Grand Committee
Product Regulation and Metrology Bill [HL]
(1 day, 3 hours ago)
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The Deputy Chairman of Committees (Viscount Stansgate) (Lab)
My Lords, in the unlikely event of a Division, the Committee will be adjourned for 10 minutes. Much more likely is that some Members may have been adversely affected by Storm Bert and may not be able to join us for this session.
Clause 1: Product regulations
Amendment 11
Lord Sharpe of Epsom
“(4A) The Secretary of State must also by regulations make provision aimed at promoting investment, fostering innovation, and encouraging economic growth in relation to the marketing or use of products in the United Kingdom.(4B) Regulations under subsection (4A) must support—(a) the creation of economic incentives for businesses that contribute to economic growth, and(b) the alignment of product regulations with the strategic aim of positioning the United Kingdom as a global leader in innovation”Member’s explanatory statement
This amendment ensures that the regulations in the Bill prioritise economic growth and the United Kingdom’s role in innovation and economic expansion.
Lord Sharpe of Epsom (Con)
My Lords, in moving Amendment 11, I shall speak also to Amendments 104A and 124A in my name.
As highlighted by the Delegated Powers and Regulatory Reform Committee, Clause 1 in its current form should be removed—a theme that we have explored already and to which we will no doubt return. This amendment, however, directly addresses a critical gap in the current Bill by ensuring that regulations do not focus merely on product safety, environmental concerns and operational efficiency but actively promote investment and foster innovation.
The news coming from today’s CBI conference makes sobering reading. The chief executive of the CBI has said that employers have been forced into “damage control mode”. The head of the company that makes McVitie’s digestive biscuits said that
“it’s becoming harder to understand what the case for investment is … to make a difference in the growth rate of the economy”.
Again, the chief exec has said that CFOs are asking, “Can we afford to invest?”
I have no wish to talk down the economy or try to score cheap party-political points, but the fact is that life has got harder for big business recently. No doubt noble Lords opposite will say, “Well, they would say that, wouldn’t they?” But they are also committed to providing an environment that fosters growth and I know them to be sincere in that ambition, so we should all take these comments seriously.
It is not just big business. Last week, analysis by the Altus Group said that the planned reduction in business rates relief would lead to a more than doubling of rates for shops, pubs and restaurants next year. Coupled with rises in national insurance contributions and other operational pressures, SMEs are facing difficult times. But they represent the heartbeat of our economy and some of them will hopefully go on to become big businesses.
In today’s competitive global economy, economic growth cannot be secondary. The Bill should prioritise creating an environment where businesses can thrive, develop new technologies and compete internationally. It is vital that our regulations should be aligned with the strategic aim of positioning the United Kingdom as a global leader in innovation. In the post-Brexit world, the UK’s economic success is intrinsically tied to its ability to lead in innovation, which is why my Amendment 11 is critical. It ensures that product regulation supports the creation of an environment conducive to technological advancement and cutting-edge industrial leadership. It strengthens the Bill by ensuring that it is not about just managing risks or regulating product use but about creating a dynamic, forward-thinking market where businesses have the tools, resources and incentives to innovate and expand. Without these provisions, there is a risk that the UK could fall behind in the global race for innovation and business growth. If we do not explicitly ensure that our regulations align with our growth objectives, we could inadvertently stifle entrepreneurship and technological progress.
So how are we to become a global leader? The answer surely lies in aligning ourselves with the strongest global partners in the world today. If we are to maintain and enhance our position as a leading economy, we must look beyond a single trading bloc, particularly one whose economic influence is shrinking on the global stage—a theme we explored in debate last Wednesday. For example, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the CPTPP, represents some of the fastest-growing economies in the world. Countries such as Japan, Australia, Canada and New Zealand, as well as emerging markets in Asia, are showing much more significant economic growth potential than others.
To lead the world, the UK must be flexible in its approach to trade and regulation. We need to reduce barriers and align ourselves with the economies that will drive future growth and innovation, rather than being tethered to a bloc that is not growing as fast as others. Amendment 11 in my name will enable us to do just that: focus on fostering global partnerships with the most dynamic economies.
Regarding Amendment 104A, a regulatory sandbox means an environment that allows businesses to explore and experiment with new, innovative products under regulatory supervision. This amendment is important for the development of innovative products affected by the Bill. It is an important step forward in fostering a regulatory environment that encourages creativity and innovation while ensuring safety and compliance. Regulatory sandboxes are an effective and proven model used to support businesses in testing innovative ideas. By introducing the importance of regulatory sandboxes in the Bill, we are not just helping businesses to navigate regulatory hurdles but promoting innovation by giving businesses the space to trial and refine their ideas.
Regulatory sandboxes will create a framework in which businesses can develop and test new products, contributing to the growth of the economy and the success of British businesses in the global marketplace. I urge noble Lords to support this amendment to pave the way for more innovation, more competitive businesses and, ultimately, a stronger economy.
I thank my noble friend Lady Lawlor for bringing forward Amendment 11A. The amendment is a clear and strong signal that we are committed to ensuring that our regulations actively foster economic growth, innovation and the global competitiveness of UK businesses. By encouraging the marketing and use of products in domestic and foreign markets, we are helping to open doors for UK businesses to grow their customer base, create jobs and increase exports. I commend my noble friend for this amendment. I look forward to a positive reception for all these amendments from the Government. I particularly look forward to the positive impact that they will have on businesses across the United Kingdom. I beg to move.
Baroness Lawlor (Con)
My Lords, I shall speak to my Amendment 11A, which would insert a new subsection to the effect that regulations
“must promote growth and effective production, foster innovation and encourage the use and marketing of products in the UK’s domestic and foreign markets”.
I declare an interest in that I have commissioned a number of studies and analyses at Politeia, the think tank where I am research director, which aim to examine and promote UK international trade and the UK economy. I support the aims of safety, containing costs and compliance with safety regulations, but I urge that we think about products having to operate efficiently and effectively. The problem we face is how best to do this consistent with promoting the entrepreneurial and innovative instincts of those bringing new products to the market, who my noble friend Lord Sharpe mentioned, and the growth this allows. I support my noble friend’s amendment to put growth at the heart of this measure.
During the consultation process for a product regulatory framework since 2021, of which this Bill is the outcome, producers and their representatives stressed their priorities for regulation. I am grateful to the Government for their response to this long consultation process. Producers stressed that it should be outcomes-focused and risk-based, should have greater simplicity, proportionality and consistency across legislation and powers and should deal with the serious challenges and opportunities that this country now faces. A further consultation to develop the product safety regime took place in August 2023, with businesspeople and business representatives that are listed in the Government’s helpful response. It found broad agreement on the need for a regulatory approach that promotes a regime ready to respond to hazards but that allows temporary derogation during emergencies for supplying essential products—in other words, it is dynamic—and makes for safer online shopping and promotes digital labelling and an enhanced national regime.
The Minister said at Second Reading and has reiterated to this Committee that the Government have listened to business. Their priorities are summarised in the Government’s consultation document. They are designed to allow for effective operations and to promote growth as a priority, which I and my noble friend Lord Sharpe are urging we need. The rules should be demand-led and reflect the capacity of our businesses to innovate, be entrepreneurial and grow their workforces and their range of products along with the high standards and competitive costs that consumers want.
Nowhere in the Government’s response document do we find businesses wanting a regulatory regime that brings greater rigidity in process rather than being outcomes-led, one that is risk-averse rather than equipped to deal with the real level of risk posed by products or processes, one that treats every product as bearing the same risk or being under a one-size-fits-all rule, or a regime that is disproportionate, untargeted and unduly complex. Yet that scenario, rejected by business, is inherent in the EU legal arrangements that the Government wish to be able to adopt for our businesses under Clause 1(2), to which my amendment is addressed. That can only stymie growth, contrary to the express wishes of the Government. For those reasons, I propose that growth should take priority over the arbitrary exercise of power to introduce the rigidity and complexity of an EU system which is not outcomes-focused or risk-based; nor is it proportionate or known for simplicity.
I will give your Lordships an illustration, for which I owe thanks to Professor David Collins, who holds the chair of international economic and trade law at City, University of London. He draws attention to the unnecessarily burdensome EU REACH regulation—on the registration, evaluation, authorisation and restriction of chemicals. Collins explains that it has extensive requirements for registering very low-risk substances. For example, certain food-grade natural substances that have been used safely for centuries will require expensive registration. Under the EU’s REACH, if a company uses more than one tonne per year of natural fruit extracts or oils, and products such as soaps or cosmetics, it needs full registration, including extensive safety data packages, even when these substances have been safely used in food for ages. This can cost tens of thousands of euros per substance. The relevant EU legislation is Regulation (EC) 1907/2006 REACH, and the key sections on registration requirements are primarily in Title II, Articles 5/24.
The EU’s post-Brexit UK REACH maintains similar core principles but has proposed a more proportionate approach for these well-established natural substances, with simplified registration requirements planned for ingredients with long histories of safe use. Although the overall goal of chemical safety is vital, requiring extensive registration for substances such as olive oil or lemon extract when used in non-food products adds to cost without proportionate safety benefit, and it is not needed. The safety of these materials could be adequately assured through simpler mechanisms. The UK REACH regulation, created through the REACH etc. (Amendment etc.) (EU Exit) Regulations 2019, Statutory Instrument 2019/758, aims to do this and does it very effectively.
Moreover—I refer to my noble friend Lord Sharpe urging that we align the UK economy with the strongest, most dynamic economies in the world—by relying on our own laws it will not only help our businesses but will allow us to do exactly that. My noble friend Lord Sharpe mentioned the CPTPP agreement; as Professor Collins says, it
“does not mandate blanket mutual recognition of conformity assessments for food safety among its members”
but it does
“include provisions that encourage members to accept other members’ conformity assessment results. It also facilitates acceptance of conformity assessment results through mechanisms like technical discussions and explanations of requirements. It also allows for sector-specific mutual recognition arrangements to be negotiated between members”—
which are very important. Professor Collins continues:
“So the CPTPP promotes regulatory cooperation and transparency but preserves each member’s right to maintain their own food safety standards and assessment procedures. Members must ensure their requirements are based on science and international standards where they exist, but aren’t required to automatically accept other members’ assessments. This is similar to what the WTO TBT Agreement does, but it goes further in terms of cooperation”.
Lord Kirkhope of Harrogate (Con)
My Lords, I came here full of hope and expectation this afternoon; indeed, I even indicated to my noble friend Lord Sharpe that, on this occasion, I was here to support his Amendment 11 and Amendment 11A in the name of my noble friend Lady Lawlor, because, as one reads them on the page, they seem to have a lot of merit. However, I regret that, as my noble friends have spoken, they have in their speeches used these amendments to diminish the importance of our major market in Europe and our relationship with the European Union. Noble Lords will be delighted to know that I am not, therefore, going to concentrate any further on those matters but shall instead turn immediately—to my own relief and that of those parties—to Amendments 104A and 124A.
I want to refer in particular to sandboxes, a very interesting area that most members of the public probably do not have a clue about, other than from their visits to coastal regions during the summer holidays. Of course, sandboxes are terribly important in the context of this Bill. My noble friend Lord Sharpe was right to allude to them and to say how important they are; indeed, there are already in place regulations referring to their use, to how IP can be protected, as has been mentioned to me, and so on. However, I want to broaden this issue out a tiny bit. In winding up on this group, can the Minister clarify the way in which sandboxes are protected and how, from the point of view of UK plc, we can make use of them without danger either to the thinking that goes into innovation in them or to the overall position of this country apropos markets, wherever they may be in the world?
I am particularly interested—I know that other noble Lords present this afternoon may well speak on this—in sandbox use in the development of technology and AI. This is an area in which this country has every opportunity to lead the world. Certainly, sandboxes are one way that one can experiment and bring in new ideas without the risk or danger of them being exploited by others, against the interests of this country. I merely say that I support Amendments 104A and 124A, in the principles that they debate, but I would like the Minister to clarify how we can bring together sandboxes, in whichever field they may be deployed, to the benefit of the country.
Lord Lansley (Con)
My Lords, I apologise that I was not able to be with the Committee on its first day, nor will I for much of this afternoon, but I look forward to returning for my amendments on Wednesday. I support my noble friend Lord Sharpe’s amendment.
When we debated the regulation of medical devices in the Medicines and Medical Devices Act 2021, we established that safety and safeguarding public health was its overriding objective. However, we went on to say in what is now Section 15(3) of that Act that in considering whether regulations should be made, and whether they would contribute to the objective of safeguarding public health,
“the Secretary of State must have regard to”—
I commend that language to my noble friend, rather than “must support”, which I think takes it a bit far and creates conflicting duties—
“the safety of medical devices … the availability of medical devices … the likelihood of the United Kingdom being seen as a favourable place in which to … carry out research relating to medical devices … develop medical devices, or … manufacture or supply medical devices”.
I draw attention to the third of those. The structure of the existing legislation on the product requirements for medical devices already incorporates an expectation that we consider economic activity, economic growth and our comparative position in the manufacture or supply of such products. I say to my noble friend that that is an alternative formulation which thoroughly supports, through the precedent of a very closely related area of regulation, the idea that economic activity of that form should be part of the consideration of whether and how regulations should be made.
Lord Leong (Lab)
My Lords, I thank the noble Lord, Lord Sharpe, and the noble Baroness, Lady Lawlor, for their contributions on Amendments 11 and 11A, which specify that regulations made under the Bill should promote investment, foster innovation and encourage economic growth and investment. This Government are committed to attracting investment, as illustrated by the £63 billion pledged at the recent international investment summit. Britain is open for business.
I assure noble Lords that growth is the number one mission of this Government and our new industrial strategy, to be published in the spring, is central to it. The strategy will focus on tackling sector-specific and cross-cutting barriers to growth for our highest-potential growth-driving sectors and places, creating the right conditions for increased investment and high-quality jobs and ensuring a tangible impact in communities right across this country.
I also thank the noble Lord, Lord Sharpe, for his Amendments 104A and 124A, which seek to create regulatory sandboxes where new products could be trialled under regulatory supervision, as indicated by the noble Lord, Lord Kirkhope. I recognise and welcome the intention behind the amendments, which seek to encourage innovation. The Office for Product Safety and Standards within my department already works to provide businesses with guidance and support as they develop and market products. We also support local authorities in their work as primary authorities. This allows businesses to receive assured and tailored advice on meeting environmental health, trading standards or fire safety regulations from a single local authority, then applying this advice nationally. The underpinnings of our product safety regime are based on extensive engagement with businesses. Whether it is on regulatory change, the development of standards or the work of the OPSS as a regulator, the relevant bodies consult extensively across industry.
I am always open to new ideas on how to support businesses to innovate. I understand that in 2022 the Office for Product Safety and Standards supported the Home Office in a regulatory sandbox trialling electronic ID for alcohol sales. However, I am concerned about mandating regulatory sandboxes in the Bill. Product safety is, after all, about avoiding potentially serious risks to people and their property, and anything that would relax regulations in this way, even as a trial, would need careful consideration. It could also commit local responsible authorities to run trials in their areas without sufficient consultation or preparation. This could place an undue burden on local authorities, diverting resources and capacity from their primary responsibilities.
This Government are committed to ensuring that any regulations made under this Bill will support the interests of UK businesses and consumers, providing regulatory certainty and creating the conditions for investment, innovation and economic growth. The Government are always open to debate to ensure that we can support businesses to deliver safe and effective products. I hope I have demonstrated to the noble Lord the extent to which regulators already work closely with businesses to achieve this.
In response to the point from the noble Lord, Lord Sharpe, about SMEs, I was an SME once; we do not want to burden SMEs with additional regulatory or financial cost, if possible. This Government are pro-business and pro-worker and have provided certainty, consistency and confidence—for which investors have been looking for a very long time. Massive tax reliefs are available to investors through the EIS, the SEIS, VCTs and all kinds of grants, including patent grants for any new industries. The Government have shown that we are committed to investment and growth.
I hope that I have been able to reassure noble Lords that the Government are committed to fostering growth through all our policies. This will be set out in more detail in the forthcoming industrial strategy, which we will publish in the spring. I therefore ask the noble Lord to withdraw his amendment.
Lord Sharpe of Epsom (Con)
My Lords, I thank all speakers, in particular my noble friend Lady Lawlor for so eloquently introducing her amendment. I say to my noble friend Lord Kirkhope that my remarks are in no way meant to diminish any of our trading relationships; the point is that these amendments are designed to look after our national interest. It may well be that aligning with the EU is in our national interest, in which case we absolutely should, but if it is not, then we should not, and any reference to relative economic growth is merely factual. I thank my noble friend very much indeed for his supportive remarks on Amendments 104A and 124A.
I also thank my noble friend Lord Lansley for his perspective, which will be very helpful when we come to later stages of the Bill. I also thank the Minister for his remarks, which provided helpful clarity. I take comfort from the fact that he remains open to new ideas. We will consider his remarks carefully but are very pleased to hear his reassurances regarding SMEs. For now, I beg leave to withdraw my amendment.
Baroness Crawley
Member’s explanatory statement
This amendment would broaden the definition of items subject to the new regulatory framework of product regulation to ensure that all digital as well as non-digital products are within scope.
Baroness Crawley (Lab)
My Lords, in moving Amendment 12 in my name and those of the noble Earl, Lord Lindsay, and the noble Lord, Lord Foster of Bath, I also support the amendment from the noble Lord, Lord Fox. I welcome the noble Lord, Lord Sharpe of Epsom, to his new post and thank my noble friend the Minister for his courtesy in organising several meetings for Peers and organisations interested in this Bill; it was remiss of me not to do so earlier.
Lord Foster of Bath (LD)
My Lords, this is an important group of amendments. No doubt, the noble Lord, Lord Sharpe, will shortly set out his amendments but, as I understand them, by deleting bits of the Bill they provide an opportunity for us to have a debate on what is meant by a “product” and by the “use of products”. The other two amendments are in the names of the noble Baroness, Lady Crawley, and my noble friend Lord Fox and have a similar purpose. My noble friend cannot be with us today because he is abroad on parliamentary business in connection with NATO. These amendments will help us to get more clarity on what is covered by a “product” and its use and will help to future-proof the legislation, in the case of Amendment 12 by ensuring that all digital and non-digital products are within scope and in the case of Amendment 13 by ensuring that all operating systems and internet-connected products are within scope.
The noble Baroness, Lady Crawley, very clearly set out the arguments for why this is needed, and I fully support her, but my noble friend Lord Fox’s amendment, which is also a probing amendment, seeks to find out whether the Government’s intention is that operating systems and interconnected products will be covered by the provisions of the Bill. Some may recall that in an earlier grouping I expressed concern about what appears to be the limited way in which the Government consider products as just things. I sought to explain that we cannot always consider a product in isolation as some products are installed as part of a system, and I argued that we should take the whole system into account.
My noble friend’s amendment expresses a similar point. It seeks to ensure that the Bill recognises that the operational characteristics of many products are, effectively, changeable. For instance, household products are increasing controlled by operating systems that can be and are controlled by the vendor remotely. The legislation needs to take this into account in two separate ways. The first, and most simple, is that there should be a clear obligation on the vendor to demonstrate good faith in ensuring its products’ operating systems are up to date and are protected, for example, from external malign attack. Secondly, there needs to be a process whereby material changes in the characteristics of a product continue to meet regulations that they met before the changes.
Many noble Lords will already have heard my noble friend Lord Fox’s particular concern about references to the health and safety of domestic animals in the Bill. He has picked it up on several occasions. He sought to explain his amendment to me in relation to those references. He pointed out that, for example, a remote vacuum cleaner may be programmed to behave in a way that ensures that family pets are not in danger of being harmed by it. He went on to point out that a remote change might disregard this safeguard and so endanger the health and safety of domestic animals. My noble friend argues that without his amendment, or something similar, it would appear that there is no way in which the measures in the Bill could enable the policing of such remote revisions to product properties.
More generally, these amendments in this group seek to probe the Government further on what they believe are covered by “products” and which uses of products are covered by the proposed legislation. I very much look forward to hearing the Minister’s response on those issues and to hearing the noble Lord, Lord Sharpe, explain his amendments more effectively than I have sought to do.
Lord Sharpe of Epsom (Con)
My Lords, I thank the noble Baroness, Lady Crawley, for her remarks. Obviously, defining “products” is a key consideration in much of what we have to discuss in this Bill. It is a subject to which we will return later today. I thank the noble Lords for introducing their amendments. It was very eloquently done. They certainly deserve consideration and comprehensive answers from the Government.
