with in a more orderly way, in the manner of an orderly review, to actually fix what is very clearly a problem with the funding of our care sector. I beg to move.
Baroness Pitkeathley Portrait The Deputy Speaker (Baroness Pitkeathley) (Lab)
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My Lords, the noble Lord, Lord Howarth, is taking part remotely. I invite him to speak.

Lord Howarth of Newport Portrait Lord Howarth of Newport (Lab) [V]
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My Lords, I congratulate the noble Baroness, Lady Bennett of Manor Castle, on bringing back this issue on Report; I was sorry not to be able to speak in Committee. We must also be grateful to the academics at the University of Surrey who followed the money and, a year ago, published their exposé, Careless Finance.

The noble quartet of the noble Baronesses, Lady Bennett, Lady Brinton, Lady Tyler and Lady Altmann, has previously provided the House with an excellent analysis of predatory financial manipulation of the social care sector by hedge funds and offshore entities. I just want briefly to underline certain points.

What we have been seeing is legalised theft. Financial operators are leeching, for their own profit and benefit, substantial proportions—16% to 20%—of the funds provided for social care by both the public purse and self-funding individuals; “grey gold”, the profits thus extracted are sometimes called. This racket, unacceptable at any time, has been perpetrated during a period when the Government have chosen to underfund social care lamentably. Because sufficient budgets are not available to local authorities, many people who should be eligible for social care are not receiving it and many who are in social care are experiencing threadbare services. The workforce is depleted and miserably paid.

It is in the context of this crisis that unscrupulous operators have been ripping off a broken system. In their greed they are putting the business survival of providers at risk. As Christine Corlet Walker, Angela Druckman and Tim Jackson of the University of Surrey have reported, we have been seeing a large-scale transfer of money from the poorest to the richest. As they say,

“the ongoing cost is the silent tragedy of the most vulnerable in society.”

Meanwhile, the Government have made little or no effort to address the problem, which indeed they do not appear to acknowledge exists. The noble Earl, Lord Howe—for whom personally I have great regard—in his response on behalf of the Government in Committee, said that the noble Baroness’s amendment to improve transparency was not proportionate or necessary. He suggested that the Care Act 2014 and the CQC’s market oversight scheme should take care of any problems. However, since the abuses continue, it is obvious that these policies have been ineffectual with regard to them.

The noble Earl also said that it was for local authorities to shape, oversee and manage the market, but only the Government can act to close opportunities for rogue investors to carry out these abuses. He suggested that BEIS was on the case, but BEIS has been inexcusably dilatory.

The Government claim to be fixing social care, but all they are doing is providing a meagre and delayed increase in funding for social care by dint of imposing extra tax on the poor. The only reform they are truly interested in is to relieve the affluent of the need to sell their homes to pay for care.

Even the Government are now exercised about the abuses by Russian kleptocrats. So too they should be very seriously exercised by the abuses of the social care system by unscrupulous investors. Can they not see the evils that have flowed from marketising the social care sector? As the noble Baroness has just said, on Wednesday, the House will debate the Economic Crime (Transparency and Enforcement) Bill. We should also be debating an overdue “social care financial abuse (transparency and enforcement) Bill”, brought forward by the Government.

Baroness Pitkeathley Portrait The Deputy Speaker (Baroness Pitkeathley) (Lab)
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My Lords, the noble Baroness, Lady Brinton, is also taking part remotely. I invite her to speak next.

Baroness Brinton Portrait Baroness Brinton (LD) [V]
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I thank the noble Baroness, Lady Bennett, for tabling these amendments, slightly amended from Committee, and in particular for responding to the Minister’s concerns that the first amendment had perhaps been too broad and would catch the day-to-day business of companies. That cannot be said about Amendment 145.

I also want to pick up a point that the noble Earl made in Committee. He said:

“A company’s working capital, by its nature, is money that is used to fund day-to-day operations in general, and one cannot associate a particular pound with a particular business activity.”—[Official Report, 4/2/22; col. 1161.]

Yet the Charity Commission does have the ability to intervene in the event that a charity, or series of charities stretches—shall we say?—those rules. Its Internal Financial Controls for Charities, CC8, provides very specific guidance. Indeed, in recent years, one charity, the Plymouth Brethren Christian Church, was investigated for a circular set of donations. Each donation to each different body was paid tax relief out of the public purse, coming back to serve the schools that the adults at the community church sent their children to. The way that was structured was similar to a financial instrument employed by the few companies that abused the funding they received from the public purse for social care.

The noble Earl also referred to the Treasury guidance Managing Public Money and Accounting Officer Assessments. I have been through that, too. It is very interesting and clear. Under the heading

“expenditure which may rely on a Supply and Appropriation Act”,

Managing Public Money lists

“routine administration costs: employment costs, rent, cleaning etc … lease agreements, eg for photocopiers, lifts”.

It does not say: “Re-charging sister/parent/daughter companies for large amounts of borrowing and the interest thereto”, which is what has been happening.

It is important that we start to debate how public funding is spent by these companies, particularly those overseas, when we cannot see how that money is spent. I also support the other amendments in the group, which ask for a review of financial regulation. It is interesting that the Treasury guidance refers constantly to the Nolan principles, which are absolutely vital in talking about transparency and responsibility when spending public money. These amendments might not be quite right to deliver that, but it would be good if there were a review under way.

The other thing we must have when these companies spend large amounts of public money is publication of their full accounts. They should not be able to hide behind very short, superficial accounts from overseas.

Baroness Tyler of Enfield Portrait Baroness Tyler of Enfield (LD)
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My Lords, I support these amendments tabled by the noble Baroness, Lady Bennett, as I did in Committee. In essence, they are about financial practices in the social care sector that I find completely unacceptable.

The social care provider market, as we all know, is complex, fragmented and too often inherently unstable. One of the causes of instability is financially risky behaviour by a small number of large, equity-backed, highly debt-laden companies in the residential care sector. This has resulted in some high-profile sudden exits from the market, such as Southern Cross and Four Seasons. The key point is that, in the event of the closure of a care home, the provider bears no responsibility for continuity of care. That falls on the local authority, with the direct impact felt by care home residents and their families. That just cannot be right.

It is also concerning that, in its 2021 social care market report, the NAO was unable to analyse the accounts of five of the large equity-backed providers because of difficulty in accessing their accounts. Of course, the issue of the lack of transparency over accounts, profits and shareholders is exacerbated when company ownership is offshore.

As the noble Baroness, Lady Bennett, explained, Amendment 147 seeks to require local authorities and other public bodies to commission care from non-UK domiciled companies only if they publish full accounts and offer transparency over their ownership. There is an interesting international precedent for the latter part of this. Indeed, in February 2022, the Biden Administration announced a set of measures around improving quality and transparency by requiring private equity firms to disclose ownership stakes in nursing homes.

I will finish by making a couple of broad points. For a measure like this to be implemented effectively, it will clearly be essential that local authorities are equipped with sufficient complex accounting knowledge to scrutinise the ownership and financial practices of a provider. Although this amendment would help ensure transparency and enable better scrutiny of offshore entities, I am conscious that complex ownership structures are not limited to companies owned abroad. I hope the time will come when this sort of financial transparency is extended across all providers, wherever they are based.

This measure is necessary but not sufficient. In my view, requirements to ensure that fees are invested back into care delivery rather than leaked into offshore accounts need to be part of the mix. Again, I am interested that countries such as France currently take this approach by offering increased payments to domiciliary care providers which can demonstrate investment in staffing and improved service quality.
The Bill misses an opportunity to strengthen the CQC’s financial management regime for large providers. At present, that regime is light-touch and largely reactive, with limited capacity to monitor providers and scrutinise their accounts. Bolstering the CQC’s capacity would make it more possible for it to intervene proactively, before a provider fails. This is a big and serious issue and there is much to do but I hope that these amendments will provide a much-needed first step.
Baroness Thornton Portrait Baroness Thornton (Lab)
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My Lords, I am grateful to the noble Baroness, Lady Bennett, for returning us to this issue because I have reflected on the noble Earl’s remarks when we discussed this in Committee. He made an impressive contribution in that it listed many of the safeguards that the Government say are in place to deal with what are clearly very unsatisfactory situations in the care sector, which affect the most vulnerable in our communities.

My question to the noble Earl is: does he really believe that the Government are dealing effectively with the problems that face this sector, which is dysfunctional—I thank the noble Baroness for reminding me that I said that—and places insecurity in the hearts of some of the most vulnerable and eldest members of our communities? If all the things that he listed the previous time we discussed this were working, why would we return to this and say that those safeguards are clearly not working? Asset stripping is clearly still taking place. There are huge dangers to this sector and the noble Baroness has brought this back to the House because of them.

Earl Howe Portrait Earl Howe (Con)
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My Lords, the noble Baroness, Lady Bennett, has brought us back to issues that we debated in Committee and I understand her concern about propriety in the deployment of public funds. I have no problem with the idea that Ministers and public servants should do all they can to ensure that public money is used effectively for the greater good. That is what they are obliged to do anyway. However, I do not feel that this duty is best served by accepting the amendment, even though it has been newly worded.

In my answer in Committee, I described how during the pandemic we learned about the importance of speed and flexibility in the way that we respond to a crisis. I suggest that this amendment would impede the Government’s ability to provide emergency support to critical providers. That does not mean handing out money willy-nilly. Any use of the power will be subject to the usual scrutiny and safeguards around the use of public funds, as set out in Treasury guidance on Managing Public Money and Accounting Officer Assessments.

There is a fundamental problem with the proposition that the noble Baroness has advanced. The amendment refers to “day-to-day operations” but there is no single accepted definition of that term. Any company could find itself excluded from receiving critical funding depending on how its accounts and finances are structured. For example, there are potential scenarios where the Government could ask providers to carry out activities at pace which may involve them in creating unavoidable debts, for which they would need reimbursement. In that situation there would be nothing improper in any government funding being used to repay that debt, but even if there were no such debts involved, the problem remains that any private company would be prevented paying dividends, as it would be logically impossible to disassociate the long-term effects of the assistance from the ability of the company to pay such dividends. I understand the concerns of the noble Baroness about unscrupulous people and fraud, but the amendment as worded is not well conceived.

Turning to Amendments 146 and 147, again, nobody can be comfortable with the idea of rogue investors or unscrupulous care providers. However, I made clear in Committee that the Government are committed to ensuring that we have a sustainable care market. We have already set out a number of planned actions, most notably in the People at the Heart of Care: Adult Social Care Reform White Paper, to achieve this objective. Noble Lords are aware that the adult social care sector is complex, as it contains both the public and the private sector. One thing that the two sectors have in common is the need to maintain not only quality of care but financial stability. To ensure that these businesses provide the care that they are required to, local government and regulators, such as the Care Quality Commission, monitor, regulate and support the sector.

As I mentioned in Committee, the CQC has market oversight responsibility, and in discharging those responsibilities, it performs comprehensive financial sustainability analysis for each provider in the scheme, including some private equity ownership structures. Debt leverage and capital structure are important components of this work, but consideration is also given to current and future trading trajectories, cash headroom and market positioning.

We also have in place the CQC-operated market oversight scheme, which monitors the financial health of the largest and most difficult-to-replace providers in the adult social care sector, ensuring that people’s care is not interrupted due to provider failure, which must be a proper concern. Since its establishment in 2015, there have been no major business failures of care providers that have resulted in the cessation of care.

We have always been clear that fraud is unacceptable. We are acting against those abusing the system; 150,000 ineligible claims have been blocked on the Covid-19 schemes, and £500 million was recovered last year. The HMRC tax protection task force is expected to recover an additional £1 billion of taxpayers’ money. Therefore, even if cash is diverted fraudulently, there is still the ability of the authorities to recover such cash.

I assure the noble Baroness that the Government will continue to keep the measures which I have outlined under review but, at present, we do not believe that the proposed and very prescriptive amendments are either proportionate or necessary. I hope she feels that she can come back to this matter at a future date. With that, I am clear that these amendments should not be accepted.

Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP)
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My Lords, I thank all noble Lords who have taken part in this debate, and the Minister for his typically comprehensive response. It is interesting that the Minister very much focused on the issue of fraud and fraudulent transactions. I go back to the words of the noble Lord, Lord Howarth of Newport, who referred to what is happening as “legalised theft”. None of these amendments seeks to deal with things that are illegal; they seek to deal with things that are now an established part of our financialised, privatised system, which has all this simply built in.

I thank the noble Baroness, Lady Brinton, particularly, who provided a pre-answer in advance of the Minister’s response to Amendment 145, by saying that it was very difficult to separate out day-to-day operations and debts versus financialised debts. In demonstrating what the Charity Commission has done, the noble Baroness showed an effective example of how that can be done and different kinds of debt can be identified. The Minister said that you might need to create some special new financial structure to deal with an emergency situation. I think we know the practical reality of the financial-type structures that we are talking about, and that they are not created under those sorts of situations; they are created in a way to hide where the money is going—to ship the money offshore. That is not something that you would do in a situation where you are simply trying to rescue something.

The point made by the noble Baroness, Lady Tyler, about the inherent instability really brings home the point that what we are talking here, with regard to care homes, is people’s homes. I am glad to see that the noble Lord, Lord Kamall, is in his place, because in another discussion I raised with him the fact that people who are forcibly moved when homes are closed can actually die as a result of it happening. I hope he has made himself more aware of that situation and the risk it presents to people’s lives.

The noble Baroness, Lady Tyler, focused on some of the difficulties that the National Audit Office has had in scrutinising this whole situation. She highlighted the facts that I was talking about—how, when the National Audit Office is able to scrutinise situations, all we get is complaint. The noble Baroness highlighted how it is not even able to conduct scrutiny in this sector because of the kind of financialised structures that we have.

I am pleased that the Minister finished by noting that I am likely to come back—he perhaps even invited me to come back on these issues. It is something that I certainly intend to do. These are very complex areas, as I acknowledge, and this is an attempt to take on some extremely well-funded organisations and professional groups. Just to conclude, it is interesting that the noble Lord, Lord Howarth of Newport, as I did, contrasted the Russian kleptocrats we will talk about on Wednesday versus what we are talking about here. Of course, it is possible that they are not two groups and there might be some overlap. I invite any investigative journalists listening to have a look at whether we might be able to see an overlap there.

At the moment, it is my intention to withdraw the amendment, but I do not regard this issue as in any way dealt with or finalised. I beg leave to withdraw the amendment.

Amendment 145 withdrawn.
Amendments 146 to 147A not moved.
Schedule 18: Advertising of less healthy food and drink
Amendment 148
Moved by
148: Schedule 18, page 254, line 34, after “State” insert “which may not include products containing more than 20% of their calorific value by way of protein and not more than 5 grams of sugar per 100 grams in their composition”
Member’s explanatory statement
This amendment, along with others to Schedule 18, ensures that foods that can be advertised as “low sugar” and “high protein” under Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods are exempt from the restrictions on advertising proposed in that Schedule.
Lord Moylan Portrait Lord Moylan (Con)
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My Lords, in moving Amendment 148, I will also speak to Amendments 150 and 152 in my name. There are a number of interesting amendments in this group but I intend to stick to my last, broadly, and speak only to the ones in my name.

I had a number of amendments to this schedule—it has been renumbered; it was Schedule 17 but is now Schedule 18—in Committee, but I have decided to stick with just these three. I apologise that there are three; there is only really one, of course, but the schedule is drafted in such a way that everything has to be said three times. This amendment effectively relates to high-protein, low-sugar bars. Noble Lords may wonder why I have developed an interest in such bars; to answer that, I will tell them a story. That is all I am going to do. I will tell noble Lords a story about a real business; I will then ask my noble friend the Minister a question.

In 2015, in response to a government campaign for confectioners to develop new alternatives to overly sweet snacks, a husband and wife living near Solihull set up a company and produced a product called Grenade. In fact, its proper name is the Grenade Carb Killa. It is a high-protein, low-sugar bar. Frankly, it is not something I would particularly want to eat. It may be something that other noble Lords find equally not high on their agenda. It certainly is not marketed at children; it is largely marketed at and taken up by young people who enjoy going to the gym, exercising and doing all the things my noble friend Lord Bethell frequently illustrates himself doing on Twitter, such as plunging into cold pools in the middle of winter. What they want—perhaps my noble friend is an example of this—is an alternative on-the-go snack that is full of protein and will not give them too much sugar. That is what this product was aimed at; it was not aimed at children in any sense at all.
What is it that allows the manufacturers of this product to call it a high-protein, low-sugar bar? The answer is Regulation (EC) 1924/2006 of the European Parliament and the Council, which defines what you may call particular types of food. It says that, to be able to call something low-sugar, the product must contain
“no more than 5g of sugar per 100 g for solids”.
Similarly, it says that, to call something high-protein,
“20% of the energy value of the food”
must be “provided by protein”. Of course, the Grenade Carb Killa was carefully crafted to match these regulations so that it could be called a high-protein, low-sugar food. The product is a success. It is heavily promoted online and on social media. Not counting manufacturing staff, there are 82 staff there. The net sales are now around £35 million a year.
So what does this Bill do to its producers? I take them only as an example that I am aware of, as they have approached me and explained their business to me. First, the Bill says that the criteria set out in the EU directive will effectively cease to apply, so the parameters by which they have created their product will no longer have any effect. This was confirmed to me in what has turned out to be quite a full correspondence with my noble friend Lady Penn; let me say how I grateful I am for the effort she has put into it.
Secondly, the Bill says that the Government will now consult on whether products will be allocated to one of 15 groups set out in the draft guidance. It is by no means clear to the Grenade company which group their product might be allocated to, as the groups are very broad. One of them is “sweet biscuits”, for example, so not all food will be allocated to a group; a chicken breast will not be allocated to one of these groups because that is not what is in scope, but biscuits and things like that might be. This allocation is phase 1 of a process, as I understand it. Assuming that a product is allocated to one of those groups, it is then rated against the nutrient profiling model.
Now, noble Lords may think that we might just see some light at this point since the very high level of protein in the product should get it racing through the nutrient profiling model—but no, because the Bill requires that there should be a protein cap in the nutrient profile modelling applied to the 15 groups. This is because the Government are terrified that companies might put protein in the cornflakes and get around the regulations that way, so the large amount of protein does not help it very much at all because of the protein cap.
My noble friend may say that all this is mildly fantastical because—have I not noticed?—there is an exception for companies with fewer than 250 employees, and, as I said earlier, this company has 82 employees. The problem, however, is that two years ago, so successful were they that they were taken over by a larger company. It is now completely unclear to them—and it is not clear from the Government—whether the 250 cap applies to them as a stand-alone subsidiary or is to be applied to the larger group of which they are now part; nobody knows.
It also has some rather bizarre consequences. It means that the food that will be risky and dangerous would not have been risky had it continued to be produced by a small company—it would have been perfectly okay as long as they kept their employment down. I thought we wanted employment to go up. The second thing of course, is that no small company manufacturing compliant food will ever dare to be taken over by a larger company in the future, so this has a real consequence for business practice.
The only hope the company has is to reformulate its products, which is expensive and, as we all know, takes a long time and can go awry. Noble Lords may remember the Cherry Coke episode, which was a disaster for the Coca-Cola company when it reformulated the product. Against what criteria will Grenade reformulate its product anyway? Nobody knows; and this sort of thing is being replicated up and down the country.
In the meantime, zealous Lords have other amendments in this group saying that what the Government really need to do—so clear is their understanding of business requirements—is move ahead more rapidly with this and have a hard deadline against which it must all be brought into effect, irrespective of the consequences for jobs, businesses and prosperity, and all to save three calories a day. So, that is my story. I am sure that the Grenade company is watching this now on I ask my noble friend: when I speak to the company tomorrow, what comfort can I offer? I beg to move.
Lord Naseby Portrait Lord Naseby (Con)
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My Lords, I support my noble friend on these amendments. Of course, this is an extension of the debate that we had on the eighth day in Committee on the Bill. I want to look at the central problem behind the case history that my noble friend has outlined so clearly this evening. We need to remind ourselves that we are dealing with the food industry, one of the largest industries in the United Kingdom.