I will speak to Amendments 18 and 19 standing in my name. The Bill as it stands—and I am afraid this is going to be rather labouring a point that we discussed a lot last week—has been widely criticised for being skeleton legislation with much of the substance being delegated to Ministers through statutory instruments. The Delegated Powers and Regulatory Reform Committee has rightly pointed out that this leaves “almost no substance” or perhaps, as the noble Baroness, Lady Crawley, described it, no clear markers in the Bill, giving Ministers excessive and unaccountable discretion to regulate in important areas, such as product marketing and safety, without sufficient parliamentary scrutiny or oversight.
Clause 2 is a prime example of this, because it grants wide powers to Ministers to make regulations on a wide range of product characteristics—but without any clear or substantive detail. By keeping paragraph (a), the Bill opens the door to the possibility of Ministers creating regulations that lack transparency or specificity. I find the wording concerning and unnecessarily vague. For example, the phrase “other characteristics of products”—or, as the noble Lord, Lord Foster of Bath, described it, “just things”—is far too broad and could allow the Government to regulate anything under this clause, with little or no clear limit or definition.
The lack of clarity here is a significant issue, not least because businesses and producers rely on clear, specific regulations to know what is expected of them and to ensure that they remain compliant. Under this clause, they are left in the dark. What exactly are we talking about when we refer to “other characteristics”? Are we talking about the design of products, marketing methods or even the raw materials that are used in manufacturing? Small businesses and start-ups are especially vulnerable to such unclear regulations, as they may struggle to interpret or comply with such an open-ended provision.
This provision, in effect, gives Ministers the power to define and change the scope of regulations without sufficient clarity or transparency. Ministers could, under this clause, make regulations to cover an incredibly wide range of product characteristics, creating significant uncertainty for the market. We believe that this is an unacceptable level of ministerial discretion. With such a clause, the Government could, in effect, regulate anything and everything related to products. We do not think that we can afford to pass a Bill that leaves businesses and consumers in the dark and subject to the whims of ministerial power. This clause should be completely rewritten or removed. If the Government cannot provide a more specific targeted framework for these regulations, we must consider removing it entirely on Report.
With Amendment 19, there are the same issues. At present, there is no clear definition of what constitutes the “use of products”, nor any explanation as to how the Government intend to regulate it. This lack of clarity presents a significant issue, as it allows Ministers broad and undefined discretion to determine how products should be used and how they are to be regulated. This could easily lead to overreach, and, given how the Government have argued so far in some areas, regulations could be imposed with little or no accountability or scrutiny, leaving businesses uncertain about the future of their operations.
I am very pleased that the Minister has talked repeatedly about giving businesses certainty, particularly in aligning with EU regulations. However, we need more in the Bill to suggest certainty in the areas that I have just described, and I hope that he will be able to provide some reassurance.
Lord Leong (Lab)
My Lords, as technology and regulation continue to develop, we need new powers to address future threats and hazards and to ensure a continued supply of safe, accurate and compliant goods.
I thank my noble friend Lady Crawley and the noble Lord, Lord Fox, for their Amendments 12 and 13, and the noble Lord, Lord Foster, who introduced the latter. I agree that we need a robust product safety framework that can reflect the latest risks and hazards and keep consumers safe and protected. The Government have worked hard to ensure that the powers in the Bill capture the multitude of products that fall within our product safety framework, as well as new products that might be placed on the market and present risks to consumers in future.
For the purposes of the Bill, products are defined as
“tangible items that … result from”
a “method of production”. This definition ensures that we can capture a wide range of manufactured products marketed or used in the UK, from cosmetics to complex machinery. There are a number of instances where our current regulation and product safety work covers software: for example, where certain products are reliant on software, or our work to enforce certain software security requirements under telecommunications legislation. Following my noble friend Lady Crawley’s comments on smart doorbells, I confirm that an app connected to a smart doorbell would be covered by the Bill where it affects the physical safety of the product. The Product Regulation and Metrology Bill would ensure that our general ability to regulate the safety of all products can take account of software, as well as the impact of software on the performance of any particular product.
Let me assure noble Lords that we have carefully considered the scope of products that we seek to cover, and we are future-proofing as much as we can by allowing regulations to also cover intangible components of physical products. This includes things such as software, as I mentioned, where they form part of a tangible product. As such, the Bill will allow us to regulate interconnected products in so far as the safety of the physical product is affected. In this way, we can ensure that we are able to regulate the role of these intangible components in the risk that physical products may present.
Lord Foster of Bath (LD)
I am grateful, because this takes this back in a sense to an earlier group. The Minister has again referred to the issue of installation. Can he say categorically, on the issue of use, whether use will always include installation—or is it that it “may” include installation, as he said? Is it “will” or “may”?
Lord Leong (Lab)
I can give the noble Lord the assurance that it is “will”.
Baroness Crawley (Lab)
My Lords, I thank my noble friend the Minister and the noble Lords, Lord Sharpe and Lord Foster, who have contributed to this short but useful debate.
I will not repeat the valid and important points that have been made, but I ask the Minister to have another look at the Bill’s definition of “product” in the light of our discussion this afternoon. However, I accept his explanation of software regulation going forward: that was an important point he made. For now, I beg leave to withdraw the amendment.
Lord Holmes of Richmond
Lord Holmes of Richmond (Con)
My Lords, it is a pleasure to take part in this second day of Committee on the Bill, and a pleasure to speak on this group of amendments. I will move Amendment 14 in my name and speak also to Amendments 54, 75 to 78 and 99 to 101. In doing so, I declare my interests, not least my technology interests, as set out in the register, in particular as an adviser to Socially Recruited, an AI company.
The purpose of these amendments is to bring greater clarity to consumers, citizens and indeed our whole society and economy when it comes to the interaction of AI across so many sectors of our lives, not least in product production, deployment and use. Each amendment has a specific focus. When taken as a suite, they would make a significant difference to citizens’ and consumers’ understanding of where AI has been used in the production of a product or is inherent to the deployment and use of that product—which can only be a positive thing.
Amendment 14 seeks to amend the definition of “production” to highlight where AI has been involved in the production process. As with the previous group of amendments, I could just as easily have drafted an amendment expanding the definition of “product”, because it seems that, with the Bill as drafted, we have a product regulation regime and a production of product regime that do not really fit the economy, society and methods of production we now have across our daily experience.
I will give another example. We have had doorbells and out-of-control vacuum cleaners, potentially. Now let me give you the Minister’s fridge. After a hard day in Committee, the Minister returns home and takes out a lovely piece of soft cheese. Unfortunately, because the AI involved in that fridge has decided, for whatever reason—we know not—to increase the temperature in the fridge to 25 degrees, the Minister becomes very ill as a result of his midnight snack. How does the Bill help the Minister in his travails? The fridge is clearly a product and would be covered, but in no sense can the safety, operation and use of the fridge be of any benefit in the set of circumstances that resulted from AI acting in the way it did. That is what Amendment 14 is all about and I look forward to the Minister’s response on how the Bill could be amended to give better protection, certainty and understanding where AI is involved in the production of products, and indeed in the products themselves.
Similarly, that theme continues through Amendment 54. I believe that, if we are to have greater clarity and consistency, it would be helpful for the Government to undertake a review of all product legislation and regulation, both to see how it would deal with all the issues, opportunities and challenges around artificial intelligence and to assess all that statute and regulatory framework’s ability to look at competency in addressing AI, in terms of how it is operating and having an impact on so many people’s lives because of the products in which it is already embedded, whose use it is part of and which it controls. Oftentimes, it has an impact on people without them even knowing that AI is in the mix. I look forward to the Minister’s response on this potential review.
Amendments 75 to 78 look at labelling. I thank the noble Baroness, Lady Bennett, for signing Amendment 75; similarly, I should have thanked the noble Viscount, Lord Trenchard, for co-signing Amendment 14. If consumers are to have greater understanding of the products they are buying, it would seem helpful for there to be labelling of that product—simple labelling stating that AI was involved in the production of the product and/or is involved in the product. By this, I mean not only a simple label to alert consumers if that is the case but a QR code with far more detail so that all consumers can be aware of the AI elements of a product’s production, particularly in terms of its power usage, water usage and compute usage. Clause 5 of my Artificial Intelligence (Regulation) Bill, to which the Minister in opposition gave full-throated support, covers a number of these issues. I am interested in the Minister’s response to the concept of labelling around product where AI has been involved in the production of a product or is involved in its use.
Amendment 76 goes specifically to the music industry, where artificial intelligence itself has created music products. Again, to my mind, this should be labelled so that consumers know how music has come into being—that is, if it is simply AI-generated with no human involvement.
Amendment 77 offers a statutory option for the Minister to consider amending the Consumer Rights Act 2015, which would give far greater clarity to musicians—indeed, to all creatives across our economy and our society. The current situation is that many creatives find themselves on the wrong end of AI usage of their creative works, with no respect, no consent and no remuneration.
Amendment 78 moves us on and takes us into the areas of likeness and other elements of our personal IP. If AI products take such IP rights, this is not currently covered. I am interested in the Minister’s response as to how we can give our creative community greater clarity, greater comfort and greater support—and, through such labelling and statutory amendment, give far greater legislative cover not just to musicians but to all of our creatives, right across our society and our economy.
Amendments 99 to 101 look at potentially developing new metrology standards for AI data centres and search. Again, they cover these recurrent themes of consumer knowledge, consumer understanding and clarity around what is involved in AI-created products and products with AI in them. It is unlikely that many people who conduct an AI search or query, particularly on the new generative AI models, know the impact of every search in terms of its power usage, its water usage and its compute usage. Similarly, how many of us consider the water usage and compute power of what might seem like a more heritage search—that is, how much is involved in each and every one of those searches? Does the Minister agree that it would be helpful for the Government to undertake a programme of consultation to see whether new metrology standards could be developed? This would be helpful for consumers, businesses and developers in delivering clarity around what is involved in these new product creations.
Baroness Brinton (LD)
I am very grateful for the explanation from the noble Lord, Lord Holmes, of his amendments on AI and digital products, which are particularly appropriate, given the comments from the noble Lord, Lord Lansley, on the first group when we were discussing sandboxes, because of his experience during the passage of the digital medicines Act three or four years ago. A number of noble Lords in this Grand Committee worked on that—I am looking at the noble Lord, Lord Hunt, in particular.
I raise this because one area that concerns me about new products, especially those using AI, is that we do not have the same mechanisms that we have, full of fault though they are, for being able to allow our personal information to be used and to give our consent. I have mentioned before the issue of my dentist. Before you go to see your dentist, you have to go online to fill in a consent form, and at some point mid last year I noticed that there was something about the IT suppliers and it said, “It is assumed you give your consent”—and 10 layers further down they had a completely different set of consents that breached UK GDPR law. Had I not been working on another Bill about digital consent, I would not have looked much further. I have to say that the moment my dental surgery was aware of this, that firm was not just told to change it but was sacked. My problem with AI is that none of that work is visible; it is completely invisible.
My question to the Minister is, in the discussion about sandboxes but also about products that will come under this Bill: will he ensure that our current GDPR laws—and indeed our copyright laws in relation to music—are complied with at all times, so that there would not be any freedom for somebody using AI to develop a product to breach those? I say that in light of the final remark the noble Lord, Lord Holmes, made about consultation. Two sets of Government Ministers have had a very bitter time about patient data and care.data—the noble Lord, Lord Hunt, is smiling at me—when the public were not fully informed about what was going on, and in both cases the proposals had to be abandoned.
Lord Foster of Bath (LD)
My Lords, the first amendment of the noble Lord, Lord Holmes, Amendment 14, seeks to ensure that the production reliance on software and artificial intelligence are included in the scope of the Bill. Clearly, all our remarks are somewhat irrelevant if the Minister gets up and says, “No, they are not”. However, on the assumption that the Minister is going to say, “Yes, they are”, I draw particular attention, if I may, in supporting all the noble Lord’s amendments, to Amendments 75 to 78, on the issue of labelling. This seems to me to be an opportunity for real joined-up government thinking.
The Minister will be well aware that the Communications and Digital Committee, on which I had the opportunity to serve at the time of this, produced a very detailed report on the development of LLMs, large language models, and AI. In so doing, we particularly raised concern about the way in which these large language models were being trained by scraping tons of data from a variety of sources, then creating products over which they were then able to get intellectual property coverage. In so doing, they had scraped a great deal of data.
Amendment 78 in the name of the noble Lord, Lord Holmes, in respect of the labelling and so on, requires the Secretary of State to lay
“regulations to ensure no product or content … uses an individual’s image, likeness or personality rights without that individual’s express consent”.
Had I been drafting the amendment, I would have gone much further, because it seems to me that a large amount of other data is scraped—for instance, novels written by authors without their permission. I could go on; it is well worth looking at the Select Committee report.
Does the Minister accept that this is a real opportunity to have joined-up thinking, when the Government finally decide what their position is in relation to the training of LLMs and people being required to get the permission of all data owners before they can bring their product to market? Does he agree that the labelling of such products, when developed, should include specific reference to them having gained the appropriate permission, paid the appropriate fee or got the appropriate licence to make use of the data that was made use of in the training of those AI products?
Baroness Freeman of Steventon (CB)
My Lords, I shall speak briefly to Amendment 75, which was very eloquently introduced by the noble Lord, Lord Holmes. My academic background is in the research of communication and how people make decisions based on information that they are given. That touches quite a lot on how people assess the reliability and trustworthiness of data.
Amendment 75, on the labelling of AI-based products, includes a proposal about communicating the data used in the training of the AI. I think it is really important that people who have products that provide information on which they might be making decisions, or the product might be acting, are able to know the reliability and trustworthiness of that information. The cues that people use for assessing that reliability are such things as the size of the dataset, how recently that data was gathered and the source of that data—because they want to know if that data, to use the example of the noble Lord, Lord Holmes, is on American cheeses, British cheeses or Italian cheeses, all of which might need a different temperature in your fridge. I urge the Minister to look at this, because the over-trust or the under-trust in the outputs of data make such a difference to how people respond to products. I think this is very important.
Lord Kirkhope of Harrogate (Con)
My Lords, as one of the unfortunate authors of the GDPR, I am very interested to hear the remarks that have been made about possible abuse of the use of data. First, I thank my noble friend Lord Holmes very much for his amendments because, obviously, without proper consideration of the effects in technology and the fast-moving developments of AI, no legislation, particularly the sort of legislation, will really pass muster, so I support his amendments very much.
However, as far as GDPR is concerned, we brought into all of that a term that many of our European Union friends were not going to include at the time: proportional. In relation to how we deal with alleged data abuse, whether or not it is simply a question of small areas of data that have been used for good purposes or otherwise, it is important that we remember at all times that the heavy hand must be looked at carefully and that proportionality must always be remembered as being relevant to the way in which we deal with the use of data.
Lord Sharpe of Epsom (Con)
My Lords, I thank my noble friend Lord Holmes for his superb introduction to this group. I also thank the noble Baroness, Lady Brinton, for confirming my suspicion of dentists.
I shall speak in general terms because I cannot improve on the eloquence with which my noble friend Lord Holmes put his arguments. To return to the point, these amendments illustrate the limitations of Clauses 1 and 2, I am afraid. These amendments have considerable merit on a stand-alone basis but, in aggregate, they—Amendments 75 to 78 in particular—would in effect seek to define artificial intelligence. This is obviously a fast-moving and rapidly evolving subject; frankly, it deserves a national, never mind parliamentary, debate, as my noble friend Lord Holmes eloquently argued. AI will clearly demand definition and regulation, as the noble Lord, Lord Foster, rightly pointed out. Philosophically, I am not even sure that it qualifies as a product in the traditional sense; frankly, what is in this Bill suggests that we do not really know.
I cannot help thinking that some of the arguments made by the noble Lord, Lord Leong, in our debate on the previous group reinforce this point to some extent. AI can be benign, obviously, but the same application might not be. So, how do we define risk in these terms, even if it regards only the temperature of cheese? I therefore question whether this Bill is the right vehicle for these amendments or whether AI deserves a stand-alone debate and argument. The fact that they are in scope again illustrates, as I said earlier, the inherent weaknesses of Clauses 1 and 2. They are too broad and lack definitions. Ideally, they should be removed; at the very least, they should be extensively rewritten and tightened. I hope that the Government will listen but, if they do not, I will certainly have conversations with my noble friend Lord Holmes about what we shall do next.
Lord Leong (Lab)
My Lords, I thank all noble Lords and noble Baronesses who have spoken. The use of software and AI in physical products covered by our product regulation regime is still in its early days. It is important to take the opportunity of this Bill to ensure that future regulation can keep pace with technological change.
The amendment tabled by the noble Lord, Lord Holmes, would require a review of all product regulations in terms of how AI may impact them and a specific labelling requirement for AI. The Bill gives powers to ensure that product regulation can be updated or new regulations can be passed to cover emerging risks. They include measures such as labelling and verification requirements. However, mandating specific measures in the Bill would limit our ability to determine the most effective ways to protect consumers. A more flexible approach will allow us to adapt as this technology evolves and to ensure that protections remain robust and relevant.
To be clear, this Bill does not seek to regulate digital products or artificial intelligence in and of themselves; it is focused on the regulation of physical products and future-proofs our ability to keep product and metrology regulation up to date with emerging technologies. The Government have a wider programme of work on the regulation of artificial intelligence, where, in most cases, the UK’s expert regulators are responsible for enforcing the rules on AI in their domains; we are working with regulators to ensure that they have the resources and expertise to do this effectively.
Additionally, as set out in the King’s Speech, the Government will bring forward separate legislation to ensure the safe development of AI models by introducing targeted requirements on companies developing the most powerful AI systems. We will undertake a full public consultation to hone these proposals before presenting them to Parliament in due course.
The noble Lord, Lord Holmes, raised the issues of data protection and intellectual property. As we know, UK GDPR and the Data Protection Act 2018 form the legal framework for protecting personal data in the UK; this already covers things such as personal data, photographs and voice recordings.
Lord Holmes of Richmond (Con)
My Lords, I thank everybody who took part in this debate and the Minister for his response. I am convinced that there will be a number of issues to discuss between Committee and Report—certainly to return to when we reach Report—but, for now, I beg leave to withdraw my amendment.
Baroness Brinton
“(c) EU REACH regulation restrictions that are applied to the manufacture, placing on the market, and use of certain chemicals to mitigate unacceptable risks to human health or the environment;”Member’s explanatory statement
The amendment ensures that EU REACH regulations covering certain chemicals are included in the Bill.
Baroness Brinton (LD)
My Lords, REACH regulations cover the safety of chemicals. We simply ask: how can the Bill regulate cosmetics without considering the safety of the chemicals used to manufacture them? I do not buy the idea that Defra is in charge of chemical regulations—in the same way that the DWP is in charge of the chemicals database, other than via its responsibilities in managing the Health and Safety Executive. I will come back to a regulation that the DWP presented to the Grand Committee last year. So, should the Bill ignore chemicals or not? We need an explicit reference in the Bill to cover it. We have talked a lot about AI but the use of chemicals is equally important, particularly in online marketplaces.
I am sure that the selection of EU REACH rather than British REACH will raise certain hackles. I would grab any REACH in a storm, but the EU one is a system that functions, unlike its British cousin, which has proved expensive to business and is failing to react to new challenges.
Over a year ago, I was substituting for my noble friend Lord Fox when the biocidal products regulations 2022 were being discussed in Grand Committee. I think that none of us, including the then Minister, if she were honest, knew very much of what we were talking about. However, it was the most illuminating regulation that I have ever taken part in. We discovered that this was, in essence, a time extension for the use of the EU chemicals database, because Whitehall had not understood that the day we left the EU, we would lose access to the chemicals database. As a result, the Health and Safety Executive had to take on a very large number of staff. Its chemicals sections had increased by 30% to try to rewrite the chemicals database while also consulting with users, whether they were manufacturers importing, exporting or creating in this country. We know that there are systems out there that work but because of our bizarre structures, we tend to have government departments that are not focused on chemicals.
The cosmetics industry imports many of its ingredients from the EU, and often in very small quantities. These would certainly be covered by EU REACH, because these sales represent such a tiny proportion of total production. If there were a substantive difference between EU REACH and British REACH, it is unlikely that the manufacturer would invest in accrediting its products in the UK, causing the UK cosmetic manufacturer either to stop making its product or to move manufacture to the EU—hence my noble friend Lord Fox’s proposal about REACH in this amendment.