To the best of my knowledge having contacted all the trade associations, all parties want to reduce childhood obesity. There is no argument about that anywhere and, in the case of this industry, there are several areas of trade association activity, through ISBA, the IPA, the Food and Drink Federation and—of particular relevance to digital advertising—the IAB, which has worked very closely with DCMS. In a sense, that is part of the problem, because my noble friend on the Front Bench is not speaking on behalf of DCMS but about the Health and Care Bill on behalf of the DHSC.

The IAB, representing all food manufacturers dealing with digital advertising, has worked very closely with DCMS. It has kept it up to date on the latest developments, but DCMS has not engaged or worked with the industry in finding a solution. The industry has worked constructively for a long time to propose a tech-based solution that would achieve the Government’s objective of a further reduction in the number of HFSS advertisements that are viewed by children. This proposed solution would use proven, targeted technology and includes an element of advertising campaign evaluation which would be future-proof—this is important—and ensure that it continues to improve. The irony is that the industry wants to work with the Government on this matter, but so far the Government are sadly ignoring this industry’s expertise and dismissing its proposals.

I had the privilege of working in the advertising industry for 25 years, and I have seen these sorts of developments in other fields. When you have an industry working with government on an area that is important to both parties, it is a tragedy that Her Majesty’s Government, through DCMS, are not working. Yes, it is new technology, and the Government might feel happier if there was some experimental work in special test markets or whatever, but the sad thing is that this technology is there, and is proven, but still Her Majesty’s Government are refusing to use it and are seemingly—perhaps I am being too critical from the outside—unable to understand whether it will work. This is hugely frustrating for any company in this market.

I am sure my noble friend on the Front Bench is aware that the Prime Minister wants this country to lead digitally, and here we are on the frontiers of this area where we are leading, yet we cannot move forward. If the Government have reservations—and it is difficult for someone from another department, in this case the Department of Health and Social Care, who has therefore not been party to what has been going on—would it not be more sensible to have another look and evaluate it properly with those who really understand how it works and how it is developing? If the Government are still not convinced, I suppose we will have to try again later. As someone who comes from that industry—I have no involvement now and am not speaking for any particular party—I want to see companies in this area, like the one my noble friend described this evening, to be able to succeed in future.

Finally and frankly, the Government’s blunt and disproportionate advertising ban will not be effective. When there is another system on the table, my noble friend ought to take it back, have another look at it and see whether it will help everybody.

Lord Black of Brentwood Portrait Lord Black of Brentwood (Con)
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My Lords, I am speaking to Amendment 151A in my name and to four other consequential amendments which relate to the responsibility of online platforms for enforcing the ban on HFSS advertising. The amendments have been signed by the noble Baroness, Lady Merron, the noble Lord, Lord Clement-Jones and the noble Viscount, Lord Colville of Culross, a cross-party group which underlines how important the issue is, and I am grateful to them.

I declare an interest as a director of the Advertising Standards Board of Finance and deputy chairman of the Telegraph Media Group, and note my other media interests as set out in the register. I am also a vice-chairman of the APPG on ITV.

I intend to be very brief as these issues were discussed at great length in Committee. Indeed, over a marathon three-hour session, when many noble Lords raised concerns about the implementation of the proposed ban, they noted that it would not be effective as structured: it was not proportionate, it was an infringement on freedom of expression, and it was unfair and unbalanced because it penalised broadcasters and publishers and did not provide for any enforcement by the platforms—Google, Facebook, and others—where the vast majority of HFSS advertising sits.

To be clear once again, like all other noble Lords, I recognise the scale of the obesity challenge. I recognise too the strong political impetus behind the ban on HFSS advertising. Therefore, I am not seeking to swim against the tide and try to unpick this policy—rather, to ensure that the ban is implemented effectively and equally. That is what these amendments seek to do.
In essence, the Bill as drafted simply will not work, because it places all the responsibility for compliance with the online HFSS ban on advertisers. It places no responsibility on online platforms which control when and where advertising is placed, and which profit directly from it. That cannot be right or just. These amendments simply ensure that the online platforms are also held responsible for compliance, just as the Bill requires of the broadcasters. It does this by supplementing the Bill’s requirement not to “pay for” online advertising—which restricts the actions of advertisers—with the requirement not to “market, sell or arrange” online advertising, which levels the playing field between media owners and platforms. This is modelled on Ofcom’s existing regulatory regime for online advertising for some UK video-sharing platforms. It is not inventing a new concept, but simply building on what has been proven to work. It will be easy to implement through the Advertising Standards Authority which already regulates advertising online, and which has been designated as Ofcom’s statutory co-regulator in relation to online advertising controlled by the video-sharing platforms. This means that responsibility for compliance sits with those who control when, where and to whom advertising is served. It is vital that this is a statutory requirement.
I will make two other simple and brief points. First, these amendments are absolutely not about watering down the policy relating to HFSS advertising restrictions. They ensure only that they will be effective by making those responsible for controlling advertising, and who profit substantially from it, are held responsible. There is no reason at all why it should delay the implementation of the new regime.
Secondly, these amendments ensure that this Bill aligns with government policy in other crucial areas, and does not—ironically, as it stands at the moment—run counter to it. According to the Secretary of State, the online safety Bill seeks to ensure that the platforms are held accountable for scam advertising and other illegal content. If that legislation makes the platforms accountable, what could possibly be the objection to this flagship Bill doing the same for HFSS advertising? It is not just a question of joined-up government, but of ensuring the quality of public policy.
I know that my noble friend will say that all this can be addressed in the long-awaited online advertising review. That has already taken two years just to get to a second consultation, and that excuse is not good enough. We are not talking about just long grass—it is deep in the jungle. I doubt that it will see the light of day in this Parliament, joining other much-needed legislation levelling the playing field between platforms and content providers. If this legislation goes through without appropriate amendments, it will be years before another legislative vehicle comes along to right these wrongs. In the meantime, the HFSS ban will have completely failed under the weight of its own contradictions. Is that really what the Government want?
These amendments are actually about making the Government’s own policy work, which it will not, as it stands. They are about fairness, the sustainability of the media and ensuring that platforms are responsible. I hope they will find support across the House from those who support the ban and those who do not— that point is actually now behind us—because they are designed to strengthen this important Bill and make the implementation of the policy more effective. I hope, therefore, that my noble friend will say that the Government will accept them, so that it is not necessary to divide the House.
Lord Bethell Portrait Lord Bethell (Con)
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My Lords, I shall speak to Amendments 149, 151 and 153 in my name and those of the noble Lord, Lord Krebs, and the noble Baronesses, Lady Walmsley and Lady Boycott. The amendments refer specifically to a deadline for the implementation of the junk food advertising restrictions.

I completely applaud the Minister for the approach of bringing in government amendments to try to refine the terms of the Bill; it is a collaborative approach, which I think all of us have really appreciated. However, in this matter, a government amendment has, I think, overshot, by removing the previous deadline in the first draft of the Bill. These amendments seek to rectify that.

I will not speak at length, but many have said, both in Committee and at Second Reading, how urgent it is to address the issue of obesity in this country. We cannot have any delay or rolling procrastination around these measures, so it is entirely right, proper and suitable for there to be a deadline in place in a Bill such as this.

It is also right to have certainty. I have huge consideration for Grenade and its low-sugar, high-protein bar. I will certainly look out for its excellent product when I am next in the gym, and I think the uncertainty it faces, which my noble friend Lord Moylan has described, is heartbreaking. That is why it is important to start the mechanisms now for answering its quite reasonable questions and to put a deadline on when those answers should be delivered.

I am not blind to the fact that many in the industry have voiced concerns that the deadline is too tight. I have looked at it and I do not accept those concerns. I think the bans have been around and on the books for a very long time and preparations have been in place. I worked in publishing during the tobacco ban: the turnaround for that was quite tight, but it was quite transparent and it happened without too much trouble. I think that a deadline is entirely right and suitable and that the deadline proposed is reasonable. I would like to hear reassurance from the Minister that there will be clear scheduling for these measures.

I would also like very briefly to address Amendment 151A, from my noble friend Lord Black, and the related amendments. On this, I feel utterly conflicted. The harms caused by online advertising have been mounting over several years. They are currently far too damaging and they are set to grow, both in scale and sophistication, without any clear sight of regulatory control. That is of grave concern, and the points made by my noble friend were very persuasive: I think he was right about bringing in compliance by the platforms. On the other hand, I accept that government regulation in this area is so off the pace; the online harms Bill is so far behind and the online advertising review has taken so long that the Government are just not in a position to implement the measures in this amendment.

I shall not be supporting these amendments in any votes that might happen, but my sentiments are very much along those lines. I ask the Minister to say very clearly what the Department for Health and Social Care and the Government will do around these concerns, not just on junk food advertising but on the advertising of alcohol, betting and non-surgical cosmetics, which all face similar concerns around the explosion of complex and persuasive online advertising which is underregulated.

Lord Krebs Portrait Lord Krebs (CB)
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My Lords, I shall speak in support of the amendments in the name of the noble Lord, Lord Bethell, to which I have added my name. I do not really need to say anything more than has already been said. We know that this country, according to the World Obesity Atlas published last week and supported by the World Cancer Research Fund, is now top of the European league table for projected levels of female obesity by 2030 and joint top for projected levels of male obesity. Sadly, it is probably already too late to stem this trend, but by acting now on these measures we might be able to protect the next generation. That is why I support the idea of having a firm deadline by which time the measures will be introduced.

I actually wanted to speak in slightly more detail about Amendments 148, 150 and 152 in the name of the noble Lord, Lord Moylan. As he explained, they are really just one amendment.