Can the Minister confirm whether, under the terms of the Bill as it stands, if a product contains a chemical that was allowed by EU REACH but blocked by British REACH, and yet it conformed to QC standards, it would be legal in Britain? That is what this amendment seeks to clarify. Given the interconnected nature of the UK and EU chemicals industries, it offers a route for aligning the UK chemical regulation with that of the EU. But perhaps the Minister thinks that the current wording of Clause 1(1) means that it could be used to amend and update UK REACH to align with EU REACH. I beg to move.
Lord Browne of Ladyton (Lab)
My Lords, I will speak to both amendments in this group, and I thank the noble Baroness, Lady Brinton, for her introduction of them.
When examining the purport of these amendments and considering whether to include provisions that require us to adopt regulations that correspond with the EU’s REACH provisions, I suggest that the metric by which we should judge that is simple. Would doing so make the people of this country safer? Every other consideration should be secondary to that.
As I said both at Second Reading and in Committee last week—I apologise to those who have heard this before, but it is worth repeating—the past few years have seen a significant divergence between the UK’s approach to chemical regulation and that of the EU. The previous Government decided to leave REACH—the EU’s body responsible for the registration, evaluation, authorisation and restriction of chemicals and their regulations—and to set up a parallel organisation.
Since then, we have not adopted a single registered restriction on a harmful substance, compared with 10 new protections offered by EU regulation, including on harmful microplastics deliberately added to products. While REACH has regulated PFAS in the EU, not a single river or water body in England is in good chemical health. Since we left REACH, the EU has initiated 23 risk assessments related to harmful substances, while we have initiated three.
In considering why that is the case, I point to two contextual factors. This is not a function of the legislative constraints. The Government have the power under the EU withdrawal Act and Schedule 21 to the Environment Act to adopt new restrictions and controls where necessary. However, reviews undertaken by the NAO and the Public Accounts Committee in 2022 pointed to a lack of operational capacity and insufficient data as factors that have hampered the ability of the UK’s chemical regulator properly to do its job. For instance, brominated flame retardants were identified as a risk to health and globally significant exposure rates were identified in this country. Indeed, they were identified as a regulatory priority over two years ago and a review was promised. So far, no review has been published and it is difficult to discern how this apparent priority has been acted upon, if at all.
However, while the EU has added eight flame-retardant chemicals to its list of substances of very high concern, no substances in this category have been added to the parallel UK list. The EU restrictions road map has proposed a ban on brominated flame retardants while no equivalent step has been proposed, let alone planned. This is not because we have data which diverges from that upon which the EU has based its conclusions but because we are working more slowly. I vividly remember the promises of greater regulatory agility and speed which would inevitably result once we were free of the sclerotic influence of the EU. This example is but one of many—including lead in PVC, polycyclic aromatic hydrocarbons in synthetic football pitches and formaldehyde in wood furniture—which suggest that far from being more agile and responsive, our current system of chemical regulation is slower, less efficient and consequently less safe than its predecessor.
In April this year, Hazards magazine published a parallel analysis of the 25 new standards that have been introduced across the EU since our departure in 2020 and the UK’s response. Of the 25 standards, 12 were identical. There were 10 in which the UK’s standard was weaker, sometimes significantly. Only in one case has the UK adopted more protective measures than the European standard. Again, this is suggestive of regulatory incapacity as much as a deliberate exercise of our power independently to regulate.
Fiscal stringency creates significant challenges in remedying this situation, but both these amendments obviate the need for the otherwise necessary significant increase in investment in our chemical regulator. Ensuring that our domestic regulations correspond with those of REACH not only offers greater safety but removes a barrier to trade and promises to ease the burden on our chemical regulator which, as I said earlier, the NAO and Public Accounts Committee suggested has compromised its ability to work with appropriate speed.
At Second Reading, my noble friend the Minister said, in response to a question from the noble Baroness, Lady Brinton, that the Government are currently considering the best approach to chemical regulation in the UK separately to this Bill. In deciding our approach to these amendments, it would be extremely useful if my noble friend who is responding to this debate could at least give us an idea of the direction of travel on this. The noble Lord, Lord Fox, made the point also at Second Reading that the absence of such a Bill from the King’s Speech makes it unlikely that we will see it in this Session. That being so, what plans do the Government have, in the absence of adopting the amendments that are the subject of this discussion, to exercise the powers in Clause 2(7) to ensure that we catch up and keep pace with the EU chemical regulation?
Baroness Lawlor (Con)
My Lords, I will make a very brief intervention because I want to repeat my illustration from the first group about the REACH regulations. I have concerns about including this amendment to Clause 1 at line 13 of page 2 of the Bill as I do not agree that the EU REACH regulations are necessarily better equipped to target sectors and individual products than UK regulations. I will not go through the reasons I gave earlier. The noble Baroness, Lady Brinton, whose introduction I learned a great deal from and am very grateful for, mentioned cosmetics. In my earlier intervention I pointed to the use of olive oil and lemon in some soaps and said that UK REACH regulations recognise that these products can be eaten safely and, indeed, have been used for a long time. Requiring, as EU REACH does, that they go through stringent chemical REACH processes and labelling is a bit over the top and would put expense on our producers. I urge us to think of the wider implications of unsensitive or disproportion regulation where we can.
Lord Sharpe of Epsom (Con)
My Lords, I thank noble Lords who have spoken in this debate. I will speak to Amendment 16 in the name of the noble Lord, Lord Fox, which was introduced by the noble Baroness, Lady Brinton.
Regarding the EU’s REACH scheme, I shall refer to a specific example which relates to my time at the Home Office in the previous Government. It relates to cosmetics, as outlined by the noble Baroness, Lady Brinton, and my noble friend Lady Lawlor. In 2019, the Home Office aligned UK policy with two decisions by the European Chemicals Agency board of appeal which related to the testing on animals for the registration of cosmetics-only substances—specifically homosalate and 2-ethylhexyl salicylate. The marketing of cosmetics tested on animals is banned in the EU under cosmetics products regulation, but the ECHA—the European Chemicals Agency—confirmed that under REACH substances used solely in cosmetics may sometimes be tested on animals, as a last resort, to prove their safety for workers or the environment.
An NGO called Cruelty Free International, quite rightly, in my view, took the Government to court arguing that the UK’s alignment in effect led to the weakening of the long-standing—I think it was a 25-year—ban on animal testing of cosmetics and cosmetic ingredients. The UK court found in the Government’s favour but as the then Minister for Animals in Science, which somewhat surprisingly sits with the Home Office, the Home Secretary and I were firmly of the opinion that this was unjustified, so as of May 2023 we decided that no new licences should be issued to carry out this function. A small number of licences had been issued between 2019 and 2022.
The noble Baroness, Lady Brinton, and the noble Lord, Lord Browne, made persuasive arguments about why it might be in this country’s interest to align with the EU but, equally, it might not be, and this is a very nuanced subject. Failings of the domestic chemicals regulator—real or imagined—are an entirely separate subject. Alignment with, or invention of, our own rules that suit our national and public interest most definitely is in our interest. When I say public interest, in this case 76% of the public are against animal testing according to the RSPCA. So can I ask the Minister to guarantee that this ban on new licences in these cases will be maintained? I am disappointed that the noble Lord, Lord Fox, is not here because I was going to ask him if, in the spirit of nominative determinism, he would withdraw his Amendment 16. However, I say to the noble Baroness, Lady Brinton, that it certainly raised hackles, not necessarily human ones.
On the subject of dynamic alignment, I have two questions for the Minister about an apparent contradiction in our debates last Wednesday. I pored over Hansard, and I found that he said:
“If the UK makes a sovereign decision to mirror EU provisions, the Bill provides the mechanism and flexibility, on a case-by-case basis, to do so. This would avoid primary legislation each time technical changes are needed and would increase the certainty that businesses are crying out for”.—[Official Report, 20/11/24; col. GC 74.]
However, he went on to say:
“The powers in the Bill do not allow regulations to make automatic or ambulatory references to changing EU law. I reassure noble Lords that the Government will return to Parliament to make any changes to references to EU law within our regulations”.—[Official Report, 20/11/24; cols. GC 74-5.]
On careful reading, these statements seem a bit contradictory. So, although I am totally willing to be persuaded otherwise, perhaps the Minister could write to explain to the Committee exactly what is proposed and what was meant. If I am being particularly thick, I would be very happy for him to explain why.
The Minister of State, Department for Energy Security and Net Zero (Lord Hunt of Kings Heath) (Lab)
My Lords, I thank noble Lords who have spoken, particularly the noble Baroness, Lady Brinton, who spoke to the amendment in the name of the noble Lord, Lord Fox.
From listening to the debate, I suggest that the defects identified are not so much in this Bill or other legislative provisions that we have in place but more, as my noble friend suggested, in the energy with which the previous Government used the provisions at hand., I shall first explain why this is covered in existing legislation, and then I will come on to the energy, if you like, with which this Government will approach these important matters. I shall also set out the distinction between the regulation of chemical substances under REACH and other regulations, and the regulation of consumer products that contain chemicals.
The UK has a comprehensive regulatory framework for the use of chemicals. The REACH—registration, evaluation, authorisation and restriction of chemicals—regulation controls the manufacture, import, supply and safe use of chemical substances. The CLP—classification, labelling and packaging—regulation requires companies to classify, label and package their hazardous chemicals before placing them on the market. The REACH model operates in both the UK and the EU, but the systems have been independent since UK REACH entered into force on 31 December 2020, after we left the EU, and the EU REACH regulation was brought into UK law. So the regulation of chemicals must be managed separately under UK REACH and EU REACH.
REACH ensures a high level of protection for human health and the environment from risks imposed by chemicals. This includes minimising harm to workers who may handle chemicals during manufacturing processes, as well as minimising health impacts on our population and environmental damage from chemical substances. Chemical safety is governed by several interacting regimes. For example, certain products regulated by sector-specific regulations, such as cosmetics or toys, may contain chemicals that are also regulated by REACH and CLP. One of the aims when applying these regimes is to avoid putting in place overlapping or conflicting duties, which is the issue that we would have with the amendment in the name of the noble Baroness, Lady Brinton. That amendment risks having overlapping or conflicting duties.
I know that the noble Baroness mentioned Defra, but the Secretary of State for Defra already has powers to amend UK REACH through the Environment Act 2021 and through REACH itself, which sets out a bespoke regime for imposing restrictions and other regulatory controls on chemical substances. The primary statutory purpose of UK REACH is to ensure a high level of protection for human health and the environment from substances that contain chemicals. In some cases, animal studies may be necessary to understand these human health or environmental hazards but, of course, I very much take on board the noble Lord’s point about animal testing, and I know of no plans to change the rules laid down by previous Ministers on that.
The Bill, as we know, relates to consumer products, and the definition of “product” stated in the Bill means that many of the substances regulated under REACH, and the ways they are used, are out of scope of the powers, regardless of these amendments. It should also be noted that the provision in Clause 1(2) is limited to the mitigation of the environmental impact of products. This limitation is reinforced in Amendment 51. As I have already commented, changes to REACH may be prompted by human health and safety, rather than environmental, considerations. The UK REACH work programme, published annually, sets out the work that has been done under UK REACH.
The fact is that the amendment would not provide the Secretary of State with the powers sought by the noble Baroness. We think the powers within UK REACH enable human health and environmental concerns to be considered alongside each other, where necessary. Existing sector regulations, such as those for cosmetics and toys, already include powers for the Secretary of State to regulate the use of chemicals in specific products beyond the overarching restrictions that can be applied under UK REACH. These powers can be, and already have been, used to make provision by regulation in UK law that corresponds, or is similar to, provision in relevant EU law. Such changes to UK regulations have been informed by independent expert scientific advice provided to the Office for Product Safety and Standards by the scientific advisory group on chemical safety for non-food and non-medicinal consumer products.
We have used these powers to make regulatory changes based on advice from that advisory group, following the EU’s introduction of new or amended prohibitions on the chemicals used in cosmetics and toys. My understanding is that, in some circumstances, the Government implemented scientific advice that was different from advice received by the EU. I am sure that the previous Government would have said that this demonstrated regulatory sovereignty to choose what products can be placed on the GB market and also demonstrated our status as a global leader in product regulation, supporting businesses and protecting consumers.
Powers in the Bill, alongside existing sector regulations, will ensure that we are able to regulate the use of chemicals in consumer products, including cosmetics and toys, as well as other consumer products with similar chemical exposure risk, so we will be able to continue to protect consumers from product-related harm. The noble Baroness, Lady Brinton, asked whether chemicals blocked in Britain but permitted in the EU would be available for use in this country. If we decided to ban chemicals that the EU continued to permit, those chemicals would not be permitted to be used for the GB market, because we have sovereignty.
I will confirm the point made by the noble Lord, Lord Sharpe, on animal testing. The ban on using animals to test cosmetic products or ingredients has been in place, as he said, since 1998. We do not wish to revise the ban and do not wish to risk any unintended consequences that might result from bringing REACH within scope of the Bill.
On my noble friend Lord Browne’s point on the pace of reform, at the moment the Government are pursuing a programme of work on a wide range of hazardous substances to gather evidence of risk and exposure pathways. Publishing the work programme 2024-25 late in the financial year has not prevented the continuing development of ongoing streams. Obviously, the UK work programme 2024-25 was prepared under the previous Government. Once approved by Ministers, it will be published on the Health and Safety Executive’s website. But let me say that I understand the essential point that has been raised. My point is that there is nothing wrong with the legislative framework. The point of contention is the vigour with which any Government use their sovereign powers in the way that noble Lords want.
Lord Browne of Ladyton (Lab)
If I have understood my noble friend’s response to this debate, do the Government accept the NAO and Public Accounts Committee’s assessment that UK REACH lacked capacity to do its job? If so, has Defra allocated sufficient funding to bring it up at least to the productivity of EU REACH in the quantity of assessments, recommendations and decisions that it makes? The statistics show that it is not doing anything much in this space.
Lord Hunt of Kings Heath (Lab)
My Lords, the quick answer is that these matters are being considered by Ministers at the moment, but I will feed back to them what noble Lords have raised today.
Lord Hunt of Kings Heath (Lab)
I would be glad to give way to the noble Baroness, but as we will come back to her in any case—
Baroness Brinton (LD)
I have a question. I am very grateful for the Minister’s response, but he has not yet responded to my final question and, following his reply to the noble Lord, Lord Browne, I need to repeat it to check. I said that this was a probing amendment to clarify the interconnected nature of, and differences between, the UK and EU chemicals industries. Under its current wording, Clause 1(1) says:
“The Secretary of State may … make provision, in relation to”.
Could that be used to amend and update UK REACH to align with EU REACH? I ask this in light of the letter that the noble Lord, Lord Leong, wrote to colleagues on 17 October:
“Though the Bill is not intended to cover REACH specifically, chemicals have not been excluded from its scope … We are currently considering the best approach to chemicals regulation in the UK and will set out priorities”.
That is the fundamental bit of this amendment. We can debate EU REACH and UK REACH, but it is about the influence on this Bill.
Lord Hunt of Kings Heath (Lab)
My Lords, the quick response is that we do not envisage it being used in that way because we already have separate legislation to deal with that. I will follow up with a more detailed response, but I do not believe that the provisions would allow that to happen. However, I will double-check and clarify that.
On my noble friend’s point, I have listened to the debate and understand the concerns. I know that Ministers are considering this, and I will ensure that the strong points raised here are put to them as they consider how to take forward this work.
Baroness Brinton (LD)
I am grateful to all noble Lords who have spoken in the short debate on this group. I am particularly grateful to the noble Lord, Lord Browne, for covering the 10 restrictions adopted in the EU but not in the UK, since it left the EU. I was debating whether to raise them or not; I am glad that I left them to him. He pointed out the cost-benefits of using REACH. Manufacturers have made it very clear that they want things as simple as possible and, usually, would prefer one form of REACH—the one to which they are likely to export or from which they will have products coming in. I recognise that other Members of the Committee will disagree with that. I am grateful for the comments of the noble Baroness, Lady Lawlor; lemon and lavender sound like a lovely, simple way of looking at it, but cosmetics are much more complicated. We need to be very careful about that. I look forward to hearing from the Minister but, in the meantime, I beg leave to withdraw the amendment.
Lord Lucas
Member’s explanatory statement
This amendment will enable discussion of what information might usefully be marked on the product, such that the liability for regulations and charges can be clearly established.
Lord Lucas (Con)
My Lords, I rise to move Amendment 20 and speak to the others in this group. Each of these amendments has a role, I hope, in improving or at least elucidating the provisions of the Bill, but they are also put together from the point of view of “Let’s collect the tax”.
This Government have not been shy of hurting people in pursuit of a few hundred million pounds in tax per year. They have threatened the basis of family farms, chucked children out of school in the middle of their exam years and frozen old age pensioners. Why, then, are they leaving a billion pounds a year lying on the floor, uncollected, from scamming Chinese and other—Asian, by and large—traders? It is quite extraordinary. It not only fails to collect the tax but damages the British businesses that would be doing the business if we were not giving a 20% price advantage to the likes of Shein and Temu. Now we see that Amazon has to follow them down this track because it has been so damaged by Shein and Temu that it has to go into the same business. This is economically illiterate and ridiculous.
I am very grateful to the noble Lord, Lord Leong, for arranging a meeting to discuss this. He very kindly invited a Treasury official along. I have had a reply now from the Treasury saying basically, “Don’t ring us, we’ll ring you”. I find this extraordinary, but I do not particularly blame this Government. The last Government was just as bad on it. However, it is extraordinary not to collect tax when the Government are going to such lengths to collect additional tax now.
I will add one more thing: for goodness’ sake, make the marketplaces liable for VAT. Stop trying to make the individual traders liable for VAT. They are here today, gone tomorrow, registering 500 new companies with Companies House, with lots of new VAT numbers. As soon as you put your finger on them, they are gone. Make the marketplaces collect VAT. It would be simpler and easier for them and for us, and much more effective.
Amendment 20 asks that we get a sensible amount of information on the origin, the identity of the local representative, the value and the beneficial ownership of the goods, so that everybody involved can see where the liability for product regulation sits, where the liability for any charges can sit and how things can be enforced. The more difficult you make it to track down who should be collared, the less it will happen. In these regulations, we must make it easier to chase people.
Amendment 24 basically says, “Make sure the representative who is appointed has the financial strength to stand behind what’s going on”. If the Minister cares to browse Amazon when he has the time and looks for, say, a three-terabyte drive—the sort of thing I shall need to pack up my 30 years in this place and carry it away with me—he will find that there are some very reputable products on the market for around a hundred quid. That is astonishing. I remember buying my first serious computer, which had 20 megabytes of hard drive, and thinking that was extraordinary. So—three terabytes for a hundred quid from a good manufacturer.
However, there are also products on the market for fifty quid from weirdly named companies. The game being played there is that the products do not contain three terabytes. They probably contain only 256 megabytes. But it does not show on the outside and by the time that anyone gets around to complaining and putting bad reviews in place, the company has changed; it has gone; it is someone else and there is no one to pursue. With a product such as a hard drive, it takes a while for someone to realise that it has been mis-sold. If you are going to pursue these people properly, you need to know that you can go after them for several months of turnover and succeed, which means that the representatives in the UK have got to be good for the money. Otherwise, you just do not have effective product regulation.
Amendment 25 also relates to “Let’s collect the tax”, since we are creating these structures to look after product quality, which could quite easily be used to help collect tax. Amendment 26 says, “Look, we’ve got a trading standards system that is really short of money, so let’s make it easier for us to extract money from the process we are creating in the Bill and feed it through to trading standards so that we get an effective and efficient system of enforcement”. I beg to move.
Lord Sharpe of Epsom (Con)
My Lords, I thank the noble Lord, Lord Lucas, for his proposed amendments to Clause 2, which, as highlighted by the Delegated Powers and Regulatory Reform Committee, has been recommended for removal due to the broad and vague nature of the powers it grants. The liability for regulations and charges related to products is a matter of extreme importance. Without clear guidelines and transparent information, businesses could face significant uncertainty, which in turn undermines their ability to comply effectively.
The Government’s focus on clarity in other areas will ring hollow if they fail to address the critical need for clarity in liabilities—an issue that the amendments in the name of the noble Lord, Lord Lucas, seek to address directly. Regarding Amendment 20, by ensuring that products are marked with clear and comprehensive information, such as origin, local representation and ownership, we can establish clear responsibility for product compliance. This would not only improve regulatory transparency but foster trust with consumers and businesses alike.