I promise you that this was not set up, but I have in my hand the very Grenade bar to which the noble Lord, Lord Moylan, referred. I wish to explain why this Grenade bar should definitely not be excluded. I am grateful to Dr Emma Boyland, of the University of Liverpool’s Institute of Population Health, for giving me a briefing on the Grenade Carb Killa bar—this particular one is high-protein, low-sugar, white chocolate and salted peanut. I bought it at the weekend from Holland & Barrett, in its health food section; it is marketed and advertised as a healthy product. Is it a healthy product? The answer is no.

First of all, no age group in this country is short of protein. We simply do not need to eat more protein. So the fact that this bar is high-protein is completely irrelevant in terms of health benefits. Secondly, remember that HFSS is high fat, salt and sugar. The bar may be low-sugar, but what about fat? It contains two-thirds of the recommended daily limit of the intake of saturated fat; it is definitely high in fat. It also contains more salt than a bag of salted crisps. Is it right to exclude something that is fatty and salty from the definition of HFSS? I am convinced it is not right, and therefore I completely reject the argument of the noble Lord, Lord Moylan. These products should not be excluded from the measures proposed in Schedule 18 to the Bill.

Lord Hunt of Kings Heath Portrait Lord Hunt of Kings Heath (Lab)
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My Lords, I have two amendments in this group—Amendments 154 and 155—though they are rather different from those discussed in the debates that we have just heard. I declare my interest as the president of the Hospital Caterers Association.

We have heard a lot about the risk of obesity, but we also know that many patients coming into NHS hospitals come in with nutritional issues, where good food and good nutrition could very much help them on their way to recovery. The research has indicated problems where patients are not feeding properly.

We are very grateful to Ministers for the meeting we had with the Hospital Caterers Association and the National Association of Care Catering, with the noble Baroness, Lady Barker. We are very grateful too that Clause 161 sets out specifications for hospital food standards.

There are just two quick points I want to make. First, it is a great pity that we do not have a similar process in relation to the care sector—care homes, in particular. One of the amendments relates to that: we want to see the provisions extended to the care sector. We also want to ensure that staff working in the care sector are suitably trained and that there is a suitable framework to ensure there is a high level of professional staffing.

My second point relates to the National Health Service. Although lip service has always been paid to good standards of hospital food and nutrition, unfortunately the boards of NHS organisations have often found it difficult to provide the resources to enable that to happen. The suggestion in my first amendment is, in fact, that a board-level director should be appointed to oversee this to ensure that the standards laid out as a result of the Bill, when it becomes law, will be put into practice. Alongside it go similar provisions in relation to ensuring that we have high-quality staff who can take advantage of a focused approach to training, which, at the moment, has been missing because a lot of the national infrastructure for training for staff in the NHS in the ancillary services has been neglected.

I hope that, following the discussions we had with Ministers, the noble Baroness will be able to be positive in relation to this tonight.

Lord Clement-Jones Portrait Lord Clement-Jones (LD)
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My Lords, the noble Lord, Lord Black, has put a convincing and comprehensive case for his amendments, which I have signed. He has knocked back nearly every argument made by the Government in this House and in correspondence against a level playing field being established for platform liability.

In his letter after Committee, the noble Lord, Lord Kamall, said:

“The scale and speed of advertising online, as well as the personalised nature of advertising and the lack of transparency in this system, makes it difficult for platforms to have control over what is placed on them.”

They have far more control than the broadcasters. They run their own digital advertising agencies. Facebook and Google have massive market share in their own individual digital markets.

It is extraordinary that the Government are buying these arguments from the social media platforms. They are on extremely thin ground. If the noble Lord, Lord Black of Brentwood, pushes these amendments to a vote, we will support him.

Baroness Boycott Portrait Baroness Boycott (CB)
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My Lords, I support noble Lord, Lord Bethell, in his amendments demanding a timescale for the ban on such adverts. Advertising is the only business in the world that spends an enormous amount of money and then suggests that it does not work. It is a curious state of affairs that the advertising industry, as well as the food industry, which spends upwards of £0.5 billion a year on advertising HFSS food, says that advertising does not work, but the fact is that it does.

Research has shown that half of all food ads shown in September on ITV, Channel 4, Channel 5 and Sky One were for HFSS products. That number rose to nearly 60% between 6 pm and 9 pm. Ofcom research also suggests that children’s viewing peaks in the hours after school, with the largest number of child viewers concentrated around family viewing time, between 6 pm and 9 pm. People in food policy have worked, as I have worked, for a very long time for this ban. We thoroughly applaud the Government for doing it. I also applaud my noble friend Lord Krebs for taking apart that protein bar, because it illustrates the way in which the food industry works. I have heard all too often, especially when I first came into this House—albeit not so much now—people saying, “All you need to do is exercise to get rid of the excess weight.” We know that that is a line put out by the industry. The industry is very clever. Yes, they have managed to sell the noble Lord, Lord Moylan, their protein bar, but they have not sold it properly. I hope that, with this ban, the Government will look at all the other sneaky ways in which food companies put things through, whether it is high-energy drinks or whatever, that are incredibly destructive to our health. As my noble friend Lord Krebs, said, we have an unenviable first position in the scale of obesity around the world, and we need to end it now.

Baroness Stowell of Beeston Portrait Baroness Stowell of Beeston (Con)
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My Lords, I should declare that I am chairman of the Communications and Digital Select Committee. I support Amendment 151A and the others in the name of my noble friend Lord Black of Brentwood. I do so because this is a matter of fairness.

Following on from what the noble Baroness, Lady Boycott, has just said, the broadcasters have accepted that a pre-watershed ban on junk food advertising is coming. They and I also understand that the online platforms face a complete ban. However, once again, the legacy or heritage media businesses are the only ones which will face serious financial penalties if they make a mistake and, for whatever reason, allow a non-compliant piece of advertising to slip through and appear on air. I am sure that my noble friend the Minister will emphasise that the difference between the online platforms and broadcasters is only therefore about regulatory burdens and sanctions, but that is the point, and it is why this is unfair.

Why should the media businesses which will be significantly disadvantaged commercially by the ad ban be the only ones fined if something goes wrong? Why should the media businesses which continue to lose ad revenue to online platforms stand by and watch as those same platforms—Google, Facebook, YouTube—are not yet subject to any statutory regulatory regime to prevent their unfair market dominance? How can it be right that they shrug their shoulders when it comes to liability for the ads they profit from? They profit from them to a much larger degree than the broadcasters profit from the ads they run.

When I spoke in Committee, the Minister said in reply that all this would be dealt with via the online advertising programme and that a consultation would start shortly. Any progress on that will be welcome, but there is a limit to how much consultation the media industry can take. What it needs is action, which means legislation to deal with these various digital market and competition issues that currently favour big online platforms and are detrimental to everyone else, including consumers. To fail to do that while prioritising legislation that hits the traditional broadcasters more harshly than online platforms is unfair.

As I have said, those of us who support the amendments in the name of my noble friend Lord Black do not want to delay the ban on junk food advertising, but in introducing it, we should make sure that liability for mistakes and failures to comply with regulations is fair. The Bill as it stands is not. I am very grateful to the Minister for the time she has given to hearing these arguments, but urge her to reconsider the merits of these amendments, especially bearing in mind that we are still a long way from new legislation that will finally level the playing field across the media sector. If my noble friend divides the House, I will vote with him.

Viscount Colville of Culross Portrait Viscount Colville of Culross (CB)
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My Lords, I too am very pleased to support Amendment 151A and the following amendments. I also read the letter from the noble Lord, Lord Kamall, to Peers following the debate on this in Committee. He said that it was

“difficult for regulators to keep pace with advertising code breaches without the cooperation of platforms who hold significant data on the process, and host the services”.

That seems to me a recognition of their responsibility in the ad process. As the noble Lord, Lord Black, said, ads create the vast majority of the platforms’ revenue and so they are responsible for controlling their content.

I read a recent survey on the effect of online advertising on young people, which was carried out by the healthy living charity, Global Action Plan. It showed that the average teen sees on Instagram alone one ad every eight seconds. That is the equivalent of 444 ads per hour. The survey also revealed that Facebook’s ad manager directly targeted young people with risky and unhealthy advertising, including for fast food and alcohol. It was the platforms’ data and algorithms which directed these ads, and they need to be made responsible for any restrictions on HFSS advertising as quickly as possible. There are other, more insidious forms of online advertising, such as product placement in digital content, especially among influencers. All these should be made the responsibility of the platforms to control. I hope the amendments will do just that.

I was glad to hear that the Government are looking at the online advertising programme, but I, like many noble Lords, am concerned by the laggardly start. Can the Minister say when she thinks the consultation will conclude? I hope that will happen quickly, because every day, thousands of young people are going to be harmed by the delay. I also ask the Minister to guarantee that platform liability for hosting product placement and others sorts of insidious advertising will be in scope of the consultation.

Baroness Barker Portrait Baroness Barker (LD)
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My Lords, at this late hour, I simply want to express my support for the noble Lord, Lord Hunt, and Amendments 154 and 155 in his name by making three simple points. First, we are learning all the time about the importance of nutrition and health. We are also understanding increasingly how poor nutrition can have a devastating effect on recovery and health inequality. It is therefore remarkable that in both hospitals and, more particularly, care homes we have no standards or training for the people involved in the preparation and delivery of food. That is a serious omission.

Therefore, it is time for us to move away from the traditional way in which care catering has developed, which is by scandal and omission, turning it round into a positive by developing new standards of training. We also need to try to get particularly teachers in colleges to get young people to understand that catering in care settings is far more complex then catering in restaurants. Within the NHS we have the opportunity to drive some world-beating standards on nutrition and care, and that is all that we are asking for by asking for this framework and these amendments.

Lord Grade of Yarmouth Portrait Lord Grade of Yarmouth (Con)
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My Lords, I am tempted to express my concern that the computer of the noble Lord, Lord Moylan, may have been hacked by the noble Lord, Lord Krebs, with the coincidence of the Grenade bar being at the heart of their contributions to this debate.