I urge the Government to take this opportunity to acknowledge the importance of clear liability and responsibility frameworks. Although these amendments are to Clause 2, and we continue to discuss its broader issues, nevertheless the noble Lord’s proposed changes are a necessary step towards ensuring both accountability and transparency in product regulations.
Lord Hunt of Kings Heath (Lab)
My Lords, I am grateful to the noble Lords, Lord Lucas and Lord Sharpe, for their comments in this interesting debate. I am glad that the noble Lord, Lord Lucas, was able to meet my noble friend and officials. I am sure they have taken note of his concerns, although he obviously has some reservations about that. I have also noted the comments of the noble Lord, Lord Sharpe, about the shape of the Bill, which we have already well debated and no doubt will continue to do so.
Despite the noble Lords’ concerns about the Bill, the fact is that we are trying to produce a workable yet robust framework for regulating product safety in what I think we all acknowledge is a rapidly changing and evolving marketplace. We want to ensure that businesses, whether operating through traditional channels or online marketplaces, are held accountable for the safety of the products they distribute. The Bill’s approach is targeted, addressing the need for traceability and enforcement while avoiding excessive regulatory burdens that could stifle innovation and growth. I believe most noble Lords think that is the right balance, although some are somewhat critical of the way in which we have sought to do it in the Bill.
Amendments 20 and 24 in the name of the noble Lord, Lord Lucas, propose to allow regulations to make requirements in relation to the marking of products, including their origin, the identity of the local representative, their value and their beneficial ownership, while also allowing regulations to require authorised representatives to accept liability and demonstrate financial strength. The amendments reflect important concerns, particularly around traceability and accountability, especially in the context of online marketplaces: for example, where a product creates a consumer safety concern, or the circumstances which the noble Lord mentioned in his introductory speech. Our view is that Clause 2(2)(e)(ii) and Clause 2(3) already provide the necessary mechanisms to ensure that authorised representatives and other relevant parties carrying out activities in relation to a product can clearly be identified for product safety purposes.
While I can see where the noble Lord is coming from with the proposed additional requirements, such as marking the product’s value or beneficial ownership, they would create an additional administrative burden for businesses without providing significant additional benefits for consumers or enforcement. The Bill as drafted aims to ensure that sufficient information is available for product safety and enforcement and we are not convinced that the extra information would offer clear advantages in those areas.
Lord Lucas (Con)
My Lords, I am very grateful for the Minister’s comprehensive reply. On Amendment 24, I remain unclear whether the powers in the Bill allow for representatives to have to demonstrate deep pockets. I would be happy to be written to if the Minister cannot reply now. If he could point me in the direction of homework related to Amendment 25, such as the OBR analysis and so on, I would be most grateful.
Lord Lucas
Member’s explanatory statement
This amendment is to ensure that people are aware that they are often buying from China when buying on Amazon/eBay and the product hasn’t undergone any quality checks.
Lord Lucas (Con)
I will also speak to Amendment 22. Amendment 21 is fairly self-explanatory. It asks that people be made aware of where the goods they are buying come from and, therefore, what confidence they can place in their quality. Secondly, it explores whether we might place liability on marketplaces for the quality of the products they allow to be listed there, which is clearly not the case at the moment.
My view is that Amazon makes a great deal of money out of selling what are, essentially, counterfeit products. This is not a satisfactory state of affairs. Amazon is quite well enough off to do a bit of investigation, which does not take long with these products, to make sure that they are what they say they are. This would result in greater stability and higher quality of companies doing business through Amazon. I do not think it would lose Amazon any business, but I am prepared to be shocked to find that the Government disagree with me. For now, I beg to move.
Baroness Brinton (LD)
My Lords, Amendment 45 in this group is in my name. I also support my noble friend Lord Foster’s Amendments 117 and 122.
I come back to an issue debated at some length on the first day of Committee. I am particularly pleased to see the noble Lord, Lord Jackson of Peterborough, in his place because my amendment relates directly to his Amendment 33, which questions whether Clause 2(3)(h) should stand part of the Bill; my amendment also looks at paragraph (h). He spoke about it in the context of parliamentary scrutiny and consultation, but my focus is a different one: I am trying to look at how it will work in practice. During our debate last week, my noble friend Lord Fox said that
“the wording of Clause 2(3)(h) is ‘any other person carrying out activities’. All the other items refer to the activity of the sale and marketing of that product. This does not refer to it but any person carrying out activities unspecified”.—[Official Report, 20/11/24; col. GC 40.]
We are moving from products to people in this debate.
At Second Reading, I asked the Minister who is caught by this very wide, catch-all paragraph. In his letter of 17 October, in which he responded to issues that he did not have time to cover at Second Reading—I thank him for it—he said:
“These supply chain roles may be undertaken by individuals as well as by businesses. The Bill will enable the responsibilities of supply chain actors to be rationalised and modernised, including to reflect the development of new business models that were not anticipated by current legislation, such as online marketplaces”.
I read his reply carefully, but it did not answer my question. That is partly because “actors” could mean anybody; it does not necessarily mean somebody mentioned in one of the clause’s previous paragraphs. I remain concerned about that in the context of Clause 2(3), which identifies the
“persons on whom product regulations may impose product requirements”.
It appears that paragraph (h) can include absolutely anyone involved in selling a relevant product, without limitation. This matters because a private individual selling an item with a lithium-ion battery, for example, on eBay or Vinted may be an actor at the very end of a long supply chain, but that does not mean they are a professional in the business. The wording is important.
Where does the responsibility for satisfactory compliance lie? In our Second Reading debate, there was some discussion about online marketplace platforms having responsibility for ensuring compliance but, frankly, eBay and Vinted cannot check the detail of a regulated item—in the case I gave, a lithium-ion battery in a bicycle—or how it meets the regulations. Also, the individual at the end of the supply chain has no obvious way of finding out whether they are responsible for ensuring that the item they wish to sell meets the regulations. Of course, there is a future actor in all of this: the person who buys it.
Which?, in its very helpful briefing prior to Second Reading, pointed out that the Bill needs strengthening in a number of areas, including clearer definitions of key terms, so that existing and future online marketplaces cannot take advantage of gaps to avoid responsibility. Clause 2(3)(h) is one such area. Will the Minister help by making it clear who is covered? Can he also explain exactly how the online marketplaces can manage the extension of liabilities for defective products sold by individuals, which those online marketplaces have not seen themselves? Alternatively, if individuals selling items are covered by Clause 2(3)(h), how do those individuals become aware of their responsibilities under the Bill for ensuring that the goods they sell meet the requirements and are not defective? Frankly, eBay sending them an email saying, “You are entirely responsible” is not good enough for compliance. If this is not clarified, we have a gaping hole in the Bill.
Baroness Crawley (Lab)
My Lords, I will speak to Amendments 48, 71, 118, 119, 120, 121, 123 and 124 in this group, on the topic of online marketplaces, which are in my name and those of the noble Lord, Lord Foster of Bath, and the noble Earl, Lord Lindsay.
Turning first to Amendment 48, I recall that, in the King’s Speech, the Government made a commitment to ensure that the responsibilities of those involved in the supply of products, such as online marketplaces, are clear. That commitment is to be welcomed, but the clarity and detail will be in the secondary regulations after the Bill is passed and not in the Bill itself. As set out in the explanatory statement, the proposed new clause in the amendment
“provides a non-exclusive list of duties that must be imposed upon online marketplaces by regulations made by the Secretary of State … to be made to Parliament within 3 months of Royal Assent regarding the exercise of the duties conferred by this section”.
These duties include an explicit provision to place a duty on online marketplaces to take the necessary measures to ensure the safety of products offered on their platforms and a commitment to publish any draft secondary legislation on how this duty and related provisions will work in practice in good time before the measures are due to come into force. Finally, there is a duty to consult with key stakeholders on the design of these regulations.
I make it clear to my noble friend the Minister that the duties in this amendment are about the transparent process by which the Government will ensure a safer online marketplace, rather than a long list of possible actions taken to bring this about. The Office for Product Safety and Standards, in its 2021 research, found that 81% of the products it found online failed safety tests. I am sure that the figure would probably be far higher if they were tested today. Which? tells us that around 23.4 million consumers in the UK make monthly transactions on these marketplaces, yet they are unwittingly putting themselves at risk because, at present, they do not have the same protections as they have come to expect when buying from traditional high-street retailers. This evidence should encourage us to reform online marketplace regulations as urgently as possible.
Amendment 71 allows for regulations to provide liability of online marketplaces for defective and unsafe products and to ensure redress for those harmed by these unsafe and defective products, including civil litigation. It is important that the law on product liability can be updated to take account of the responsibilities of online marketplaces and others in the supply chain, and to provide effective redress for consumers who suffer harm from these dangerous products. We know that online marketplaces have become a mainstream method for people to shop, particularly when they are looking for value for money in these difficult economic times. This amendment seeks to ensure that there is redress for those online shoppers if they buy unsafe or faulty goods.
From the briefing sent to us by the London Fire Brigade we know that e-bikes and e-scooters are one of the capital’s fastest-growing fire risks. On average, there was a fire every two days in 2023. Sadly, deaths and injuries have resulted. Many of these fires are caused by incompatible chargers and faulty products that are purchased online. The London Fire Brigade believes, as many of us do, that product innovation has gone far ahead of proper safety standards and that there is inadequate regulation, especially for conversion kits, batteries and chargers. A strengthened version of the Bill would go a long way to answering these safety gaps online.
Lord Jackson of Peterborough (Con)
My Lords, I support the probing Amendment 45 from the noble Baroness, Lady Brinton, as she referenced my earlier Amendment 33. She expressed in a more erudite and articulate way what I should have said last week on Amendment 33. However, I think we have both alighted on the fundamental problem in that subsection, which is that despite its opacity and the fact that it is drawn very widely, it does not achieve what we all hope it will achieve—in other words, to point out the obligations on buyers and sellers. The noble Baroness quite rightly pointed out the lacuna inherent in that.
My very brief question to the Minister is whether it might be possible—this is not a criticism but merely an observation in respect of the drafting—for this subsection to be redrafted before Report so that that confusion that we see now, which could potentially give rise to substantial amounts of litigation, is ameliorated and we could have tighter wording to address some of the issues that the noble Baroness and I have pointed out.
Lord Foster of Bath (LD)
My Lords, so many of our deliberations in our various sittings have been seeking to put some flesh on to the skeleton nature of the Bill before us; I have done that on a number of occasions, as have many other noble Lords. For instance, in our last-but-one grouping, I proposed that we seek to use the Bill to address concerns about data scraping for the development of new AI products. I gently point out to the Minister that he told me that this would be covered by the Data (Use and Access) Bill. I have double-checked Hansard and can tell him that at the end of the debate on that Bill, when this was raised with the noble Baroness, Lady Jones, the Minister responsible, she replied that this issue was not covered by that Bill and that DCMS and DSIT Ministers are jointly working and looking forward to bringing forward proposals in due course. She ended by saying:
“We will announce more details in due course”.—[Official Report, 19/11/24; col. 197.]
So it is not covered, and this is a good opportunity to do it.
As the noble Baroness, Lady Crawley, and other noble Lords who have spoken have pointed out, this is an area, in terms of online marketplaces, where there is an urgent need to put flesh on the bones and to have a clearer understanding of the definition of an online marketplace and of what regulations should apply to them. I have frequently raised in your Lordships’ House my concerns that consumers have far less protection from faulty products bought online than they have when they purchase them on the high street.
It simply cannot be right, as we have seen from all the evidence that we have all received from various organisations, such as the British Toy & Hobby Association, Which? and Electrical Safety First, as well as others, that so many unsafe products are available for sale online. In an earlier contribution, the noble Baroness referred to the fact that 86% of toys sold online do not comply with UK safety requirements. I have referred to the sad fact that many electrical appliances purchased online do not meet appropriate safety requirements and, sadly, have led to loss of life and damage of a great deal of property.
It certainly cannot be right that products that have been withdrawn by a manufacturer, often because of concerns about safety, can still be purchased online, and it certainly cannot be right that consumers have not only less protection but fewer opportunities for redress when purchasing products online compared to what they have when purchasing them on the high street. I support all the amendments addressing those concerns because collectively they would improve consumer protection by ensuring accountability by imposing a clear and enforceable duty on online marketplaces to ensure the safety of products sold on their platforms, especially those coming from third-party sellers overseas. Incidentally, I shall later propose an amendment that would strengthen the extraterritoriality covered by the Bill.
The amendments that we have before us further protect consumers by removing anonymity so that third-party sellers can no longer hide behind platforms to evade product safety regulations and by making it easier for them to seek any form of redress. It establishes direct liability on platforms for unsafe products sold throughout them, which leads to the opportunity for much greater fairness in terms of redress because, at the moment, consumers dealing with faulty high street products expect and receive a full refund or replacement, but when problems arise with online purchases, particularly from overseas sellers, consumers often seem to have no recourse. Amendments in this group deal with that issue. Finally, the amendments would clarify something that is lacking in the Bill at the moment: the issue of accountability. Who is actually accountable in the multinational marketplace structures that we have to deal with now?
Given that these platforms are evolving at an incredibly rapid rate, with people almost daily finding new ways to market their products, we need amendments that ensure that there is no room for manoeuvre to get around the regulations by online marketplaces now and, crucially, in future. We need a clearer definition of what we mean and what is covered by an online marketplace, and I welcome and support the amendments in the group that do just that.
I add one additional point. In Clause 10, the definition of an online marketplace includes,
“any other platform by means of which information is made available over the internet”.
Clause 10 does not define “the internet”, despite quite a point being made of doing so in other legislation. Indeed, other pieces of legislation prefer the phrase “internet service”, not just “internet”. To avoid further ambiguity, I have proposed in Amendments 117 and 122 that the Bill uses “internet service” instead of “internet” and that the definition of “internet service” is exactly as set out in the Online Safety Act 2023.
Given, for instance, that the Tobacco and Vapes Bill has this definition simply copied and pasted into it, I see no reason why this Bill could not do the same. Failing to do so would unhelpfully leave the definition to common law. We should be aiming to ensure that levels of protection and redress are as powerful online as they are on the high street. Amendments in this group will achieve this and will also ensure that we have a future-proofed definition of “online marketplace” and that clear duties and responsibility towards consumer protection are imposed on all relevant bodies. On these Benches, we certainly support them.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords for introducing their amendments in this group. I shall briefly speak in favour of Amendments 48 and 71. I thank the noble Baroness, Lady Crawley, for bringing attention to the critical issue that addresses the responsibilities of online marketplaces and also, if I may, pay tribute to her wider work in this area as well as that of my noble friend Lord Lindsay, who is not in this place but whose exemplary work as president of the Chartered Trading Standards Institute deserves a mention.
This sector has grown exponentially in recent years and plays a dominant role in modern commerce. This amendment, therefore, highlights essential duties for online marketplaces. For example, a 2023 TSB study found that Facebook Marketplace accounted for 73% of purchase fraud cases. If you think about fraud and its growth in terms of the British crime statistics, that is a significant percentage of British crime, not just online crime. Over one-third of adverts on Facebook Marketplace are scams, we are told, so this amendment would help to level the playing field by ensuring that online marketplaces meet the same safety standards as physical retailers. This would foster fair competition and ensure that businesses prioritising consumer safety are not undermined by unscrupulous practices.
It is vital that we ensure online marketplaces, which facilitate the sale of billions of products, do not become conduits for unsafe goods or fraudulent activity, as all noble Lords have rightly highlighted. Without robust regulations, consumer trust and market integrity are at significant risk. We ask noble Lords to take seriously this amendment to uphold consumer protection, market fairness and safety standards, and think that the Government ought to recognise the urgency of addressing these concerns and act decisively.
On Amendment 71, I support it as a necessary step to protect consumers in the rapidly growing online marketplace sector. The extension of liability to online marketplaces and others under Section 2(3) ensures that those who facilitate the sale of unsafe or defective products are held responsible. Such measures are crucial to maintaining consumer confidence, especially as online shopping becomes so dominant.
We think it is essential that the Government protect consumer rights in all the marketplaces, especially online. We urge the Government to listen to those two amendments in particular but, frankly, there is merit in all the amendments we are debating in this group, and I hope to hear some positive news from the Minister.
Lord Leong (Lab)
My Lords, before I respond to this group, I say to the noble Lord, Lord Sharpe, that I will write to him in respect of the points he has raised.
I thank all noble Lords for their contributions to this debate and for Amendments 21, 22, 32, 45, 48, 71 and 117 to 124. These amendments have raised important points on the scope and application of the Bill’s powers, and I hope to provide clarity and reassurance. Around one-third of UK retail sales are now conducted online, but our product safety legislation has not kept pace with changes in shopping habits, in particular the development of online marketplaces and other platforms.
Online platforms may sell goods themselves and/or provide a platform for third-party sellers—in the UK or aboard—including consumers, to sell goods. The most well-known online marketplaces in the UK are probably Amazon, eBay, ASOS and Etsy, and others are widely used. The online marketplace industry in the UK is booming. In 2023, the UK e-commence market was valued at close to £137 billion and is projected to grow to £152 billion this year. I thank the noble Lord, Lord Sharpe, for setting out the landscape of online fraud and scams on online marketplaces; we really need to take note of that.
Baroness Brinton (LD)
I thank the Minister very much for the detail he has gone into in his answer, but there are two types of regulation. The one he has described is the one that you would expect the Government, trading standards and other bodies to take. But, in litigation terms, if somebody bought an electric bike in good faith, who would they sue? Paragraph (h) does not make it clear. This is not purely about the parameters of the products and the Bill; it is about the consequences of having something that is very general. I think platforms will say, “It’s nothing to do with us”, and the individuals will say, “But I’m not part of the chain, as described”. I am genuinely struggling to understand and I wonder whether the Minister can help me.
Lord Leong (Lab)
I thank the noble Baroness for that; I will come to it. We are talking about product liability to some extent; I have a paragraph on it in my brief, if she will bear with me for a moment.
Amendments 32 and 45 highlight some of the different actors in online supply chains that may need to be captured appropriately in these new requirements. The Bill gives powers to introduce requirements on online marketplaces to improve the safety of products sold online. These requirements can be tailored and updated appropriately to reflect the wide range of online marketplace models, and other relevant supply chain actors and their activities, now and in the future. Clause 2(3) is therefore sufficiently broad to enable requirements to be introduced on any persons carrying out activities in relation to a product. This could include, where appropriate, private individuals selling products via online marketplaces, whether in return for payment or free of charge.
I will now focus on Amendments 117 to 124, which seek to broaden the definition of online marketplaces. The definition of online marketplaces in the Bill has been created in a way that is broad enough to capture the full range of online marketplace business models, including social media platforms such as TikTok Shop, which was mentioned earlier. I assure the Committee that all the changes proposed in the amendments are captured within the existing definition. For example—and of relevance to Amendment 123—the expansion of the term “marketing” within the definition of an online marketplace is not required due to the definition of “marketing” within the Bill, meaning the “making available” of products. This in turn is defined as goods
“supplied or advertised for distribution or use on the market, whether in return for payment or free of charge”.
Amendments 117 and 122 in the name of the noble Lord, Lord Foster, seek to change the definition of an online marketplace, replacing “internet” with “internet service”, as defined in the Online Safety Act 2023. The definition we have used in the Bill includes a service on any other platform by means of which information is made available over the internet. We are therefore confident that the issue the noble Lord raises in his amendments is covered by the Bill as drafted.
I also thank the noble Lord, Lord Foster, for his clarification about data and GDPR being captured by the Data (Use and Access) Bill. I shall read Hansard and confirm accordingly. I totally agree with him that all unsafe products should never be allowed to be offered for sale on any online marketplaces, whether original or second-hand. We have to address his point about accountability. Who is accountable to be held responsible for some of these unsafe products?
The Bill also includes a power in Clause 10(2) that allows for the definition to be amended later by regulations, if this were necessary to capture any future models not captured by the current definition. I will come back to the issue of product liability.
Amendment 71, tabled by my noble friend Lady Crawley and spoken to by the noble Baroness, Lady Brinton, would allow the Secretary of State to make provisions to ensure that online marketplaces can be held liable for products purchased via their platforms. The primary route to seek damages for harm caused by defective products is through the Consumer Protection Act 1987. Depending on the specific facts, an online marketplace may have responsibility under this legislation. The Government are currently reviewing this legislation and we will consider the UK’s product liability regime holistically, including the question of how it should apply to online marketplaces. This is not a change that we would seek to make without considering all the evidence, so we do not want to pre-empt this important work by adding to the scope of the Bill.
Product liability also covers products that extend beyond the scope of the Bill, including, for example, food and medical devices. A considered review of this area would be the most appropriate way to ensure that our product liability laws are up to date and fit for the future and to take account of the broad-ranging interests in this body of law. I will keep the Grand Committee updated on the Government’s progress with this review and plans for wider engagement.
I say to the noble Lord, Lord Jackson, and other noble Lords: we have listened to the debate and reflected on all the points made. We are aware of the Grand Committee’s strength of feeling on a number of points, including the scrutiny of secondary legislation. With that, I hope that I have been able to reassure noble Lords that these amendments are therefore not required to achieve their laudable aims. Consequently, I would ask for the amendments in this group not to be pressed.
Baroness Brinton (LD)
Clause 1(5) says that
“‘marketing’ means making available on the market”,
which is a much shorter definition than the one that the Minister just read out at the Dispatch Box. Is he telling me that I am not correct in saying that I market a product on eBay when I put it up on eBay?
Baroness Brinton (LD)
This is very important, because this is partly about liability and partly about the clarity in the Bill about who has responsibility. Whether it is a buyer or, as I think the Minister argued, an individual seller, someone has to tell them that they have to follow the regulations, and they need to know how to do that. When he read out the definition of marketing in his speech, he gave a whole sentence more than is included in the definition in the Bill, which very simply says,
“‘marketing’ means making available on the market”.
It goes on to discuss “related terms”, but they are not relevant to my problem. While he ponders between Committee and Report, can he look at that? More than one of us is likely to come back with amendments on Report on this issue.
Lord Leong (Lab)
I thank the noble Baroness. We are trying not to be too prescriptive because it is constantly changing. I am sorry about this, but the Bill defines “marketing” as
“making available on the market”.
Clause 10, line 8, states,
“a product or goods … supplied or advertised for distribution or use on the market”—
Baroness Brinton (LD)
That is exactly what happens with a private individual. They will advertise an item on eBay. The language the Minister is using is what I would describe as the old-style manufacturing and business model. It does not take into account all the comments that people have made about where online marketing is in the 21st century. Therein lies the problem, and I would be very grateful if the noble Lord would look at that.
Lord Leong (Lab)
I thank the noble Baroness for that as well. Online marketplaces are changing overnight. I have just learned over the weekend of dropshipping. Dropshipping means that if someone orders a product on eBay, the person supplying it is not eBay or whoever claims to be on eBay. It is dropshipped by AliExpress straight to that buyer’s home. How are we going to control that? How are we going to capture that? That is why we cannot be too prescriptive. We need to have the flexibility to address ever-changing marketplaces. That is what this Bill is trying to do. If the noble Baroness is still unclear or unsure about this, perhaps we can have another follow-up meeting so we can discuss this in depth.
Baroness Brinton (LD)
I think a number of noble Lords who have participated in this debate might be interested in a meeting, if that is okay. I shall very briefly respond to the Minister to say that flexibility is fine, until the point at which there is nobody to hold accountable. That is the problem.
Lord Leong (Lab)
The Bill is drafted in this way to address who is going to be accountable. My invitation to all noble Lords to a meeting stands, and I welcome each and every one of them. I hope this amendment can be withdrawn.
Lord Lucas (Con)
My Lords, I am very grateful for the long and detailed reply given by the noble Lord, Lord Leong. I recommend a meeting with him to anybody. He is a most welcoming and courteous Minister, and you get good results out of a meeting with him. If, on rereading what he has said, I have any further questions, I shall attend the meeting. For now, I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath (Lab)
My Lords, this might be a convenient moment to adjourn the Committee.
House of Lords
Oaths and Affirmations
Domestic Solar Panels
(1 day, 3 hours ago)
Lords ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Earl Russell
To ask His Majesty’s Government how they plan to increase the number of homes fitted with solar panels.
The Minister of State, Department for Energy Security and Net Zero (Lord Hunt of Kings Heath) (Lab)
My Lords, rooftop solar on homes and buildings will play an important role in the drive for clean power. Details about how the Government will increase deployments of domestic solar panels will be set out in the forthcoming solar road map.
Earl Russell (LD)
My Lords, Labour promised a rooftop solar revolution, which I welcome, tripling solar power by 2030. It now appears that this commitment has not survived contact with the housebuilding industry. Are this Government still requiring that, as part of the future homes standards, all new homes will have to have solar panels installed, as promised? If not, why? Further, France is maintaining solar panel installations on all parking lots greater than 80 spaces, generating power for 8 million homes. What consideration has been given to doing the same here?
Lord Hunt of Kings Heath (Lab)
My Lords, we are not moving away at all from the idea of a solar revolution. The noble Earl will know that, in its scenarios for 2030, the National Energy System Operator—NESO—reckons that we will need 47 gigawatts by that time. We are committed to publishing a clean power action plan, which will embrace solar plans, very soon. The Solar Taskforce is there to provide clear advice and actions on how we will take that forward. What the noble Earl said about French car parks was interesting. There has been an easing up of development rights in this country in relation to that. On the 1.5 million homes that we pledged to build in the lifetime of this Parliament, we are in close discussion with our colleagues across government about mandation, and we very much take his point on that.
Lord Alton of Liverpool (CB)
My Lords, I was indebted to the Minister for his courteous reply to us at the end of the Second Reading debate a week ago. He will recall that I raised with him specifically the use of Uighur slave labour in the manufacture of solar panels in Xinjiang, and the use of 25,000 children in child labour in the DRC in lithium production, which is essential to our green technology. The Minister was unable to answer some of the questions I put to him during that debate. Will he undertake for his officials to write and give replies, so that we can consider them before Committee? Will he place a copy of the replies in the Library of your Lordships’ House?
Lord Hunt of Kings Heath (Lab)
I think the Lord will recollect that he asked me rather a lot of questions and, given that my winding-up speech was 20 minutes, with the best will in the world, I said that I would write to him. On the general principle, he knows that I have long shared his concern, particularly about Xinjiang province and the appalling use of the Uighurs. We understand those issues and are committed to tackling them. We have given guidance on the risk to business of trading in Xinjiang province, and we have pointed out the penalties for those who fail to report under the Modern Slavery Act. The noble Lord will find an invitation to meet in the next two days to discuss those issues.
Baroness Winterton of Doncaster (Lab)
My Lords, further to that point, does my noble friend the Minister agree that one of the keys to tackling this issue, especially in terms of exploitation in other countries, is to ensure that solar panels are built in this country and that our industrial strategy matches up with the energy strategy and Great British Energy to make that happen? Can he assure us that he is focused on that?
Lord Hunt of Kings Heath (Lab)
My Lords, that is a very interesting point put forward by my noble friend. One of the responsibilities of the Solar Taskforce is to look at the supply chain, and we will pick up the issue that she mentioned. It is also worth pointing out that if we look at where the content comes from in relation to placing solar panels on a roof, it is reckoned that 60% of the value of the work—including scaffolding and whatever else has to happen—is bought in this country.
Viscount Hailsham (Con)
My Lords, would it not be a great help if the owners of listed buildings could find it easier to obtain planning consent for solar panels? I also declare an interest in that members of my family have listed buildings.
Lord Hunt of Kings Heath (Lab)
One of the main benefits of solar is that, in general, planning consent is not required. However, in conservation areas, there are many more constraints. I cannot give the noble Viscount a commitment, but I will make sure that the relevant department is made aware of his views.
The Lord Speaker (Lord McFall of Alcluith)
I now call the noble Lord, Lord Campbell-Savours, to make a virtual contribution.
Lord Campbell-Savours (Lab) [V]
With the price of panels a key consideration in housing costs, and with 75% of the world’s production in China, why can the Government not sponsor a taskforce of engineers and chemists et al with the task of designing and establishing a polysilicon manufacturing plant facility for use in wider solar panel production? The site could be located under a regime of regional development with climate incentives. Polysilicon stands at the heart of competitive solar panel production internationally. That is why the Chinese lead, and why we should be investing now.
Lord Hunt of Kings Heath (Lab)
I am very grateful to my noble friend for that very helpful suggestion. I will make sure the taskforce gives it earnest consideration.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, as the Government’s Great British Energy Bill enters Committee in the coming weeks, can the Minister confirm whether this will include the deployment of solar panels as part of its strategy? Given that I have the Minister’s attention, and following on from the questions from the noble Baroness, Lady Winterton, and the noble Viscount, Lord Hailsham, I draw his attention to GB-Sol, a spin-out from Cardiff University, which manufactures Welsh slate-looking tiles, which are suitable for both listed and heritage buildings.
Lord Hunt of Kings Heath (Lab)
That is a very interesting point. It is worth making the point also that a number of British companies are assembling some of the solar panels imported from China. I agree that we need to look at all these areas.
In relation to the GB Energy Bill, the noble Baroness will know it is not our intent to place in the Bill the exact amount of energy generation we require from each source. That will be a matter for the GBE board in light of the Government’s overall priority-setting towards clean power and net zero.
Baroness Butler-Sloss (CB)
My Lords, I have had solar panels on my roof for many years. There is a local town in Devon near Exeter—Cranbrook—which is growing vastly and does not have a single solar panel on any of the buildings, and there are thousands of houses and other buildings. Can the Minister make sure that cannot happen again?
Lord Hunt of Kings Heath (Lab)
I am intrigued, my Lords, to learn as to why there should be a desert in a particular part of the noble and learned Baroness’s county. Certainly, if she would like to send me more details, I will have a look at it.
Lord Redesdale (LD)
My Lords, the Government have pushed for solar panels on roofs, but they have not got a strategy on batteries associated with those panels—it seems to be left up to the individuals. Can the Government say whether they are going to bring forward a storage strategy linked to solar panels?
Lord Hunt of Kings Heath (Lab)
My Lords, storage is of course important. If you apply to have a solar panel, you are usually asked whether you wish to opt for battery or not. This is part of the work that the Solar Taskforce will take forward.
Lord Dobbs (Con)
My Lords, the Government clearly believe it to be of great strategic national interest to get so many solar panels built in a very space of time. As for heat pumps, a tiny fraction of heat pumps were actually built in this country—that was the last Government’s obsession. This Government want to massively expand the use of solar panels. How is the Minister going to ensure that, between now and 2030, the majority of solar panels will be built in this country? How will he also ensure that they are not filled with Chinese chips?
Lord Hunt of Kings Heath (Lab)
My Lords, of course, I cannot guarantee that the majority of solar panels between now and 2030 are going to be built in this country. What I can assure noble Lords is that, as part of the work we are taking forward, we will look at the UK supply chain. However, the essential point here is that we must strive towards clean power. I do not discount the positive impact of heat pumps. The Government, in their warm homes plan, are as committed to heat pumps as they are to solar.
Lord Vaux of Harrowden (CB)
My Lords, one of the best ways of increasing solar panels on the roof is to incentivise people to put excess capacity over their own usage requirements. What assessment have the Government made of peer-to-peer trading arrangements, which would allow people to sell their excess to their neighbours at a price higher than the smart export guarantee but lower than the retail price? I hope the noble Lord will agree that would be a win-win situation.
Lord Hunt of Kings Heath (Lab)
The noble Lord has raised this with me, and I think mentioned it at Second Reading of the GBE Bill, so we are giving it consideration. Of course, one should say that in terms of the incentives for people to invest in solar panels, we already have the smart export guarantee, which is a payment for excess electricity generated. However, as part of the warm homes plan, we are looking at the role of incentives and the use of private finance to find a way to help people with the upfront cost, which—even though solar is cheaper than other renewable energies—is always one of the main problems in relation to people being able to invest in their own solar panels.
Cladding Remediation
(1 day, 3 hours ago)
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Lord Young of Cookham
To ask His Majesty’s Government what progress has been made on remediating flats with dangerous cladding.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government (Baroness Taylor of Stevenage) (Lab)
My Lords, I wish the noble Lord better—I know he is not feeling so great today. The pace of remediation has been far too slow, with only 50% of identified buildings beginning or completing works, and just 29% fully remediated. This has caused untold distress and expense for all those concerned. Further strong measures will be detailed in the forthcoming remediation acceleration plan. As set out by the Prime Minister, we are willing to legally require those responsible to assess their buildings and promptly enter remediation schemes. We will bring the full power of government to bear on this task.
Lord Young of Cookham (Con)
My Lords, I am grateful for that reply. In the debate on Grenfell on Friday, the Minister’s colleague, the noble Lord, Lord Khan, said:
“Yesterday the Ministry of Housing, Communities and Local Government published its monthly remediation statistics. They show that, of the 4,834 residential buildings 11 metres and over in height with unsafe cladding that the department is monitoring … 50% … have still not started remediation”.—[Official Report, 22/11/24; col. 431.]
That is 250,000 families living in buildings that are not safe, in flats which they cannot sell, and who are confronted with high insurance premiums and service charges; and some of them are also confronted with unlimited remediation costs.
None of these leaseholders are responsible in any way for the difficulties they find themselves in. The NAO has now said that it may take until 2037—20 years after the Grenfell fire—for all the dangerous cladding to be put right, and we still have not identified all the dangerous buildings. I appreciate that the Minister has come to this relatively recently, but does she accept that if we do not get a grip on it, it will be the next major national scandal?
Baroness Taylor of Stevenage (Lab)
My Lords, I am very glad to say that we now have a Government, and a Deputy Prime Minister who is responsible for this area, who take this incredibly seriously. We will soon be publishing a remediation acceleration plan, which outlines the specific measures we are going to take to increase the pace of remediation, to find all the at-risk buildings quicker and to ensure that the residents at the heart of this terrible issue are supported in the process. There is no longer any excuse for those responsible failing to fix dangerous cladding on their buildings. The message is clear: use the routes we have created to get buildings fixed, and get on with the job.
The Deputy Prime Minister recently held a national roundtable with mayors, regulators and national building safety bodies to press home the urgency of this work, and most developers have now signed up now to the plan that she set out. But please be assured that we will not hesitate to use enforcement measures, and we have provided local authorities with funding to undertake the enforcement necessary.
Baroness Warwick of Undercliffe (Lab)
My Lords, there are still limits to access to funding for social landlords, despite the welcome measures the Government have taken already on funding, meaning that those with the lowest incomes still have to pay for unsafe buildings to be fixed, when private developers profited from constructing them. Will my noble friend respond to End our Cladding Scandal’s call for housing associations to have the same access to the building safety fund and the cladding safety scheme as private building owners?
Baroness Taylor of Stevenage (Lab)
I thank my noble friend for the action she has taken already in this respect. The Government are committed to improving building safety, and to accelerating the remediation of unsafe social housing just as much as we are for those in private rented and private owned property. Investment in remediation will rise to record levels of over £1.5 billion across 2024-25 and 2025-26, and that includes new investment to speed up the remediation of social housing. The Government will set out further steps to accelerate remediation in the remediation acceleration plan. Social landlords have access to existing government grants, and the Government are committed to providing £400 million of grant funding to the social housing sector for the removal of unsafe cladding. With social housing, as with other types of housing, there is no excuse now for not getting on with this as quickly as possible.
Baroness Scott of Bybrook (Con)
My Lords, following on from the Question of my noble friend Lord Young of Cookham, this Labour Government have allocated only £1 billion of funding for the removal of the cladding, in contrast to the £5.1 billion allocated by the previous Government to fix the most dangerous cladding through the cladding safety scheme. Can the Minister explain how the Government came to the figure of £1 billion, and will she commit to comparable levels of support to those seen under the last Government?
Baroness Taylor of Stevenage (Lab)
My Lords, we have waited seven years for action to be taken on this. The remediation acceleration plan will set out the full details of how we intend to take this forward, and the funding that has been set aside. Of course, we would have wanted to put more into this, but with a £22 billion black hole, it has not been possible to do so.
Lord Carter of Haslemere (CB)
The National Audit Office recently published a report showing that of the £16.6 billion total remediation cost, £6.5 billion would be met by developers, private owners and social housing providers. But what about the manufacturers of the cladding, who the inquiry found had been systematically dishonest and deliberately misled through the test data, so as to mislead the market about the safety of the cladding in question? Are they going to foot any part of the total bill?
Baroness Taylor of Stevenage (Lab)
The noble Lord raises a very important question. The Prime Minister stated on the day the inquiry’s report was published that we
“will write to all companies found by the inquiry to have been part of these horrific failings, as the first step to stopping them being awarded Government contracts”.—[Official Report, Commons, 4/9/24; col. 312.]
Preliminary letters have been now written to all those organisations mentioned by name in the report, each of which bears a different level of responsibility for the failings that led to the Grenfell tragedy, including construction project manufacturers. We recognise the failings of the system for construction projects, and we announced our commitment to bring forward proposals for reform of the regulatory regime in a Written Ministerial Statement on 2 September.
Baroness Brinton (LD)
My Lords, the very serious fire in a high-rise block of flats in Dagenham in August has resulted in the residents losing their homes and not even being able to access their belongings. They are also in real financial hardship. They are really grateful for the support from their local council, Barking and Dagenham, which has stopped them having to pay any council tax and provides weekly support meetings. Last Thursday, the owner of the building announced that it was to be demolished, without any discussion at all with the leaseholders and residents. The council cannot force the owner to the table, so I was very pleased to hear the Minister talk about enforcing remediation and working with people. Is there anything she can do to help these residents get the owner in front of them, so they can find out what is actually happening?
Baroness Taylor of Stevenage (Lab)
I am grateful to the noble Baroness for raising that issue, and to Barking and Dagenham Council, which acted very quickly to support the residents. A great deal of action is being taken on building owners who are not progressing remediation works, getting them to do so as quickly as possible. The enforcement action is strengthened by funding for local authorities, as I said earlier.
We all know that one of the great failings in the Grenfell situation was the failure to take residents’ voices seriously enough. We are clear that all projects should comply with the guidance in the code, and we will take action where needed if there is a failure to comply with the resident voice. The code is not currently legally binding; however, it does include references to legislation and has been developed in accordance with guidance and requirements. We will keep the status of that code under review, but there is redress for residents should they need to seek it.
Baroness Wheatcroft (CB)
My Lords, guidance note 9980 is being used as an excuse by developers. It enables them to look at the safety of buildings with dangerous cladding on a holistic basis, so that they can claim that if the fire escapes are okay, they do not need to remediate. Can the Minister commit to having a look at that guidance note? I declare an interest as a part-owner of a building with cladding issues.
Baroness Taylor of Stevenage (Lab)
I am grateful to the noble Baroness for raising that point. I will have another look at it, but that guidance is very clear. They are industry-accepted standards, so they should be adhered to.
Lord Rooker (Lab)
Why do the Government not arrange for the blocks of flats that still have dangerous cladding to be fitted with equipment to prevent neutral current diversions causing a fire in the first place? The fear of fire has got to be a serious issue. Given that the most expensive three blocks of flats in London are fitted with such equipment, I do not see why it should not be fitted to all those flats where people are living in fear and still with dangerous cladding.
Baroness Taylor of Stevenage (Lab)
I thank my noble friend, who has raised this point in previous debates. I hope he received a written response, but I will endeavour to seek another response for him on the specific point he makes today.
Taipei Representative Office in the United Kingdom
(1 day, 3 hours ago)
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Baroness D'Souza
To ask His Majesty’s Government whether they plan to review the status of the Taipei Representative Office in the United Kingdom.
The Parliamentary Under-Secretary of State, Foreign, Commonwealth and Development Office (Baroness Chapman of Darlington) (Lab)
My Lords, the UK’s long-standing position on Taiwan has not changed. The UK does not have diplomatic relations with Taiwan but does have a strong unofficial relationship based on deep and growing ties in a range of areas, underpinned by shared democratic values. The Taipei Representative Office works in the UK in the absence of those diplomatic relations. The UK does not have plans to review the status of the TRO but continues to work constructively with it in pursuit of our shared interests and within the parameters of our long-standing position.
Baroness D'Souza (CB)
I thank the Minister for her Answer, and I acknowledge that this is a difficult area. However, the London Taipei office is not invited to or included in any diplomatic events; does not receive protection from the police protection unit; is not exempt from council tax or business rates; cannot open a bank account with any British bank; and cannot secure meetings with Ministers or FCDO officials beyond director level, among many other restrictions. I wonder whether the Minister will say whether she feels that this is adequate support for a thriving but threatened democracy.