That said, I offer a word of warning about the imposition of a hard deadline for the implementation of the advertising ban. However desirable a deadline, it is actually impractical. I do not seek here to delay anything; I accept totally that the argument about the futility of an advertising ban has been lost, and we move on to the implementation. A deadline of 1 April—and all the delegated powers—creates a huge number of time-related consequences following that. Advertising, as well as the delegated powers and the need to produce and consult on guidance on secondary legislation, is a consequence of this. Companies will have no time to assimilate what the new rules mean for their advertising campaigns. Advertising campaigns can take up to a year from conception to final production. The Government have yet to publish the secondary regulations consultation, which will lay out exemptions, such as how SMEs are defined for the purposes of the restrictions.

Once the Bill becomes law, which will not happen for several months, Ofcom—that wonderful organisation —will then need to delegate to the relevant regulator, which, according to the amendments, will not happen until two months after the Bill receives Royal Assent. The designated regulator—most likely the ASA, as we heard—will then need to hold a consultation on the details of the guidance and process the consultation responses before putting out final guidance, which will then take several months. Only once this final guidance is published will brands be able to implement it when it comes to their marketing campaigns.

Some noble Lords may argue that the Government have already made clear what are permissible and what are not identifiable HFSS products and that industry and businesses can prepare around this. The questions and detail of the guidance are far more complicated than that. Industry has a plethora of unanswered questions that need to be resolved and which will take time, covering everything from how liability will apply to third-party delivery companies to the definition of transactional content and what rules might mean for loyalty apps. I hope that your Lordships will reject Amendments 149, 151 and 153 to avoid a chaotic transition to the new rules.

I finish by speaking in support of my noble friend Lord Black’s Amendment 151A and the resulting amendments. My noble friend laid out the case extremely well and I hope he will seek the opinion of the House on this matter. I can add nothing to the arguments that he and other noble friends have laid out. If there is a vote, the simple choice of the House is: do we want to let these monolithic, monopolistic platform giants carry on getting away with murder in this country? They have been allowed to get away with stealing copyrights, they do not regard themselves as publishers, and they create more harm—which, one hopes, the online safety Bill will seek to amend.

This is discriminatory legislation, which makes a difference between two people doing the exactly the same thing: the broadcasters, who will be liable, and the online platforms, for which there is no parity at all. It is about time we recognised that we must deal with these people and regulate them properly and sensibly. This is a perfect opportunity, and I hope your Lordships will support the amendment.

Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP)
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My Lords, I wish to briefly reinforce a point made by the noble Lord, Lord Krebs, backed up by the noble Baroness, Lady Boycott, about how so much food is advertised as being healthy when it is clearly nothing of the sort. I want to pick up the point made by the noble Lord, Lord Moylan. I will not advertise any further a particular brand of allegedly healthy food for athletes, but these foods are presented as though they are consumed by people who have just done extraordinary physical efforts—as exemplified in your Lordships’ House by the noble Lord, Lord Bethell, who, I can attest, I saw at the APPG for Running, looking like he was appropriately involved in the acts that he was supporting. However, more than half the calories consumed in the UK are in ultra-processed foods. That figure rises to 65% for children and teenagers. We need action urgently. This is a health crisis; it is an epidemic.

Baroness Walmsley Portrait Baroness Walmsley (LD)
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My Lords, I wish we were talking about restricting the advertising of gambling; that would have more effect on the health of the country than this. However, these are very important measures. Before I talk about the three major groups in this grouping of amendments, I thank the noble Lord, Lord Hunt, and my noble friend Lady Barker for raising the really important issue of nutrition to patients in hospital and people living in residential care homes.

The rest of the amendments fall into three broad groups. First are the amendments in the name of the noble Lord, Lord Moylan. While he was telling us the very sad story about the manufacturers of the Grenade bar, about how much protein it has and how little carbohydrate, I was wondering: what about the other major nutrient, fat? Noble Lords will remember from their biology lessons that, gram for gram, fat has twice as many calories as either carbohydrate or protein, and if you eat an awful lot of those bars, you will get fat—the “F” in HFSS foods. Of course, one “S” in HFSS foods stands for salt, and the noble Lord, Lord Krebs, has now told us exactly what is in that bar—far too much fat and far too much salt.

However, the noble Lord, Lord Moylan, raises a point which I raised in Committee: the nutrient profiling model is 11 years old. I asked the Minister whether there are any plans to update it, because companies really need up-to-date information about exactly what will fall within the ban and what will not. So I ask the question again: are there plans to update that 11 year-old guidance? We really do need it, because then companies such as the one mentioned by the noble Lord, Lord Moylan, and many others, will really know what they are dealing with. It certainly does not sound to me as though that bar will fall outside the restriction on advertising.

I have added my name to the amendments in the name of the noble Lord, Lord Bethell. I remember when, in Committee, the Government introduced this power to extend the deadline—they did not say how long for—and I asked what this was for and why the Government needed to extend the implementation of these restrictions. The Minister, the noble Baroness, Lady Penn, said it was just in case there were any hitches with the consultation. I think the noble Lord, Lord Bethell, is right and there is certainly a hint of long grass in what the Government were trying to do. I was a bit suspicious about it in Committee, and I still am. I support what the noble Lord, Lord Bethell, is trying to do.

All the industries concerned with these measures have had plenty of notice of what the Government wanted to do, and I think, once the detail comes forward, they will have had plenty of time. Perfectly reasonably, the noble Lord, Lord Bethell, is asking for that power that was taken to extend the deadline to be limited to just three months. That is quite enough.

As for the amendments from the noble Lord, Lord Black, I agree with my noble friend Lord Clement-Jones, although not necessarily for the same reason. Of course, there is a fairness issue here, but I think that, if the responsibility for implementation and making sure there was compliance was extended to online platforms, it would strengthen the objectives of these measures from the Government, which I support. Therefore, if he puts his amendment to the vote, we will vote for him.

Baroness Merron Portrait Baroness Merron (Lab)
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My Lords, we have had a considerable debate on these issues, in Committee and this evening in your Lordships’ House. From these Benches, we absolutely support the provisions to tackle obesity. The reasons have been gone over many times, but I make one point in respect of children—that children with obesity are five times more likely to become adults with obesity, and increase their risk of developing a range of conditions, including type-2 diabetes, cancer and heart and liver disease. It is incumbent on us to take the steps that are necessary.

Given the lateness of the hour—and I know that noble Lords wish to get to the question whether there is to be a Division—I shall focus my comments on the amendments relating to advertising, Amendment 151A, in the name of the noble Lord, Lord Black, and the subsequent amendments, to which I have put my own name. There has been a great clarity of argument as to why those amendments deserve favour, but the one that sticks out for me is about ensuring the effectiveness of the legislation that we are speaking about.

We already know that legislation can have a huge impact. For example, the soft drinks industry levy has led to manufacturers reducing 44 million kilograms of sugar each year from drinks in the UK. We also know of the support for the measure of the watershed for advertising of high-fat sugar and salt products—in other words, to protect children from those influences. We know that the measure is supported by organisations such as the British Heart Foundation, the Food Foundation and many other experts as being able to make the difference, because children are influenced by advertising. We should really be ensuring that children see adverts for healthier food and drinks.

Should the will of the House be tested on these amendments, these Benches will certainly be in support, because we feel that the Government should make sure that the proposed pre-9 pm ban on advertising unhealthier foods on TV, with a total ban online, has to be implemented effectively and appropriately across all media and platforms. If it is not and remains as it stands, it will not do the job that it is intended to do, and we will miss an opportunity, which we hope the Minister will reflect on, as the case has been made so clearly and directly.

Baroness Penn Portrait Baroness Penn (Con)
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My Lords, I thank noble Lords for this debate. I will turn first to the amendments in the name of my noble friend Lord Bethell. As noble Lords are aware, the Government introduced an amendment in Committee to enable adjustments to the date of commencement of the HFSS advertising restrictions, should emerging issues require it to be moved.

We will continue to work with regulators and businesses to ensure that guidance is produced promptly to support timely implementation; our intention remains to implement restrictions from 1 January 2023. We think that date balances ambition with the importance of sufficient time for business to prepare. However, limiting this flexibility to a period of only three months, as proposed by my noble friend’s amendment, would be counterproductive, as that timeframe may not allow us to respond adequately to any unforeseen challenges or ensure smooth delivery of this policy.

Turning to the amendments tabled by my noble friend Lord Moylan, I seek to reassure him that our current approach provides an overall assessment of the nutritional content of products, as it accounts for nutrients of concern as well as beneficial nutrients. As such, we consider it to be an effective mechanism for permitting healthier products to be advertised, while still restricting those which are less healthy overall. The detail of the products in scope will be underpinned by secondary legislation, which can provide the necessary detail and be adapted in response to future changes to products on the market. The Government will consult soon on this and other definitions included in the draft regulations, such as the small and medium enterprise exemption.

I turn now to the amendments on platform liability. The Government believe that the online advertising programme remains the best way to address such issues on an industry-wide basis, rather than in a piecemeal fashion. I am pleased to be able to confirm that the DCMS consultation, which should launch in the next fortnight, will examine the harms associated with paid-for advertising online and consider the measures that could apply to platforms and others in the supply chain in order to increase accountability and transparency.

It is our intention to legislate on those conclusions in this Parliament, as we share the view that it is the right time to put in place holistic measures to tackle platform liability. However, it is also right to bring forward powers in this Bill now, so that we can begin to tackle obesity via restrictions to TV, on-demand programme services and online, in line with current enforcement frameworks for advertising that are familiar to industry. Platforms are not able to pre-vet adverts in the same way that broadcasters can. We recognise that there is a need to address that issue, but to do so in the round.