Baroness Chapman of Darlington (Lab)
My Lords, whenever I am asked about my feelings on these issues, I know that it is probably wise to choose my words incredibly carefully. To reiterate: the Government do not have any plans to change the current long-standing position, but we have deep ties with Taiwan through various means, as do our Parliaments. Much as I hear and understand the noble Baroness’s concerns about the current situation, at present the Government do not plan to change it.
Lord Anderson of Swansea (Lab)
My Lords, are there any steps, short of full recognition, that would recognise that Taiwan/Taipei is a democracy with very warm relations with the United Kingdom?
Baroness Chapman of Darlington (Lab)
We do recognise that. I know that several noble Lords in this Chamber have undertaken many meetings with and visits to Taiwan. This Parliament and representatives of Taiwan enjoy that connection and relationship. Long may that continue.
Lord Purvis of Tweed (LD)
My Lords, unlike our trade with China, with which we have a trade deficit of £23.7 billion—which is a strategic vulnerability—the UK has a trade surplus of £1.1 billion with Taiwan. As discussed in our first Question today, it is a liberal democracy that respects modern slavery standards, labour law rules and intellectual property rights. Surely it is in our strategic interests to grow trade with Taiwan over trade with China. In the context of the previous visit to Europe by former President Tsai, can the Minister confirm that no FCDO official was in contact with the TRO to suggest that her visit be postponed?
Baroness Chapman of Darlington (Lab)
My Lords, the noble Lord is correct to point out our good trading relationship with Taiwan. We do not see this as an either/or. We have a good trading relationship with both China and Taiwan. I can only reiterate the answers given about the visit in the other place and in this Chamber. The characterisation that has been given to this visit is not one that the FCDO recognises.
The Earl of Courtown (Con)
My Lords, considering the UK’s commitment to supporting democracies around the world, as mentioned by the noble Lord, Lord Anderson, and the Minister, how are the Government leveraging their relationship with Taiwan to promote the shared values of freedom, democracy and the rule of law in the region?
Baroness Chapman of Darlington (Lab)
We are very keen to promote our values of democracy and the rule of law in the region and elsewhere in the world. I would not say that we are particularly leveraging our relationship with Taiwan. I think it is more important to us than that, and we will promote these values throughout the world whenever we have the opportunity to do so.
Lord Rogan (UUP)
My Lords, I declare my interests as set out in the register. In May this year, the then United Kingdom Government published on their official website a joint statement signed by several international partners, including the British Office Taipei, reaffirming the joint support for Taiwan’s meaningful participation in the work of the World Health Organization and as an observer at the World Health Assembly. Does the Minister support this statement on behalf of the present Government? If so, will she use her good offices as a Foreign Office Minister to back the increasing momentum towards the establishment of a fully fledged UK embassy in Taiwan?
Baroness Chapman of Darlington (Lab)
My Lords, we support Taiwan’s participation in multilateral bodies, particularly when statehood is not a prerequisite, such as at the World Health Assembly, and we have supported its participation as an observer in other ways, including at the WHO.
Lord Alton of Liverpool (CB)
My Lords, I welcome what the Minister has just said about the World Health Organization. Is it not particularly reprehensible that China, the place of origin of Covid-19, should have blocked Taiwan from becoming a member of the World Health Organization? Given that we can do more, at the Human Rights Council, in the General Assembly and elsewhere, to influence these events, should we not be pointing out to others that those who fund the WHO feel some anger, having provided money to that wonderful organisation, that a country of 23 million people is excluded from its membership?
Baroness Chapman of Darlington (Lab)
My Lords, we value the work of the WHO and the contribution that Taiwan has made through the World Health Assembly. We will continue to support its participation, because we believe that everyone who has something to contribute to this important organisation and its work should be supported in doing so.
Lord Howell of Guildford (Con)
My Lords, the Chinese say that, if necessary, they will surround and besiege the island of Taiwan in three hours. That is their estimate and they have positioned forces to do it. They will then be surrounding an island that produces about 39% of the world’s larger industrial chips and probably an even greater percentage of domestic microcircuits, which really create the modern world, so we would be in a very serious position. Can we work closely with the Taipei Representative Office here and all our Taiwanese friends to foresee and prepare for the problems with such a situation in various ways, including by developing our own microchip industries 10 times more vigorously?
Baroness Chapman of Darlington (Lab)
The noble Lord is right to remind us of the precariousness of a situation arising such as he describes. It would be very dire indeed for the world economy. It would take around 10% of the world’s GDP, and no country, including China, would be immune to that impact.
Lord Polak (Con)
My Lords, during the election campaign, the Labour Party talked about change. Does the Minister not think that change should take place in this area—in Taiwan and Somaliland? Somaliland had peaceful, democratic elections 10 days ago; is it not about time that the British Government, who owe these people something, supported their rights? Now is the time for that change.
Baroness Chapman of Darlington (Lab)
I hear the noble Lord. There are many countries in the world that I wish we could change for a statement or a shift in position. But we need to tread carefully and respectfully, and work alongside allies, putting all the interests of the United Kingdom front and centre. That is the way this Government will proceed.
NHS: Dentistry Provision
(1 day, 3 hours ago)
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Lord Fuller
To ask His Majesty’s Government how they intend to tackle the issue of ‘dental deserts’, areas with no NHS provision for dentistry; what plans they have to establish new dental schools to meet demand, and on the basis of what criteria decisions about new dental schools will be made.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, 28% of the population of England needs but cannot access NHS dentistry. We want to ensure that everyone who needs a dentist can get one, including by providing 700,000 more urgent dental appointments and recruiting dentists to areas that need them. Government approval is not required to establish new dental schools; we encourage prospective providers to approach the General Dental Council, and we will work with partners to assess the best distribution of training places.
Lord Fuller (Con)
My Lords, I live in Norfolk which, alongside its neighbouring counties, is the only part of our nation not to have a school of dentistry. Even the Secretary of State says that our county is the “Sahara of dental deserts”. It is important: poor oral health is the principal cause of admission to hospital for children of primary school age, and incidences of mouth cancer are being missed locally. The last Government announced plans to recruit 1,000 more dentists a year and to build completely new schools of dentistry in which to train them alongside hygienists. Will these plans be taken forward by the new Government? Does the Minister agree with me that, where entirely new schools of dentistry are to be established, it makes much more sense to put them where we do not have very many dentists, rather than to have even more schools where we do have them? I hope she will say that the Government look favourably upon the proposals from the University of East Anglia to establish a brand-new school of dentistry and oral hygiene in Norwich.
Baroness Merron (Lab)
I commend the noble Lord for raising his long experience of facing and dealing with these problems locally in Norfolk. I note the report in September that the Norfolk and Waveney area has the worst ratio of NHS dentists to patients in England, with 1,000-plus people having to attend Norfolk’s casualty department last year due to serious dental issues, so this is a serious point. We are aware of the University of East Anglia’s interest in this area, and my colleague Stephen Kinnock, the Minister responsible for this area, recently met with east of England MPs to discuss this matter. However, as I have said, it is not the Government who make these decisions, although we encourage those new dental schools to be in areas of particular need. I encourage the University of East Anglia to take its proposals to the General Dental Council.
Lord Scriven (LD)
My Lords, has any extra allocation been made in-year—this year—from the Budget’s NHS allocation for the extra appointments the Government wish to see in dentistry, or is this expected to be bought from existing ring-fenced dentistry budgets?
Baroness Merron (Lab)
My Lords, the Government are investing around £3 billion in dentistry each year. As the noble Lord will be aware, I cannot yet confirm 2025-26 dentistry budgets, but they will be confirmed in planning guidance published by NHS England in due course. I know that the noble Lord will be aware that, despite the tough fiscal circumstances the Government have inherited, the Budget set out a big increase in day-to-day spending for health and social care. Regarding the process, and our planning, it is entirely normal that we set out matters in planning guidance. We are, of course, keen to reform the dental contract with a shift to focusing on prevention and the retention of NHS dentists. That work is immediately under way.
Lord Fowler (CB)
My Lords, no one fought harder for the elimination of dental deserts than Lord Colwyn, who died recently and whom most of us in this House remember. Would not the best memorial to Lord Colwyn be to place a new priority on dental services particularly for children? As well as making that a priority, and to show that it is, should we not allocate it a budget?
Baroness Merron (Lab)
I would like to associate these Benches with the comments made by the noble Lord about the late Lord Colwyn, whose contribution was indeed considerable. I agree that that would be a very appropriate legacy to his memory. The fact is that we are in the position that the previous Government’s dentistry recovery plan did not go far enough and, as we all know, there are too many people struggling to find an NHS appointment. As part of our 10-year plan we are working to assess the need for more dental trainees in areas including the east of England, which the previous noble Lord referred to, because many people continue to struggle. This cannot go on, not least because prevention is absolutely crucial as we move towards making an NHS fit for the future.
Lord Harris of Haringey (Lab)
My Lords, I refer to my interests in the register as chair of the General Dental Council. I am grateful to my noble friend the Minister for twice referring to the General Dental Council, but she has, perhaps inadvertently, given the impression that all that is required for a new dental school is that somebody rocks up to the General Dental Council and says they would like to open one. What consideration has she given to where the resources will come from for the training of extra dentists through a new dental school? Can she say what is being done to look at the best use of the number of dental professionals that exist around the country in order to make the best use of the skills mix between dentists and dental care professionals?
Baroness Merron (Lab)
My noble friend makes, as ever, very important points, and I am grateful for the opportunity to clarify that it is not a matter of just rocking up to the General Dental Council. However, we may find—I am sure that we will—that, in order to deliver our workforce ambitions, we need to work with partners such as NHS England and the GDC to explore the creation of new dental schools in currently underserved areas of the country. We have already had one such example. Provided that a prospective dental school meets the requirements of the GDC and the Office for Students, it will be considered for future government-funded training places. I absolutely agree with my noble friend that there are a number of layers to this, and I also agree that we need to look at the whole dental team, including dentists. There are a number of people involved in care, and it is crucial that the workforce plan can deliver on that.
Lord Kamall (Con)
My Lords, the Minister said that it was not only about rocking up to the General Dental Council, as the noble Lord, Lord Harris, said, but about having conversations. Can the Minister confirm what specific conversations the Government have had with the NHS, with the General Dental Council and with other dental bodies to encourage the opening of schools of dentistry in so-called dental deserts, especially in areas such as Norfolk, which my noble friend Lord Fuller described as the Sahara of dental deserts?
Baroness Merron (Lab)
As the noble Lord will know, we are very keen to see that the areas that are most underserved—as I know from my own experience in Lincolnshire—are targeted. One of the reasons is the problem of recruiting and retaining dentists, as there is not a dental school to call upon. That point is well understood. We are keen to target the areas that need the most, as well as providing additional urgent dental appointments. Early conversations have also taken place with the Minister for Care, Stephen Kinnock, about reforming the dental contract, which is absolutely key, and that work will continue at pace.
The Lord Bishop of Newcastle
My Lords, the Child of the North report, published in September, on the crisis in oral health in children, reported that 20% of children in the north-east have tooth decay in their permanent teeth. What plans do the Government have to implement one of the report’s recommendations—namely, to have a national strategy for children’s oral health, of which the establishment of new dental schools could be a part?
Baroness Merron (Lab)
The right reverend Prelate makes a very good point. The fact is that the overall state of our children’s oral health is very poor, including in the north-east, as she rightly identifies. One of the shocking facts is the impact on children’s ability to sleep, eat, play, socialise and even learn. It is also shocking that tooth decay is still the most common reason for hospital admission in children aged five to nine years. We will indeed look at the report, but we do have a strategy, including the introduction of supervised toothbrushing for young children in disadvantaged areas.
Arrangement of Business
Lord Kennedy of Southwark (Lab Co-op)
My Lords, the next two items of business are questions on Urgent Questions asked in the other place. The clue is in the title: questions. We have 10 minutes for each, so please ask short, sharp, succinct questions and, equally, give short, sharp, succinct responses.
Police Reform
(1 day, 3 hours ago)
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Lord Davies of Gower (Con)
My Lords, having spent 32 years as a detective officer investigating crime in the police, I never thought I would ask this question, but does the Minister agree that it is important that police spend their time actually investigating crime, not policing thought? Will he agree to change the guidelines urgently on non-crime hate incidents?
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
Yes, the Government are reviewing the guidelines on non-crime hate incidents. We will work with the police college and the National Police Chiefs’ Council to review that. The police should concentrate on serious crime, street crime and neighbourhood policing accordingly.
Baroness Doocey (LD)
My Lords, additional investment in neighbourhood policing is of course most welcome, but it is also crucial that forces have adequate support staff, to free up front-line officers. The uplift programme’s ring-fenced funding model forced police officers into back-office roles, damaging efficiency and morale. Does the Minister agree that greater flexibility is needed to deliver neighbourhood policing—for example, allowing chief constables to decide the most operationally effective workforce mix of both officers and back-room staff, crucially without them then incurring financial penalties?
Lord Hanson of Flint (Lab)
The Government are committed, as part of our manifesto commitments, to encouraging and supplying resources to fund 13,000 neighbourhood police officers. How police and crime commissioners and chief constables determine the use of that resource is for them. We will have the overall policing Statement in December, but last week my right honourable friend the Home Secretary announced an extra £264 million for policing, a £0.5 billion fund to support wider policing, and additional measures on respect orders and anti-social behaviour. I hope the noble Baroness will await the Statement in December, but I hear what she says about the flexibility we require.
Viscount Hailsham (Con)
My Lords, does the Minister agree that there are significant savings to be made by a greater harmonisation in procurement policies among police forces? If he does, how does he intend to press that forward?
Lord Hanson of Flint (Lab)
I agree absolutely. One of the options that the Home Secretary announced last week was a police performance unit to look at more centralised procurement. There are savings to be made in the police budget by 43 forces working together in certain areas. That will be part of the establishment that will be taken forward by the police performance unit, and I hope that the noble Viscount will welcome it in due course.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, will my noble friend have a word with the National Crime Agency to see if it can speed up and report early on its inquiry into Michelle Mone—the noble Baroness, Lady Mone—and her husband and the allegations of criminality against them? Until the National Crime Agency reports, we are unable to get a report from our own commissioner, who has investigated whether or not she has broken our rules as well.
Lord Hanson of Flint (Lab)
My noble friend will know that the investigation by any police force, not least the National Crime Agency, is a matter for that police force, not Ministers. Additional resources will go into policing next year, so if that is a problem for the National Crime Agency it can call on those additional resources, but it is not for me to determine investigations.
Lord Paddick (Non-Afl)
My Lords, the Minister might find this question familiar: with police and crime commissioners deciding police priorities, police budgets and how those budgets are spent in consultation with their chief constable, and with chief constables having operational independence, how much influence can the Government realistically have over policing under current arrangements?
Lord Hanson of Flint (Lab)
The Government have quite a lot of influence over policing. As the noble Lord will know, we set the budget for policing and will do so in December. As he will also know, particularly after my contribution today, there is £264 million of additional funding going in, along with £0.5 billion going in overall. Police national insurance contributions will be covered by central government, and a new policing unit is being put in place. There is a push on violence against women and girls. New respect orders are going into place. There will be new powers to tackle off-road bikes. We are giving priorities to police on those issues. This is a partnership. Police and crime commissioners are there, as are chief constables. The Government set a framework and set decisions—for example, the changes in law that we will bring to this House on shoplifting and shop theft. There is a serious central role, but self-evidently there is a local decision-making process as well.
Baroness Fox of Buckley (Non-Afl)
My Lords, on White Ribbon Day, whose slogan is, “It starts with men”, will the Minister note the irony of the British Transport Police’s new policy allowing a male officer who identifies as a woman to conduct intimate searches of women? Will he add that to the police reform agenda and condemn, along with me, what some women’s rights campaigners are calling state-sanctioned sexual assault—that is, police violence against women and girls?
Lord Hanson of Flint (Lab)
Trans people have a right to exist and be employed in communities to work with communities, and I will defend that right for trans people to hold responsible positions in society. If the noble Baroness wants to write to me with a specific example, we will look at that but, as far as I am concerned, let us get round to the basics that trans people are people.
Lord Harris of Haringey (Lab)
My Lords, I refer to my policing interests in the register. Is it not the case that successive Governments have focused almost to the exclusion of all else on the question of police numbers? Does my noble friend agree that there is a case for allowing chief constables and police and crime commissioners much more flexibility about the way in which they use the total police workforce, perhaps not always using police officers but instead using PCSOs or police staff to carry out the functions that need to be carried out? It is not necessary to have a fully warranted, fully trained constable to carry out all the things that a police force needs to do.
Lord Hanson of Flint (Lab)
I am grateful to my noble friend for the experience he brings to the Question. It is certainly the Government’s wish to give flexibility to local police and crime commissioners and chief constables to determine their local priorities, but we still need to set central advice, guidance and funding. One of the key things that will come out of the December settlement will be a focus on neighbourhood policing. It was a manifesto commitment to invest in 13,000 neighbourhood police officers to ensure greater engagement at a local level on crime detection, support from the community and a wider neighbourhood policing role. Within that flexibility I am very happy for chief constables and police and crime commissioners to allow a range of roles to be undertaken to achieve the Government’s objective of reducing crime.
Lord Bach (Lab)
My Lords, as an ex-police and crime commissioner some years ago now, I agree with the Minister in his reply to the question from the noble Lord, Lord Paddick. I know from bitter experience that, because of government settlements, the number of police officers went down year by year and there was nothing that a police and crime commissioner let alone a chief constable could do about it. It may not be all important but it is pretty important, so are those years over now?
Lord Hanson of Flint (Lab)
We are trying to reset the relationship between central government and the 43 police forces. That resettlement includes a £0.5 billion boost to policing generally; a new standards authority; £264 million announced up front to help support police to deliver good services; a settlement in December which I am not at liberty yet to talk about, because it is right and proper that we announce that to both Houses in December; and a range of new powers on anti-social behaviour, shop theft and violence against women and girls to set the tone that we need to take action on serious organised crime, violence against women and basic neighbourhood policing issues such as shop theft. I hope that will reset that relationship and I will be held to account by this House and others in doing so.
Baroness Stowell of Beeston (Con)
I refer back to the question asked by the noble Baroness, Lady Fox of Buckley. Might the Minister wish to reconsider his reaction that a legitimate question about the sanction of the British Transport Police of transgender officers being able to conduct intimate searches of women was a suggestion that she was casting any kind of aspersion on trans people?
Lord Hanson of Flint (Lab)
I will reflect on what the noble Baroness has said, and on what the noble Baroness, Lady Fox of Buckley—in the county of Flintshire—said about that issue, and I will write to both of them. There might be a need for some guidance, but the key point I am making is that we have to recognise that trans people can fulfil roles in policing and should be encouraged and supported to do so.
Asylum Seekers: Hotel Accommodation
(1 day, 3 hours ago)
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Lord Murray of Blidworth (Con)
My Lords, there were 213 hotels in use by the Home Office at the time of the election; there are now 220. That is an increase of seven which have opened under this Government, notwithstanding the commitment in the Labour manifesto to “end hotel use”. When does the Minister envisage reducing the number of hotels again and when does he envisage ending the use of hotels, as his party promised?
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
The Government have closed 14 hotels since July; there have been additions, so there is a net increase of seven hotels. The key point that the Government are trying to undertake—I know that the noble Lord will know this—is to reset the agenda on this issue. That means putting money into a secure command at sea to ensure that we do not have those small boats coming in the first place; speeding up asylum claims; encouraging deportations of those who do not have a right to be here; and looking at the long-term issues of hotel accommodation.
In answer to the noble Lord’s question, it remains the Government’s ambition to exit hotels as soon as possible, because he left us with a bill of £8 million per day and with £700 million of expenditure on a Rwanda scheme that sent four people to Rwanda, all voluntarily. We inherited a scheme that would have cost billions of pounds and would not have deterred or stopped the use of hotels. We need to speed up asylum accommodation. We will do that and, at the appropriate time, exit hotels and save the taxpayer resource by doing so.
Lord German (LD)
My Lords, I draw attention to my interests in the register, as I am supported by RAMP. I appreciate the position that the Government find themselves in: a huge backlog of people to deal with, some of them here for a very long time indeed. Has the Minister considered that a way of releasing some accommodation would be to allow people who are here now and have been for more than six months to start to do some work, even on a temporary basis, and therefore fend for themselves? That would be just like the rules used in every country in the European Union.