Amending this Bill in relation to online platforms without wider consultation and at a late stage risks unintended consequences. Those could include undermining the clear responsibility of advertisers to adhere to the restrictions that we are debating; interfering with the competitive dynamics that apply across the online advertising supply chain; not addressing accountability and transparency issues that apply elsewhere in that ecosystem; the danger of the restrictions applying to a wide range of internet service providers beyond those intended, including intermediaries and publishers; and not providing regulators with the right tools, funding or structures to regulate effectively. Were this amendment to pass, the Government would need to consider very carefully whether implementation from 1 January 2023 remained possible. The risks posed by creating a more complicated regulatory framework are likely to result in a delay.

Lord Grade of Yarmouth Portrait Lord Grade of Yarmouth (Con)
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My Lords, I am grateful to my noble friend the Minister for giving way. Do the Government understand the difference between mass brand advertising on free-to-air linear television and the direct addressability to individuals online, where they have all the data—the address, postcode, email address and phone number—of the kids they are advertising to? The Government seem not to understand the pernicious nature of advertising online.

Baroness Penn Portrait Baroness Penn (Con)
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My Lords, in our 2020 consultation on advertising, we outlined our concerns about online targeting of adverts, so we did look at the approach suggested by my noble friend. There is no evidence to suggest that targeting online does not account for the use of shared devices and profiles between parents and children, the communal viewing of content or false reporting of children’s ages. This—combined with concerns around the accuracy of internet-based targeting and other behavioural data as a way of guessing a user’s age and a lack of transparency in reporting online—shows why the Government believe that we need to introduce these advertising restrictions online in the way that we have.

I was about to address the points that my noble friend made. He spoke against the amendment restricting the flexibility that the Government have in implementing these provisions because of the time that it might take to implement these measures, because they are complex and have a long feed-in time, because we must get guidance out to industry, and all the other measures that we have talked about. We consulted on these measures and on different approaches to them previously. We have engaged business in the way that we are taking these measures forward to give them time to prepare.
However, there is a tension between that and what the noble Baroness, Lady Walmsley, said: businesses have plenty of notice on the approach that we are taking and plenty of time to prepare, and that a fundamental change in approach to how we are dealing with online advertising in this Bill for these measures today would not result in any delay. I emphasise that we completely agree on targeting online advertising as well as broadcast advertising. That is why it is in the scope of this Bill and the provisions that we are talking about. We also agree that we must address the question of platform liability. We are committed to doing so as part of that wider piece of work on the online advertising programme.
My noble friend Lady Stowell talked about the issue at heart being one of parity between broadcasters and online platforms. I understand how important that is, but we must not forget the issue at the heart of all of this, which is bringing in measures to protect children who are unhealthy and at risk of obesity so that they do not them see messages which are inappropriate; we know the statistics. This Bill, and the measures in it which we do not want to delay, do this. We will address the question of online liability.
Turning to the amendments tabled by the noble Lord, Lord Hunt of Kings Heath, as he is aware, officials are working closely with NHS England to implement the recommendations from the Independent Review of NHS Hospital Food, which was published in October 2020. One of the recommendations from that review was for NHS England to publish an updated version of the NHS food and drink standards document. It is intended to be published in May and I assure your Lordships that it will contain a standard which requires that NHS trust boards have a designated board member with responsibility for hospital food.
We have been clear that the detailed standards and requirements in relation to hospital food should be provided in secondary legislation and not in the Bill. As with the advertising restrictions, this approach will enable Ministers to act in future years if new or emerging evidence suggests that amendments are needed.
The standard of food in social care settings is just as important as the standard of food in health settings but the context is different. This Bill already includes powers to set food standards across the hospital estate. However, adult social care settings are fundamentally different from hospitals, with services based on the principles of personalisation and choice. Regulated care settings that provide food will mostly be residential care. These are people’s homes. As such, their needs, wishes and preferences should be well known to staff, and blanket requirements are unlikely to be appropriate.
The Care Quality Commission regulates hydration and nutrition across health and social care as one of the fundamental standards of quality and safety. It also ensures that staff are adequately trained, and its guidance recommends that all staff complete the care certification which includes content on food standards. The Government are currently working with the sector on a new delivery model for the care certificate to improve the quality of training, so setting out those levels of training in legislation would not be proportionate at this time.
Therefore, I hope that my noble friend can withdraw his amendment, and that other noble Lords will not move theirs when they are reached.
Lord Moylan Portrait Lord Moylan (Con)
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My Lords, especially at this time of night, it is very taxing to try to summarise what is a complex debate raging across a number of issues, and in particular to thank everyone who has spoken. If I fail to thank everybody by name, I hope I will be forgiven in the interests of brevity, but I thank my noble friend the Minister again, not only for her remarks but for the attention, care and hard work she has put into addressing all these issues with me and many other noble Lords who have spoken on the various topics we are addressing.

I have to thank one or two other noble Lords. In particular, I express my gratitude to the noble Lord, Lord Krebs, who went out, no doubt at considerable personal risk and with some arduousness, to purchase an example of the Grenade Carb Killa. I had never seen one in captivity or in nature until he produced it in the Chamber today. That in itself is something I am very grateful for. He chose the one that I think is called “white chocolate” or something like that.

Here the noble Lord, Lord Krebs, has been helpful to me. I believe there are 14 different flavours of Grenade Carb Killa. It is the view of the confectioner that manufactures them that some will comply with the profiling model while others will not. Perhaps next time the noble Lord could try a different flavour and have it tested in Liverpool, I think it was, and that would generally help to advance things. The difficulty for the company, though, is that this is not a game. It needs to know which of these products has to be reformulated and how for it to remain compliant and stay in business. This was a very helpful illustration of the difficulties.

One other noble Lord I will mention is my noble friend Lord Bethell, who referred to the tobacco advertising ban as if it were some sort of comparison. There is no comparison. Nobody had to carry out a profiling exercise to decide whether something was a cigarette: it was a cigarette or it was not. There was no question of putting it through a model to discover it was a cigarette. Nobody in the cigarette manufacturing business had to reformulate their product and market test it to make it compliant with regulations. What you can do with a tobacco ban very quickly is simply irrelevant to the hurdles the Government are setting in front of businesses.

Apart from that, the many noble Lords who spoke on other aspects of the Bill, some with great knowledge and experience, have illustrated something that I hope everyone in the House can agree on, with the possible exception of my noble friends on the Front Bench: it really is a crying shame that issues of such importance and complexity should be rammed into a major Bill in a schedule when in fact it must be clear to us all now that this schedule should really have been a Bill in its own right, and should have received the attention and scrutiny these complex commercial and nutritional issues deserve. With that, I beg leave to withdraw my amendment.

Amendment 148 withdrawn.
Amendments 149 to 151 not moved.
Amendment 151A
Moved by
151A: Schedule 18, page 256, line 23, after “for” insert “, market, sell or arrange for”
Member’s explanatory statement
This amendment and other amendments to Schedule 18 hold both advertisers and online platforms responsible under statute for compliance with the online HFSS advertising restrictions in the Bill, enforced by a statutory regulator with meaningful sanctions for non-compliance. The concept of “market, sell or arrange” is one already adopted by Ofcom for its statutory regulation of online advertising on some Video Sharing Platforms (VSPs), so it is already well established.
Lord Black of Brentwood Portrait Lord Black of Brentwood (Con)
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My Lords, I am very grateful to my noble friend the Minister for the comments she made, but I am afraid I am wholly unconvinced by them. I do not think she has understood the point made by so many in passionate speeches that action is needed this day, not at some future point. The regulation of the platforms is an issue of principle on which this House should be proud to take a decisive stand. I would therefore like to move the amendment and test the opinion of the House.


Division 6

Ayes: 59

Labour: 27
Liberal Democrat: 18
Crossbench: 8
Conservative: 4
Green Party: 1
Bishops: 1

Noes: 99

Conservative: 97
Independent: 2

Amendments 152 to 153ZD not moved.
Schedule 18 agreed.
Amendment 153A
Moved by
153A: After Schedule 18, insert the following new Schedule—
1_ This Schedule is about the provision that may be made by regulations under section (Licensing of cosmetic procedures).Grant of licence
2_ The regulations may—(a) require a local authority not to grant a licence unless satisfied as to a matter specified in the regulations;(b) require a local authority to have regard, in deciding whether to grant a licence, to a matter specified in the regulations.3_ The regulations may make provision requiring a local authority not to grant a premises licence unless the premises have been inspected in accordance with the regulations.Licence conditions
4_(1) The regulations may make provision for the grant of a licence subject to conditions.(2) Provision of the kind mentioned in sub-paragraph (1) may—(a) enable a local authority to attach conditions to a licence;(b) require a local authority to attach to a licence a condition specified in the regulations.Duration of licence etc
5_(1) The regulations may make provision about the duration, renewal, variation, suspension or revocation of licences.(2) The provision that may be made under sub-paragraph (1) includes provision conferring power on a court by which a person is convicted of an offence under the regulations to vary, suspend or revoke a licence.Reviews and appeals
6_ The regulations may make provision for—(a) the review of decisions under the regulations;(b) appeals against decisions under the regulations.Offences
7_(1) The regulations may create offences in relation to—(a) the breach of a prohibition imposed by virtue of section (Licensing of cosmetic procedures)(1);(b) the breach of a condition attached to a licence;(c) the provision of false or misleading information to a local authority in connection with anything done under the regulations.(2) The regulations must provide for any such offence to be punishable on summary conviction with a fine or a fine not exceeding an amount specified, or determined in accordance with, the regulations.Financial penalties
8_(1) The regulations may confer power on a local authority to impose a financial penalty in relation to—(a) the breach of a prohibition imposed by virtue of section (Licensing of cosmetic procedures)(1);(b) the breach of a condition attached to a licence.(2) The amount of the financial penalty is to be specified in, or determined in accordance with, the regulations.(3) If the regulations confer power to impose a financial penalty in respect of conduct for which a criminal offence is created under the regulations, they must provide that a person is not liable to such a penalty in respect of conduct for which the person has been convicted of the offence.(4) If the regulations confer power to impose a financial penalty they must include provision—(a) requiring the local authority, before imposing a financial penalty on a person, to give the person written notice (a “notice of intent”) of the proposed financial penalty;(b) ensuring that the person is given an opportunity to make representations about the proposed financial penalty;(c) requiring the local authority, after the period for making representations, to decide whether to impose the financial penalty;(d) requiring the local authority, if it decides to impose the financial penalty, to give the person notice in writing (a “final notice”) imposing the penalty;(e) enabling a person on whom a financial penalty is imposed to appeal to a court or tribunal in accordance with the regulations;(f) as to the powers of the court or tribunal on such an appeal.(5) The provision that may be made by the regulations by virtue of sub-paragraph (1) includes provision—(a) enabling a notice of intent or final notice to be withdrawn or amended;(b) requiring the local authority to withdraw a final notice in circumstances specified in the regulations;(c) for a financial penalty to be increased by an amount specified in or determined in accordance with the regulations in the event of late payment;(d) as to how financial penalties are recoverable.Enforcement
9_ The regulations may confer on a local authority the function of enforcing the regulations in its area.Fees
10_ The regulations may include provision for fees in relation to the carrying out of functions of a local authority under or in connection with the regulations (including the cost of its enforcement functions under the regulations).Guidance
11_ The regulations may require a local authority, in carrying out functions under the regulations, to have regard to guidance published by the Secretary of State. Interpretation
12_(1) In this Schedule—“grant”, in relation to a licence, includes vary or renew;“licence” means a personal licence or premises licence;“personal licence” has the meaning given by section (Licensing of cosmetic procedures)(2);“premises licence” has the meaning given by section (Licensing of cosmetic procedures)(2).(2) Nothing in this Schedule is to be read as limiting the scope of the power to make regulations under section (Licensing of cosmetic procedures).”Member’s explanatory statement
This new Schedule sets out some of the things that may be included in regulations establishing a licensing regime relating to non-surgical cosmetic procedures (including provision for the imposition of fees, the creation of offences and financial penalties).
Amendment 153A agreed.
Clause 161: Hospital food standards
Amendment 154 not moved.
Clause 161 agreed.
Amendment 155 not moved.
Clause 163: Fluoridation of water supplies
Amendment 156
Moved by
156: Clause 163, page 133, line 34, at end insert—
“(10) The Secretary of State may not exercise the powers provided by virtue of—(a) this section to request a water undertaker to enter into arrangements to increase the fluoride content of the water, or(b) section 164 to request modifications to old English fluoridation arrangements,until an impact assessment has been published setting out the impact on health and the environment, including a cost-benefit analysis.”
Baroness McIntosh of Pickering Portrait Baroness McIntosh of Pickering (Con)
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My Lords, Amendment 156 is in my name, and I declare at the outset that I am co-chairman of the All-Party Parliamentary Water Group. This is a simple amendment, and I would like to cover ground that has possibly not been covered at earlier stages of the Bill.

I understand from the Bill and, more particularly, its Explanatory Notes that the purpose of the clause to which this amendment relates is to transfer from local authorities the power, which they have had since 2013 through the Water Industry Act 1991, to propose and consult on new fluoridation schemes and variations to or terminations of existing schemes. It transfers that authority to the department, the reason being that local authorities and the NHS, which previously had responsibility for water fluoridation schemes, have faced difficulty in implementing them. This includes, most recently, the fact that local authority boundaries are not coterminous with water flows, which requires the involvement of several authorities in such schemes in a complex and burdensome way.

The first question, to which I will return later is: if this authority is passing from the local authorities to the Secretary of State for Health and Social Care, where in the scheme of things do water companies fit? Presumably, it is the water companies themselves that will perform the act. In Amendment 156, I therefore ask simply that the Secretary of State does not exercise the powers within the Bill until such time as

“an impact assessment has been published setting out the impact on health and the environment, including a cost-benefit analysis”.

I was very grateful to my noble friend the Minister for arranging a teach-in, if you like, with the officials in the department and my noble friend Lord Reay. We both benefited from that and were very grateful for it. Subsequently, I also thank the officials for providing, in the first instance, a number of responses to my questions. In particular, I query with my noble friend the level of expenditure, which is significant. We know that we are facing a time of additional pressures—not just an energy crisis but a cost-of-living crisis—and the expenditure incurred by each fluoridating local authority in the financial year 2020-21 is not insignificant.

I will pick out those councils that relate to the largest area, broadly speaking: the West Midlands. I will round the figures up, rather than giving each individual figure. Birmingham City Council spent over £290,000 in that calendar—or, presumably, financial—year. Coventry City Council spent over £206,000. Dudley Metropolitan Borough Council spent over £198,000. Sandwell Metropolitan Borough Council spent over £188,000. Solihull Metropolitan Borough Council spent over £56,000. Walsall Metropolitan Borough Council spent over £167,000. Finally, the City of Wolverhampton Council spent over £121,000. How is this financing passed on to the consumers in those local councils? If adding fluoride to the water supply is passed in the Bill, it is for the Department of Health and Social Care to pick up the cost, so how will it do so? From which part of the budget will this come? Perhaps I have missed it, but I do not see anything in the Bill or the Explanatory Notes that says how water companies have been consulted and how they are expected to enter fluoride into the water supply.

Clearly, the debate on which I have not reached agreement with my noble friend the Minister and the department is on the extent to which it is legal to add fluoride to the water supply. In the court case that I was involved in in my training for the Scottish Bar, in preparation for joining the Faculty of Advocates, I sat through pretty much the whole of the McColl v Strathclyde Regional Council case. The petitioner could see no benefit from fluoride being added to her water supply because she had dentures and was not in need of fluoride for that reason. In fact, it was deemed ultra vires. I shall quote the relevant passage of the judgment:

“In my view the word ‘wholesome’ falls properly to be construed in the more restricted sense advocated by the petitioner as relating to water which was free from contamination and pleasant to drink. It follows that fluoridation which in no way facilitates nor is incidental to the supply of such water is outwith the powers of the respondents. The petitioner therefore succeeds on this branch of her case.”

If my recollection is correct, although they lost on the ultra vires point, the Scottish Government—I cannot remember whether it was in the UK Parliament or the Scottish Parliament—reintroduced a water Act that made legal provision in Scotland that gave them the authority. However, and as my noble friend Lord Reay rehearsed in Committee, I understand that Scotland has chosen not to go down that path. I will come on to that in a moment.

I contend—I put this to my noble friend the Minister—that adding fluoride to the water supply is a profoundly un-Conservative thing to do because it removes the element of choice. You are asking people to prevent caries; I argue that it would be better to do this through public health education by encouraging parents to teach their children to brush their teeth. I accept that removing and reducing dental caries is a public health issue, but having caries is not in itself a fatal condition, whereas fluoride is a carcinogen so adding it to the water supply is, I would argue, inherently dangerous. One thing Lord Jauncey confirmed in the case of McColl v Strathclyde Regional Council was that fluoridation potentially causes the mottling of teeth, which is surely not a public health benefit.
I want to refer briefly to Professor Vyvyan Howard. She submitted a letter to the Prime Minister in September 2021 in which she skilfully argued from a scientific basis that fluoride creates a danger of causing bone fractures. In a subsequent letter in which she put research to the Prime Minister, she said that it potentially causes damage to children’s brains. That evidence has yet to be refuted by the Department of Health and Social Care, I believe, so I look forward to hearing my noble friend respond to that this evening.
Another academic practitioner, Paul Clein BPharm, MRPharmS, has raised a number of issues, perhaps the most alarming of which concerns the main substance used in the fluoridation process in admitting fluoride to the water supplies of those councils to which it is already applied in England. Through his persistence and freedom of information responses, it has been confirmed that hexafluorosilicic acid is not a legal source of fluoride in food products. I am in possession of a letter from the MHRA that dates from as far back as 22 September 2005. It clearly states:
“Drinking water (whether fluoridated or not) clearly falls within the definition of ‘food’ for regulatory purposes. Food safety and food labelling regulations control the claims which may be made for foods.”
My understanding is that the regulations to which the Government subscribed when we were in the European Union have been transferred into retained EU law, and we are therefore still covered by the ban introduced in the EU in 2006. The position has not changed since we left the European Union: if hexafluorosilicic acid is used for these purposes as a biocide, it is strictly illegal. I want to understand on what legal basis the Government are using that substance—“hexa” for short, because it is easier to pronounce—because it would seem to be a complete abuse of, and in breach of, the Control of Pesticides Regulations and the retained EU law to which we have subscribed.
I will also refer briefly to the Scottish example of Childsmile, which has had a very vigorous and highly successful programme of ensuring that children brush their teeth by encouraging them to do so through a public health and public education campaign. As a result, the incidence of dental caries has been reduced in Scotland.
With those remarks, my opposition to the fluoridation of the water supply remains. I would like to understand further the reasons for which this power to fluoridate the water supply is being transferred away from the local authorities—which, to me, would be a better and more local way of accepting or rejecting this. What consultation has there been with the water companies and from which budget of the Department of Health and Social Care will this come?
Baroness Finlay of Llandaff Portrait Baroness Finlay of Llandaff (CB)
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My Lords, the hour is late and I shall be brief. The findings of the systematic review of the subject need to be taken into consideration. Screening of over 3,000 papers resulted in careful analysis of 254—quite a large number for a systemic review. Going through this, there are overall benefits. The benefits outweigh any documented harms, and I welcome the clause.

Baroness Bennett of Manor Castle Portrait Baroness Bennett of Manor Castle (GP)
- Hansard - - - Excerpts

My Lords, I am also aware of the hour, and offer Green support for the amendment of the noble Baroness, Lady McIntosh. We are talking here about a cost-benefit analysis. Some of the costs on which I would focus, and their impacts, go beyond the narrowly medical impacts of the people who consume the water. The question I raised in Committee was whether people today actually consume tap water, and whether they will continue to do so. I made the point that 90% of people drank tap water in 1978, but that figure had fallen to 73% by 1998. I do not believe that there have been detailed national figures since then.