Lord Hanson of Flint (Lab)
I appreciate the suggestion and will take it as a representation from the noble Lord as to government policy. We are concerned with trying to reduce the use of asylum as a whole, to stop people coming and to undertake deportations where they are appropriate. On the asylum figures, 10,000 claims every month are now being taken through the system. When the noble Lord, Lord Murray, was the Minister it was 1,000 a month, so it is a massive increase in relation to asylum support. We put additional officers in to do that. We have put an additional £75 million into the border security scheme, with a brand new border command, and stopped the wasteful Rwanda programme, which has cost us £700 million to date and would have cost us billions of pounds accordingly. I will take the representation but the Government’s focus is to speed up asylum claims, stop the boats in the first place, ensure that we repatriate that money and, in answer to the noble Lord’s question, exit hotels as quickly as possible to save the taxpayer resource.
Baroness Lister of Burtersett (Lab)
My Lords, I hope that my noble friend did not mean that he wanted to reduce asylum, because it is a legitimate—
Baroness Lister of Burtersett (Lab)
Good. I am glad and wanted to put that on the record. Last week, a round table of academics and stakeholders heard of children wrongly assessed as adults being put in hotels with adults, to the detriment of their mental health. Are the Government looking at this as an issue?
Lord Hanson of Flint (Lab)
I reassure my noble friend that the Government have a proud role in accepting people with legitimate asylum claims. The key question, which relates to the questions from both Opposition Front-Bench spokespeople, is about the speed and efficiency, and the prevention of illegal entry where there is no asylum claim. The Government will take that on board and I will certainly take away the point that my noble friend mentions. I will look at whether we have figures and facts on children being used and accommodated in that way. If she will let me, I will report back to her and place any letter in the Library of the House.
Baroness Butler-Sloss (CB)
My Lords, what are the Government doing about getting rid of those who should not be here?
Lord Hanson of Flint (Lab)
I can help the noble and learned Baroness on that point. Between 5 July and 28 October this year, which is the only time that I can account for as Minister, the Government have returned 9,400 people who have no right to be here. Of those 9,400 returned, 2,590 were enforced returns, which is a 19% increase on when the noble Lord, Lord Murray, held this post not 12 months ago.
Lord Purvis of Tweed (LD)
Uniquely in the OECD, the previous Government made the decision to overturn many years of UK practice to score as 100% official development assistance the first-year immigration costs, including hotel costs. This has meant that the ODA budget has been massively squeezed, to the extent that under the previous Government in their last full year, more ODA was spent in the UK on immigration costs than on bilateral programmes abroad, in direct contravention of the 2002 legislation. Many people thought the new Labour Government would reverse this calumny, but they have not—in fact, they are doubling down. Can the Minister tell me what the ODA costs are for the first year of immigration under this new Government and why they have taken the decision to penalise the most vulnerable and poorest around the world for the failures of the previous Government?
Lord Hanson of Flint (Lab)
With due respect to the noble Lord, I will look into his point, but we are four and a half months into this Government. The focus the Government have had so far—and I say this genuinely—has been the removals of people with no right to be here, putting extra resources into speeding up the asylum system, stopping this failed Rwanda scheme, and putting money into border security. These things take time. I will reflect on the points he has made, but it is not the long-term aim of the Government to spend the overseas aid budget on supporting issues to do with asylum in the United Kingdom. The aim of this Government is to speed up the asylum system, stop people fraudulently coming, and welcome people who, as my noble friend Lady Lister said, deserve and require asylum under our legal obligations. But we have to try to move this tanker in a very slow and difficult way. The tanker is slowly and surely being moved. I hope the noble Lord will recognise that.
Viscount Hailsham (Con)
Does the Minister acknowledge that the existence of the international convention does make it extraordinarily difficult to turn the tanker?
Lord Hanson of Flint (Lab)
No, we respect our international obligations—and we can take action. As I said a moment ago, the 9,400 total returns is a 19% increase over the past year; 2,590 were enforced returns. It is an important step by this Government to remove people who have no right of abode in this United Kingdom. But we will respect asylum claims that are legitimate. We will speed them up and, by doing so, we will ensure—to the point made by the noble Lord, Lord German—that people, having had that asylum approved, will be able to go out and contribute to society. It is a very difficult tanker to turn, as the noble Viscount will understand, but it is one that we are determined to turn.
Baroness Bennett of Manor Castle (GP)
My Lords, back in April a joint report from the APPG on Poverty and the APPG on Migration recommended that asylum seekers should be allowed to work after six months in the country. Given the enormous asylum backlog and the costs to which we are referring, surely the Government are considering allowing asylum seekers to work after six months, so that they can both support themselves and contribute their skills and energy to our economy, while we deal with this enormous continuing backlog.
Lord Hanson of Flint (Lab)
I refer the noble Baroness to the answer I gave earlier to the noble Lord, Lord German. Those are issues I will take as a representation, but the prime focus of the Government currently is to increase the use of asylum cases being approved and we have done that—up from 1,000 a month to 10,000 in the last month. That has been a big focus. I repeat myself, but it is important, the focus is on the issue of small boats, the Border Security Command and the issue of trying in the long term to reduce the number of hotels and to scrap the Rwanda scheme. Those are initial proposals the Government have brought forward. We will look at other options in due course.
Lord Brooke of Alverthorpe (Lab)
My Lords, are we not seen as a soft touch by those who want to get into this country and as having little control over the number of people coming in? According to reports, there may be close on a million people who are not registered as British citizens. Should we not be exploring again the use of a modern identity system? The abolition of the ID cards by the coalition Government was a serious error. Is it not the case that we will have to return to it, and the sooner we look at that, the better?
Lord Hanson of Flint (Lab)
I respect the question from my noble friend. I reassure him that this United Kingdom Labour Government are not a soft touch on migration to this country. We have invested in Border Force. We are investing in additional measures to prevent illegal entry and in a e-visa system which will allow people to come into this country through a controlled mechanism.
On the aspirations for an identity card, I was in the Home Office when we introduced the identity card. It went through the noble Baroness, Lady May, in her actions as Home Secretary. It is not likely to return soon.
The Deputy Speaker (Baroness Fookes) (Con)
My Lords, my apologies for inadvertently cutting off the Minister.
G20 and COP 29 Summits
(1 day, 3 hours ago)
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The Lord Privy Seal (Baroness Smith of Basildon) (Lab)
My Lords, I will repeat a Statement the Prime Minister made last Thursday:
“Thank you for your earlier words about John Prescott. We woke today to the deeply sad news that we have lost a true giant of the Labour movement and of this House; a man who fought for working-class ambition because he lived it. As one of the key architects of a Labour Government, John achieved that rare thing: he changed people’s lives and he set the path for us all to follow. I will always be grateful to him for that. He did it in his own way, with humour, pride, passion and total conviction. He truly was a one-off. There will be a moment for fuller tributes, but today I send my deepest condolences to John’s wife Pauline and his family, to the city of Hull, and to all those who knew and loved him. His legacy lives on in all of us.
I would like to update the House on my engagements at COP and the G20. We live in a dangerous and volatile world. We all wish that that were not the case, but it is, and it means that global problems are reaching into the lives of our constituents more and more. Climate change causes extreme weather, such as the terrible floods that we saw in September, and drives down economic growth; conflicts drive up the prices of fuel, food and energy and threaten our stability and security; and both are drivers of migration. To serve the British people we must tackle these problems head-on, because they do not stop at our borders—and that is the fundamental point. At every meeting I had at COP and the G20, and in every agreement I entered into, my focus was on tackling these problems to deliver growth and security for the British people.
At COP, I made the case that we must act on climate change and nature loss as some of the greatest long-term threats we face, and in doing so we must seize the opportunities of the low-carbon economy for investment, for UK businesses and for British workers. At COP, I was proud to announce the UK’s new nationally determined contribution, with a 2035 target to reduce all greenhouse gas emissions by at least 81% on 1990 levels. I called on other countries to match that ambition to limit global temperature rises to 1.5 degrees, and I made the investment case for the transformation that we are leading here in the UK.
By launching GB Energy, creating the National Wealth Fund to build new energy infrastructure and setting a path to clean power by 2030, we will not just boost our energy security and protect bill payers, but put Britain in pole position to claim the clean energy jobs of the future. That is why at COP, I was able to announce a £1 billion wind turbine investment that will support 1,300 local jobs around Hull—something of which John would have been proud—and produce enough clean energy to power 1 million homes. That is in addition to the recent investment in carbon capture in Teesside and Merseyside, which will create 4,000 jobs, and the investment announced by my right honourable friend the Chancellor for 11 new green hydrogen projects across Britain.
Tackling climate change is a global effort, of course, so at the G20, together with Brazil and 10 other countries, I launched our global clean power alliance to speed up the international rollout of clean power, accelerate investment, and cut emissions around the world.
We came together at the G20 to meet other challenges as well. I was pleased to join President Lula’s Global Alliance Against Hunger and Poverty to bring an end to the lost decade in that fight, because this is also an investment in stability and in tackling the factors that force people to leave their homes and make long journeys that too often end with criminal gangs exploiting them and putting their lives at risk in the English Channel. We will smash those gangs. I am sure the House will welcome last week’s news from the Netherlands, where the National Crime Agency, operating with European partners, arrested a man suspected of being a major supplier of small boats equipment. We will hit these organised criminals with the full force of the law, but we will also work with our partners to address the root causes of the problem.
The G20 represents 85% of global GDP, so we have a shared interest in driving up growth and investment. I held productive bilateral meetings with many G20 leaders to that end: Brazil, Japan, Italy, South Africa, the Republic of Korea and others. I also met Italy and Japan together to take forward the Global Combat Air Programme, which will build the next generation of fighter jets, create highly skilled jobs and strengthen our national security for the longer term.
I also had a good discussion with Prime Minister Modi about deepening our bilateral ties. We agreed to raise the ambition of our UK-India comprehensive strategic partnership, covering security, defence, technology, climate, health and education, building on the unique bonds and cultural ties between our two countries. Crucially, this work will start with trade and investment, and I am pleased to say that we agreed to launch FTA negotiations early in the new year.
I also held a bilateral meeting with President Xi. This was the first high-level leader meeting between the United Kingdom and China for six years. We had a frank, constructive and pragmatic discussion. As G20 economies and permanent members of the Security Council at a time of huge volatility, we both recognise the importance of engagement. I was clear that we will always act in our national interest, but we need to work together on challenges such as climate change and delivering growth. We agreed to a new dialogue on these issues, which my right honourable friend the Chancellor will take forward with the Vice-Premier in Beijing. Of course, there will continue to be areas where we do not agree, and we will address them clearly and frankly. They include a number of human rights issues, the sanctioning of Members of this House and, of course, Hong Kong, but here too we need to engage. The lesson of history is that we are better able to deal with problems, and the world is safer, when leaders talk, so we agreed to keep this channel of communication open.
Although it was not on the formal agenda of the G20, the spectre of conflict loomed large over the summit. Conflict is spreading misery, destruction and despair, and causing children to starve and families to flee their homes. I called again for the immediate and unconditional release of the hostages in Gaza, who are always uppermost in our minds. I also called for an immediate ceasefire in Gaza and a massive increase in the flow of aid to Gaza, which is desperately needed. Yesterday, we backed a UN Security Council resolution to that end. We must find ways to make this international pressure count, to end the suffering on all sides.
The G20 coincided with 1,000 days of conflict in Ukraine. For the third year running, Putin did not attend. Instead, on the eve of the summit, he launched Russia’s biggest attack for months, killing yet more innocent Ukrainians and hitting civilian energy infrastructure at the start of winter, and he indulged yet again in dangerous, irresponsible rhetoric. This is a member of the Security Council acting with contempt for the UN charter. Whereas Brazil made finding solutions to hunger and poverty the focus of its presidency, in recent weeks Russian missiles have continued to rain down on civilian ships carrying grain bound for Africa. It could not be more clear: this is a man who wants destruction, not peace.
After 1,000 days of war—1,000 days of Ukrainian bravery and sacrifice—I am clear that we must double down on our support. We will not be deterred or distracted by reckless threats. We have consistently said that we will do what it takes to support Ukraine and put it in the best possible position going into the winter. The UK’s support for Ukraine is always for self-defence. It is proportionate, co-ordinated and agile, in response to Russia’s own actions. It is in accordance with international law: under Article 51 of the UN charter, Ukraine has a clear right of self-defence against Russia’s illegal attacks. I say again that Russia could roll back its forces and end this war tomorrow. Until then, we will stand up for what we know is right, for Ukraine’s security and for our own security, and we will back Ukraine with what is needed for as long as it takes.
In challenging times, I take the view that British leadership matters more than ever. For the sake of our growth and security, we are making our presence felt, giving the British people a voice on the global stage once again and standing up for the national interest. I commend this Statement to the House”.
Lord True (Con)
My Lords, I repeat the genuine sadness that we on this side also felt in losing a great comrade in this place: the late Lord Prescott. He was a man of the deepest conviction and principle. He was a great party man but, at the same time, a true patriot.
I thank the Leader of the House for repeating the Statement, although I felt that a few of the Prime Minister’s words were somewhat self-congratulatory. Perhaps third-party congratulations for this Government are running a little short. The Statement pumps up unilateral announcements on energy policy that did not require the Prime Minister to go to Rio or Baku. Has the noble Baroness an update, asked for last week, on the costs of flying 470 UK delegates to Baku?
We will study carefully the conclusions of COP 29 on the important questions of climate change and nature loss, although I see with some regret that many developing countries have already criticised them. Can the noble Baroness confirm the new $300 billion annual climate finance target by 2035? Will she say what the contribution of the UK will be and whether the great polluter China will now contribute to this? How many countries have pledged to match the Prime Minister’s new long-term commitments?
The Statement claims that domestic energy initiatives will “protect bill payers”, yet Labour recently voted against enshrining in law a pre-election promise to bring down energy bills by £300, and it has accelerated policies to festoon our countryside with pylons and raise costs for consumers. The Government now admit that their energy policy will push 100,000 pensioners into poverty by 2027. How can the noble Baroness defend that?
The Statement referred to action against illegal migration, and we welcome that. I welcome the fact that the Prime Minister met with the Prime Minister of Italy—there is always good advice to be had from real Conservatives. But is he aware that Italy and the EU are both actively pursuing what President von der Leyen has called “return hubs”, while the Labour Government have abandoned that course and are reopening asylum hotels, as we have just heard. The Prime Minister boasts of an arrest in Holland in the Statement, but, under the last Government, 246 people smugglers were arrested in one year.
On defence, we welcome the recommitment to pursuing the Global Combat Air Programme with Japan and Italy, but we still await any credible route to the 2.5% target on defence in the face of Russia’s aggression, which the Statement rightly condemned. But it was disappointing, at the very least, not to see this aggression called out by name in the G20 communiqué. We welcome and we back the Government’s continuing support for Ukraine. Putin’s aggression must be and will be stopped, and the noble Baroness has our support.
However, it was disappointing to see in paragraph 8 of the G20 communiqué no meaningful recognition of the terrorist onslaught on Israel, against which it has every right to protect itself. Instead, the Prime Minister again called for an immediate ceasefire. There was no mention in the communiqué of UN Resolution 1701, so flagrantly breached by Hezbollah. Does the noble Baroness agree that that resolution is fundamental? When she replies, will she assure the House, and indeed Jewish people in this country, that there will be no question of the UK Government undertaking or permitting an ICC-inspired arrest of Prime Minister Netanyahu, should he come to these shores? There can be no ifs and buts on this question, as my noble friend Lord Wolfson of Tredegar has explained.
The G20 rightly laid emphasis on the challenge of hunger, so much of which results, as the Prime Minister accurately said, from conflict. It is important that we play our full part in addressing that. Perhaps the Minister could say a little on our efforts in Sudan, which, sadly, went unmentioned in the communiqué.
Paragraph 15 of the G20 statement states that the world is capable of producing the food it needs. It is, but to do so it needs farmers. I doubt that world leaders were lining up outside the prime ministerial suite to ask for his advice on how to treat those hard-working people. Can the Minister assure the House that the Government will give a lead to the world and think again about their cruel assault on small farming families?
I welcome the positive commitment to improving and maintaining relations with India, a great friend and a key strategic partner. On the Indian Ocean more widely, can the Minister tell us if, after the Government’s stampede to surrender the Chagos Islands without any consultation with the Chagossian people, President Milei of Argentina has asked for the handover of the Falklands? On Diego Garcia, President Trump’s nominee for Secretary of State, Senator Rubio, has said that the deal poses “a serious threat” to United States security. Will the Government undertake to pause the deal to allow for discussions with the incoming US Administration? Was that discussed with President Biden?
More widely on US-UK relations, can the Minister say something about the Government’s engagement with the incoming Administration? President Trump had a British mother; he hugely values that, and he loves Scotland. He may well be the last US President ever to have those credentials. Would it not be a historic act of folly if the UK Government, in their search for a so-called reset with an economically stagnant and divided EU, spurned the opportunity for a close and productive relationship with a pro-British US President?
The Prime Minister is clearly proud of meeting President Xi of China. He declared that he wanted a strong relationship, but when the Statement said, in a rather throwaway phrase,
“and, of course, Hong Kong”,
it sounded as if the snuffing out of freedom by China, contrary to treaty obligations, was a done deal; perhaps it was time to move on. [Interruption.] Someone says it is, but it is never time to move on on the strangling of freedom.
We hear that the Prime Minister mentioned the case of Jimmy Lai. I thank him for that, although the Statement was silent on it. But what assurances did we get in return? Was it not unfortunate that this glad-handing should go on in the week when the heroic Hong Kong 45 await their unjustified sentences?
Meanwhile, President Xi praised Labour’s economic policies. Had some Labour spin doctor sent him a line to take? Perhaps the president should see the comments from the CBI, British retailers and other business voices who say, correctly, that the Budget will destroy job creation and force up prices. Is that the message the Chancellor will be taking to Beijing: tax the living daylights out of wealth creators and innovators? I do not think they will roll out the red carpet in the Great Hall of the People for that. The Chinese are a little shrewder than that—although they may be quietly smiling at one of their international rivals dashing towards economic self-harm.
There was much that could be productive, and which we welcome, in the G20 discussions. However, surely it is now time that this globe-trotting Prime Minister turned his attention to problems at home: promises broken, growth stalling, inflation rising and business frankly reeling from the most brutal tax on jobs ever seen. It may have been high summer down in Rio, but here at home pensioners, farmers, small businesses and savers are wondering what tempest has hit them—and it was storm Starmer, not Storm Bert.
Lord Newby (LD)
I begin by joining from these Benches the tributes to Lord Prescott. With colleagues, I send our condolences to John Prescott’s family and friends.
I completely agree with the Prime Minister when he says that the world is safer when leaders talk. Given the many conflicts and challenges facing the world today, the need for international dialogue has never been greater. The Statement covers a very wide range of issues, of which I would like to refer to just five.
First, on our climate reduction commitments, it is a good start to set the target of an 81% reduction in our greenhouse gas emissions by 2035, but we still need an action plan to do so. The Statement stresses the important role which GB Energy and the National Wealth Fund will play in achieving this, but will the Leader accept that there is currently a complete muddle as to how the National Wealth Fund will operate at all? Its relationship with GB Energy is unclear, to put it mildly. Given the need to maximise investment on green energy from both these bodies, will the Government clarify this situation and present a detailed plan to explain how their laudable aspirations for decarbonising the economy will actually be met? As part of any plan, could the Government say what steps they are taking to ensure that the benefits from new wind farms are not delayed because they cannot get a timely connection to the grid, as was reported today in respect of BP’s Morven wind farm? We need a new sense of urgency in this whole area.
Secondly, we welcome the Government’s decision to join the Global Alliance against Hunger and Poverty, but can the noble Baroness the Leader explain how we can really step up to the plate on this so long as our commitment to aid continues to fall so far short of the 0.7% target? In the absence of any proposal to increase the currently planned 0.5% level, what will joining the global alliance mean? What is going to change?
Thirdly, on Gaza, we share the Government’s call for an immediate ceasefire and a massive increase in the flow of aid to Palestinian civilians, but does the noble Baroness accept that Israel shows not the slightest inclination to move in this direction, and is instead maintaining a programme of massive destruction and of denying aid to Gaza? The UK’s ability to influence events in the region is extremely limited, but one thing we could do would be to recognise Palestine as an independent state. Will the Government stop prevaricating on this issue and recognise Palestine now, without further delay?