I thank the noble Lord, Lord Kamall, for writing to me in response to that debate and providing a set of figures which the Government had researched. I will note two of the figures which the Minister cited in that letter. One was a 2010 Ipsos MORI survey in the West Midlands showing that two-thirds of surveyed people supported water fluoridation if it was going to improve dental health. That, of course, shows that a third of people are not supporting it. This is the group about which I am concerned—a group which I have encountered many times and in many parts of the country. I do not agree with all their concerns, but that is a fact.

I noted that the Minister also cited a north-east survey from 2021 where 60% of people backed water fluoridation. As the noble Baroness, Lady McIntosh of Pickering, said, we are talking about people not having a choice about consuming that water, unless they choose to buy bottled water. Anyone going to a supermarket in Sheffield, particularly in its poorer areas, will see people buying bottled water in very large quantities. One of my concerns, and where I hope the cost-benefit analysis would come in, is looking at the sociological issues. The Government should be doing a great deal more to promote the consumption of tap water and to discourage the use of bottled water. However, as the Bill currently stands, it risks pointing us in the opposite direction.

The noble Lord, Lord Storey, talked in Committee about how Liverpool City Council had very successfully engaged in a targeted programme to address the most vulnerable communities and ensure that dental health was improved. It demonstrably was improved.

The Minister said, “Oh well, any local authority can do the same thing.” I point out to him that local authorities’ budgets are enormously overstretched—something we have addressed in the social care elements of the Bill in particular. Would the Government consider perhaps taking the money that might be spent on fluoridation and giving it to local authorities for targeted campaigns to reach the children who need it most?

Baroness Merron Portrait Baroness Merron (Lab)
- Hansard - - - Excerpts

I thank the noble Baroness, Lady McIntosh, for moving this amendment. I feel that we have discussed these issues at considerable length at previous stages of the Bill, so I do not wish to go over old ground, other than to say that the Royal Society for Public Health, the British Dental Association, the Chief Medical Officer and many others are very much in favour of greater fluoridisation because, on balance, there is strong scientific evidence that it is an effective public health intervention. In other words, it is the single most effective way to reduce oral health inequalities and tooth decay rates, especially among children, and it is, as your Lordships’ House knows, recommended by the World Health Organization. On all these positive points, I am very much inclined to agree, and do not feel that the amendment before your Lordships’ House would be helpful to support that intervention.

Earl Howe Portrait Earl Howe (Con)
- Hansard - - - Excerpts

My Lords, I thank my noble friend Lady McIntosh for her clear introduction to Amendment 156. The first thing for me to underline is the point she made: the water fluoridation provisions in the Bill will simply transfer the power to initiate fluoridation schemes from local authorities to the Secretary of State. The Bill does not compel the expansion of fluoridation. Any future proposals to establish new schemes would be subject to funding being secured and public consultation, and I will come on to both those things in a second.

The noble Baronesses, Lady Finlay and Lady Merron, are quite right that the evidence is strong that water fluoridation reduces the incidence of tooth decay for both adults and children, but nobody is complacent about public health. We will continue to be under a legal duty to monitor the health effects of water fluoridation on populations with schemes and to report no less than every four years. Monitoring the evidence is a continuous process and involves colleagues from multiple disciplines, including toxicology.

The law here is explicit. Water companies are required to comply with legislation to protect employees, consumers and the environment from harms. 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 in relation to developments. The installation of water fluoridation plants in some areas may fall within scope. Furthermore, the Environment Act 2021 will, when brought into force, place a duty on Ministers of the Crown to have due regard to the policy statement on environmental principles in our policy-making; hence new and revised policies will need to take into account their impact on the environment. I would like again to reassure your Lordships that the evidence is kept under review.

My noble friend referred to the case of McColl v Strathclyde, in which I think she said she was involved. Perhaps I could just state for the record that the plaintiff’s arguments in that case about the safety and effectiveness of fluoridation were all explicitly rejected by Lord Jauncey, who found that there was no convincing scientific evidence supporting that position. Since that ruling by Lord Jauncey, 38 years ago, it remains the case that there is no convincing scientific evidence of water fluoridation being harmful to health. Indeed, were we not to have any fluoridation, there would still be areas of the country where fluoride is naturally present in drinking water at a similar level to that achieved by a fluoridation scheme.

My noble friend suggested that a useful alternative to fluoridation might be a scheme such as those we see in various areas of the country—she mentioned Scotland—where toothbrushing is supervised. Certainly, daily supervised toothbrushing programmes can be entered into by local authorities and there are already schemes around the country; Public Health England publishes guidance to support local authorities interested in entering into such schemes. However, we are not necessarily dealing with an either/or; water fluoridation works well with other oral health improvement programmes such as supervised toothbrushing. Water fluoridation also benefits both adults and children and, unlike other approaches, does not rely on behaviour change.
My noble friend asked about costs. Any expansion plans in this area will be subject to funding being secured, as I mentioned, and the cost of a new scheme is bound to vary depending on the size of the area to be fluoridated and the number of water fluoridation plants that might be needed. However, I suggest to her that one should not simply look at cost; based on Public Health England’s current return on investment tool, water fluoridation in areas of high deprivation offers a projected return on investment after five years of £35 for every £1 spent on operational costs.
My noble friend asked about the consultation process and how this will be tackled. We will carry out a public consultation to gather views on future consultations. Following that consultation, we will be required to set down in secondary legislation how we will consult on water fluoridation proposals in the future. These regulations will be subject to the affirmative procedure and will be debated in Parliament during the coming year.
Finally, any future public consultation on expansion would also include information on the impact of any proposals on health, the environment and cost-benefit analysis. I hope that these reassurances will satisfy my noble friend, at least in part, and that she will feel able to withdraw her amendment.
Baroness McIntosh of Pickering Portrait Baroness McIntosh of Pickering (Con)
- Hansard - - - Excerpts

My Lords, I am most grateful to all those who have spoken and to my noble friend for the reassurances that he has given. I am particularly grateful to the noble Baroness, Lady Bennett, for pointing out the importance of the cost-benefit analysis. It is disappointing that we have not been told the relative cost-benefit of supervised toothbrushing, particularly since a number of experts, including the adviser to the Select Committee in the other place, have argued that it would be a much better route to go down. I take great comfort from my noble friend saying that the situation will be kept under constant review and that this will continue as more evidence emerges from Sweden, the US and other places outside the UK. I shall, obviously, watch very carefully the secondary legislation to which my noble friend referred. With those few remarks, I beg leave to withdraw my amendment at this stage.

Amendment 156 withdrawn.
Amendments 157 and 157A
Moved by
157: After Clause 164, insert the following new Clause—
“Child safeguarding etc in health and care: policy about information sharing
(1) The Secretary of State must publish and lay before Parliament a report describing the government’s policy in relation to the sharing of information by or with public authorities in the exercise of relevant functions of those authorities, for purposes relating to—(a) children’s health or social care, or(b) the safeguarding or promotion of the welfare of children.(2) In this section, “relevant functions” means functions relating to children’s health or social care, so far as exercisable in relation to England.(3) The report must include an explanation of whether or to what extent it is the government’s policy that a consistent identifier should be used for each child, to facilitate the sharing of information.(4) The report must include a summary of the Secretary of State’s views about implementation of the policy referred to in subsection (1), including any views about steps that should be taken to overcome barriers to implementation.(5) The report must be published and laid before Parliament within one year beginning with the date on which this section comes into force.(6) In this section “child” means a person aged under 18.”Member’s explanatory statement
This amendment inserts a new clause requiring the Secretary of State to publish and lay before Parliament a report describing the government’s policy in relation to information-sharing by or with authorities with health and social care functions, for purposes relating to children’s health or social care or the safeguarding or promotion of the welfare of children.
157A: After Clause 164, insert the following new Clause—
“Licensing of cosmetic procedures
(1) The Secretary of State may, for the purposes of reducing the risk of harm to the health or safety of members of the public, make regulations—(a) prohibiting an individual in England from carrying out specified cosmetic procedures in the course of business, unless the person has a personal licence;(b) prohibiting a person from using or permitting the use of premises in England for the carrying out of specified cosmetic procedures in the course of business, unless the person has a premises licence.(2) In this section—“cosmetic procedure” means a procedure, other than a surgical or dental procedure, that is or may be carried out for cosmetic purposes; and the reference to a procedure includes— (a) the injection of a substance;(b) the application of a substance that is capable of penetrating into or through the epidermis;(c) the insertion of needles into the skin;(d) the placing of threads under the skin;(e) the application of light, electricity, cold or heat;“licensed premises” means premises in respect of which a premises licence is in force;“local authority” means—(a) a county council in England;(b) a district council in England;(c) a London borough council;(d) a combined authority established under section 103 of the Local Democracy, Economic Development and Construction Act 2009;(e) the Common Council of the City of London (in its capacity as a local authority), the Sub-Treasurer of the Inner Temple or the Under Treasurer of the Middle Temple;(f) the Council of the Isles of Scilly;“personal licence” means a licence, granted by a specified local authority under the regulations, which authorises an individual to carry out a cosmetic procedure of a description specified in the licence;“premises licence” means a licence, granted by a specified local authority under the regulations, which authorises premises to be used for the carrying out of a cosmetic procedure of a description specified in the licence; “specified cosmetic procedure” means a cosmetic procedure of a description specified in the regulations;“specified local authority” means a local authority of a description specified in the regulations.(3) The provision which may be made by regulations under this section by virtue of section 166(1)(a) includes—(a) provision amending Schedule 5 to the Consumer Rights Act 2015 (investigatory powers);(b) provision repealing, revoking or amending provision made by or under any local Act.(4) Before making regulations under this section, the Secretary of State must consult such persons as the Secretary of State considers appropriate.(5) Schedule (Licensing of cosmetic procedures) makes further provision about regulations under this section (including provision for the imposition of fees, the creation of criminal offences and financial penalties).”Member’s explanatory statement
This new Clause confers power on the Secretary of State to establish a licensing regime in connection with non-surgical cosmetic procedures.
Amendments 157 and 157A agreed.
Consideration on Report adjourned.
House adjourned at 11.19 pm.