Fourthly, on Ukraine, we support the Government in their determination to double down in our support for the Government in Kyiv. We welcome the long-delayed decision to allow the use of Storm Shadow missiles into Russian territory, but we believe that we should also be freeing up frozen Russian assets so that they can be used by Kyiv to support the war effort. This is an area where the Government could take a lead, by calling a summit of European leaders to unblock these assets. Will the Government now do so?
Finally, on China, the Prime Minister has had what he called “frank, constructive and pragmatic” discussions. This is welcome. The Statement refers to Hong Kong but is not specific about exactly what was discussed. Did the Prime Minister raise the case of Jimmy Lai and the 45 jailed pro-democracy campaigners? If so, what was President Xi’s response? When the Prime Minister says that we need to work together with China on delivering growth, what does that mean in practice?
The previous Government succeeded in trashing the UK’s global reputation, and we welcome the Prime Minister’s attempts to rebuild it, but action must now follow the promises he has made if we are really to punch our weight again on the international stage.
Baroness Smith of Basildon (Lab)
My Lords, I am grateful for most of the comments made by both noble Lords. I will do my best to answer as many as I can in the time remaining. I thank them for their comments about our friend John Prescott. John and I were introduced into this House on the same day. My mum still tells with great affection the story of meeting Pauline in the loo and having a chat afterwards. He was a one-off, and we miss him greatly.
I have to say that I thought the noble Lord the Leader of the Opposition’s comments about the Prime Minister were really unwarranted and unworthy of him. This country has a role to play on the international stage. We have not really made our weight and our presence felt in the way that we should. The fact that this was the first time in six years that there had been a meeting between the Chinese Premier and a Prime Minister does not serve the best interests of this country. The Leader of the Opposition asked specifically about that, as did the noble Lord, Lord Newby, and we have to co-operate where we can with China; we have to compete where it is appropriate; and, as my noble friend Lord Collins has said on many occasions, there are times when we must challenge as well. The frank discussions that were had were very important. Yes, the first item on the agenda was Jimmy Lai. The world will have seen that was the first issue that the Prime Minister raised, because the cameras were there at that time—although they were ushered out soon after.
The Secretary of State will make a further Statement on the detail of energy policy, but the thing that will make the most difference and will help enormously in bringing down prices and protecting our energy security is GB Energy, where we have been dependent on an international market buffeting us around. We will hear more about that, but in answer to both noble Lords, I say that we will publish our clean power action plan by the end of the year. The noble Lord, Lord Newby, was absolutely right to talk about the national grid connections, which are poor and need to be improved. My right honourable friend will say more on that, but we are working on improving those connections at pace.
I think the noble Lord, Lord True, was a little confused when he talked about return hubs and the Rwanda policy, comparing to what has happened in other countries. There is a real difference between offshoring and outsourcing. This country has had offshoring arrangements with other countries for some time, but when you outsource or offload your immigration policy, that is when there is a significant difference. Given the amount of money spent by this country on the failed Rwanda policy—frankly, more Home Secretaries, Prime Ministers and journalists went to Rwanda than those seeking asylum or who had to have their claims assessed—I will take no lectures from the party opposite about that. What will really make a difference is the kind of international discussion which is being had about tackling the gangs. I was surprised that the noble Lord did not congratulate the Government and the National Crime Agency, because working with other countries is really important. Think of the arrest in the Netherlands last week. He shakes his head at me, but it is a significant step forward and one we hope to see more of.
The noble Lord also asked about the Falkland Islands. I do not know how many times we have to say from this Dispatch Box that the Falkland Islands and the Chagos Islands are completely different. We have made clear our support for the Falkland Islanders time and again, and I am entirely happy to do so again. The sovereignty of the Falkland Islands is not up for debate; it is an absolute commitment. I remind him that it was the previous Government who started negotiations on the Chagos Islands back in November 2022. Those discussions were not concluded, and that put the military base at risk. Under the agreement secured with Mauritius, the UK/US military base on Diego Garcia is now secured. That is the first time in 50 years that it is undisputed and legally secure. That was not the case before.
The noble Lord asked for an assurance about US engagement. I thought that it was clear that it has been the policy of this Government, and will continue to be, that we engage with foreign Governments. He described the Statement as self-congratulatory. It was not. It made clear that we have a place in the world. We have to find our place in the world and show our commitment to negotiations. In the relationship so far, the Prime Minister has met the President and the President-elect; there is ongoing dialogue and discussion and there will continue to be so. The noble Lord should recognise that it is an important relationship for this country, but we also recognise that relationships around the world are crucial as well.
The noble Lord, Lord Newby, asked about aid into Israel and Gaza, and he is absolutely right. There are two sides to this: the hostages must be released—just imagine the agonies of those families not knowing if the hostages are dead or alive or what state they are in—and that is a prerequisite; but, at the same time, given the amount of suffering of the people in Gaza, getting aid in as quickly as possible, particularly with winter coming, is absolutely crucial. Both those issues were discussed at the G20, and we will continue to put pressure at every opportunity possible.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, we now move on to 20 minutes of questions. To get as many noble Lords in as possible, we need questions, not speeches.
Baroness Butler-Sloss (CB)
My Lords, the noble Baroness the Leader referred to GB Energy. Are the Government looking at small nuclear reactors?
Baroness Smith of Basildon (Lab)
I am happy to give a very quick answer to the noble Baroness: yes, they are.
Lord Howell of Guildford (Con)
It was a comprehensive Statement, but it included wording about
“a 2035 target to reduce all greenhouse gas emissions by at least 81% on 1990 levels”.
I know a clean energy mission is coming and we will learn the details there, but could the noble Baroness just explain how that squares with the aim of decarbonising all power by 2030 and an all-electric economy—or is that by 2035? Some of us are getting a bit confused with this and other developments. If we could just know roughly where we are going and whether these things are remotely attainable, that would help.
Baroness Smith of Basildon (Lab)
Targets are there to be attained and reached, and every effort is being made. The difference is that 2030 is the national target; 2035 is the international agreement reached at the summits. I hope that is helpful.
Lord Rooker (Lab)
While I applaud the Government’s policy of being civilised, nice and supportive of President-elect Trump because we have to work with him, will it be made abundantly clear, without qualification, that this country will not import hormone-treated beef or chlorinated washed chicken?
Baroness Smith of Basildon (Lab)
From a sedentary position, the noble Lord, Lord Harris, suggests that was an application to be ambassador—I think not.
On all these things, the food safety agency will be involved to ensure that all products must be safe. The issue of chlorinated washed chicken previously caused enormous concern to the public, and that is why labelling is important. But I am sure these issues will be discussed as part of a new trade deal.
Lord Hannay of Chiswick (CB)
My Lords, does the noble Baroness accept that this is an appropriate moment to mention Lord Prescott’s involvement in the Kyoto Protocol? I think it was one of his outstanding achievements.
Can the noble Baroness the Leader of the House say a little bit about the forward look for next year’s COP meeting in Belém in Brazil? With a good Brazilian Minister of the Environment who is genuinely committed to stopping the destruction of the Amazon rainforest, there are surely major opportunities now to have a somewhat less contentious approach than we had to this year’s COP. Can she also say a little bit about what we are going to do on food security, because Brazil is very relevant there. Brazil has enormous capacity for agriculture and food production but not a very active programme of development in developing countries; we have a development policy. Can we not make them work a bit better together?
Baroness Smith of Basildon (Lab)
I thank the noble Lord for his comments about John Prescott and Kyoto. It was one of the things of which he was most proud, and in many ways he was a man ahead of his time—many derided him on that issue but he was proved to be absolutely right. It remained an abiding passion of his right until the very end.
The noble Lord is right that the Brazil COP presents a major opportunity. Discussions are difficult when so many countries are trying to reach an agreement, so how these discussions are managed and how the countries work together is really important. The noble Lord has made the point about how the climate emergency affects every part of our lives in terms of food security and migration; they are interconnected, and that is why the role on the world stage is important. Food security is an issue that will be discussed at the next COP, because it is part and parcel of what is happening to the world with the climate emergency. The noble Lord is also right that the relationship between our country and Brazil has grown in the last few years. Certainly, at this COP, both Brazil and the UK were asked for advice on many occasions. After a very difficult COP this time, we must try to be as optimistic as we can to see what progress can be made in Brazil.
Baroness Bennett of Manor Castle (GP)
My Lords, I think that many international and national observers will be surprised that we should have a Prime Ministerial Statement covering COP 29 in which the term “fossil fuels” does not appear once. Sadly, there were many disappointments coming out of COP 29, one of which was the key negotiating item known as the UAE dialogue, which was meant to follow on from the commitment in COP 28 to “transition away from fossil fuels”. What was put forward in Baku was rejected because countries said it was too weak. Saudi Arabia suggested that this was only one of the options which countries had agreed at COP 28. Does the noble Baroness agree that this is not correct? Are the Government considering showing real leadership such as we saw this week from Glasgow City Council—following London, Edinburgh and many other local governments around the country—in calling for backing for a fossil fuel non-proliferation treaty? Surely the UK should be showing leadership in the area of fossil fuels.
Baroness Smith of Basildon (Lab)
The noble Baroness will have seen the clean power objective—the plan that will be coming out before the end of the year—which I think will address many of these concerns. I understand her concerns about the last COP just gone, but we have to build on this. There are two alternatives: either we give up and walk away saying, “We did not get what we wanted, so why continue?” or we just have to keep going, because each time progress is being made. The noble Baroness will know that nothing happened for 11 years about the issues that were agreed in Paris to proceed on carbon markets; at this COP, we finally agreed the rules, so progress is there. It is not enough, and it is not fast enough, but that is why we have to keep on going. The noble Baroness will see that we are making progress on clean power. To respond to the noble Lord, Lord Hannay, we have already started working with Brazil about what will happen at the next COP. Perhaps I am just an optimist, but I think we just have to try to make progress at every stage we possibly can.
Lord Houghton of Richmond (CB)
My Lords, I heard what the noble Baroness said about the Chagos Islands and Diego Garcia. Surely the strategic issue to be squared within the treaty is not the security of the base but the permissions of the US forces stationed there, particularly the B52 bombers, to prosecute operations from there without being subject to any form of a red card from the Mauritian Government. Can she confirm that the wording of the treaty is sufficiently clear that American operations mounted from Diego Garcia will not in some way be prejudiced?
Baroness Smith of Basildon (Lab)
The noble and gallant Lord raises an important point. We are confident that the treaty does provide those assurances. That was part of the discussions which took place during the last Government prior to the treaty being signed.
Lord Purvis of Tweed (LD)
My Lords, it is to be welcomed that the UK will join the Global Alliance Against Hunger and Poverty. However, in the next clause, the Prime Minister’s Statement said it was
“to bring an end to the lost decade in that fight”.
One of the reasons why that fight was being lost is that the richest countries in the world—including the UK, in breach of legislation—have reneged on the commitment they gave on previous development support of 0.7%. Can I read from the Statement that, during this Parliament, this Government will provide more development partnership assistance to such countries to alleviate action on hunger and poverty?
Baroness Smith of Basildon (Lab)
My Lords, we would certainly wish to be in a position to do so. That has been the case in past Labour Government responses. We are disappointed by the financial situation that we inherited, with a—dare I say it?—£22 billion black hole, but the noble Lord will know from his experience that this is something to which the Government and the Prime Minister personally are committed. We will do all we can.
Lord Sentamu (CB)
My Lords, I would like to follow the injunction of the Chief Whip by asking a question but, before I do so, perhaps I may join in the wonderful words that have been said about John Prescott. He was an MP in Hull, when Hull was facing terrible education. I remember him persuading us that Archbishop Thurstan School, which was a secondary school, should be renamed—believe it or not—Archbishop Sentamu Academy. He said, “The Government may lose the election, so make sure you get your £45 million ahead of this”, so we applied and we got it. Within a week, the coalition Government came into place and stopped all the school-building programmes that had been planned. The people of Hull want to say to John Prescott, “You have lifted us out of poverty and out of poor education”. For the first time, the Sentamu Academy has pupils leaving Hull to go to different universities and continue education.
In paying tribute to John Prescott’s work on COP, my question to the Leader of the House is: what more lessons could be learned from the way that he tackled poverty, particularly that of children?
Baroness Smith of Basildon (Lab)
I thank the noble and right reverend Lord for his recollections. Many people have similar, personal recollections of John. One of his great strengths was his ability to negotiate. Many felt that he would play up to his gruff exterior at times, but anyone who had watched him in a room of people disagreeing find some way to get some kind of agreement would have understood the brilliance of the man in that regard. That plays into COPs, in that people go in with their own objectives and do not always get what they want, but the worst thing they can do is walk out of the room, leave and make no progress. The lesson I take from John’s life is never to give up.
Lord Bellingham (Con)
My Lords, the Ukraine war was a recurring theme at the G20, and it looks very much as though this appalling war of attrition will continue for the foreseeable future. Obviously, funding is a key matter, and I noted the point from the noble Lord, Lord Newby, about frozen Russian assets. Can the Minister elaborate on that and give the House some explanation of whether there will be a breakthrough there?
Baroness Smith of Basildon (Lab)
My apologies: I did not address that point in the time I had. Yes, there are ongoing discussions with others to make further progress on that.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, will the Leader of the House confirm that the Prime Minister will ignore the bleatings from those opposite and continue to attend all these important meetings with world leaders? That is far more useful than, for example, Boris Johnson going to Italy to be entertained by Russian oligarchs. Given the record of the Tory Government over the last 14 years, does my noble friend not agree that the statement by the shadow Leader of the House shows a brass neck of which a kettle would be proud?
Baroness Smith of Basildon (Lab)
I always love my noble friend’s mixed metaphors, but I am not sure that a kettle has a brass neck. If it does, he has found it. One of the things that I find most useful, and I am sure everyone in the House agrees, is that whenever you attend a conference or meeting you make contacts and get to know people. In the few months that he has been Prime Minister, my right honourable friend has had to attend various conferences and summits. When you make good relations with people in the good times and have easy discussions, it makes those difficult discussions and harder negotiations easier in the longer term. There is no way that a bad or absent relationship helps this country. I hear the noise around the House, but I am grateful that we have a Prime Minister who recognises that good relationships with leaders of other countries are useful to this country, in good times and in bad. They promote the national interest, which is extraordinarily important.
Lord Whitty (Lab)
My Lords, I am very grateful for all the appreciation of the life of John Prescott, whom I knew and worked with for 40 years—indeed, I was his Minister in this House for four years. He was always prepared to negotiate, and that is what our current Prime Minister is doing in all these contexts. Negotiation is a multi-faceted thing, and you have to talk to people other than the person in apparent charge. The absence of America from the climate change talks, and its probable withdrawal under President Trump, is a real problem. But President Trump is not all of America. There is importance in keeping our lines open to American states, corporations, individuals and institutions so that pressure can be brought to bring America back into that process, because there are as many in America who support the reduction of fossil fuels as there are in the many countries that were present in Baku.
Baroness Smith of Basildon (Lab)
My Lords, my noble friend’s experience, and his work with John Prescott, really shone through in that question. There are some exciting developments in the US on clean energy and clean power. Our relationship is with the Government—whichever Government are in power, we maintain that relationship—but also with, as he says, companies, civic society and the people of the US. We have a lot we can learn from them and share with them. I can give him an assurance that that will continue. It is a very important relationship for this country.
Baroness Neville-Rolfe (Con)
My Lords, I agree very much with the Leader of the House on the need for continued international diplomacy, whatever the issues. Lord Prescott indeed played a distinct and valuable part in that work.
China is no longer a developing country, so why is it not contributing directly to the $300 billion fund for loss and damage rather than just counting what it is already doing towards the important climate change objectives agreed at COP?
Baroness Smith of Basildon (Lab)
The noble Baroness is right that China is still defined as a developing country, but I think we found a greater willingness to engage, and I hope we can make progress from that. That dialogue, and the fact that China is playing such a role and wants to play a greater part, is something that we should be optimistic about and try to build on, rather than reject.
Lord Mackinlay of Richborough (Con)
My Lords, my noble friend Lord True asked a couple of questions. I know that time was short, so I am sure that the noble Baroness will be grateful to be asked the questions once more. What was the cost of sending those 450-odd government attendees to Baku? What did they actually do? Furthermore, can she explain to the elderly people across this country deprived of their winter fuel allowance what amount of their future taxes will be Britain’s contribution towards the $300 billion by 2035?
Baroness Smith of Basildon (Lab)
The noble Lord’s last question is a calculation that I doubt he or I have made yet. On the conference attendees, the Prime Minister went to show leadership on this, which was important, but there were fewer attendees in the UK delegation than there were last year under the previous Government. I do not have the costs; no doubt, they will be available in due course, and the Secretary of State will make a broader statement.
I think that eight Ministers attended along with officials, the devolved Governments and businesses. It was a wide-ranging group because we want to have that wide range of discussions. To anybody who questions the value of attending in person I say that a conference that runs over by 30 or 35 hours because of the difficulty in reaching agreement is proof that it is not something you can do over a video link, Zoom or Teams. You have to be there in the room and in person to try to make a difference.
Lord Liddle (Lab)
My Lords, should we not be proud of the fact that we now have a Prime Minister who is an internationalist who recognises that by pursuing internationalism we find the solution to so many domestic problems? Is this not a contrast to Boris Johnson, who spent his time insulting our closest friends and partners, and to Rishi Sunak, who could not be bothered to go abroad?
Baroness Smith of Basildon (Lab)
My Lords, yes, I am very proud of the role that our Prime Minister is playing in getting Britain back on the world stage as a force for good. That is crucial for the well-being and the interests of this country and for establishing a place in the world that shows what we can do and what we can achieve together. At a time when countries can make the changes they want and the greatest difference only when they co-operate, it is one of the crucial aspects of the premiership of any serious Prime Minister. I reiterate the point I made earlier: when you build up relationships with leaders of other countries, those relationships allow you to have not just the easiest discussions but the difficult discussions. There are lots of difficult issues that need to be discussed internationally, and our Prime Minister is putting himself in the best place to have such discussions.
Defence Programmes Developments
(1 day, 3 hours ago)
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Baroness Goldie (Con)
My Lords, I pay tribute to the marvellous men and women in our Armed Forces, and the civilian cohort who support defence in such an extraordinary manner and help to keep our country safe. Sometimes, in our political badinage, we are inclined to forget that. I know that noble Lords entirely support what defence is doing in our name and for us. I also pay tribute to the Government’s clear resolve to continue supporting Ukraine. I know, again, that this enjoys universal support in the House.
Prompted by the Statement, there are so many questions that I could ask that I am going to try to keep this simple. Looking at the recent antics of the Government, you might think that the pantomime season had arrived early: an embattled Prime Minister and his Chancellor telling business and farmers, “We’re on your side”, to be met with a chorus of, “Oh no you’re not”; an isolated Secretary State for Defra being told, “Look behind you” as the Prime Minister and his Chancellor hover above British farmers with a guillotine.
On defence, the Government’s approach is clearly predicated on the premise that ignorance is bliss. Defence spend will rise to 2.5% of GDP, but we do not know when. Will that decision, when it is known, inform the strategic defence review? We do not know. Will the strategic defence review inform the fiscal imperative of pinning down a date for 2.5% of GDP? We do not know. What impact is the imposition of VAT on school fees going to have on our Armed Forces? We do not know. Is it going to impact on recruitment? We do not know.
What do we know? We know that any significant question asked of the Government about capability—GCAP, the progress of AUKUS, the development of drones—is met with, “Wait for the strategic defence review report next year”. That response might be disappointing to inquisitive nuisances like me but, in fairness, it is a sustainable position if consistently adhered to by the Government—but it is not, because without awaiting any SDR outcome, the Defence Secretary announced in the other place last week that we are scrapping ships, including HMS “Albion” and HMS “Bulwark”, and helicopters. Given the Government’s steadfast fallback on the SDR to explain their reluctance to talk about anything, this is an odd aberration.
Let me explain, however, what makes it even odder. Earlier this year Luke Pollard, now the Armed Forces Minister, said that HMS “Albion” and HMS “Bulwark”,
“play a key role in the Royal Navy’s ability to project power and deploy Royal Marines at scale”.
He even criticised the Conservatives for not ruling out the mothballing of the two amphibious assault ships, which he said in January
“are important for the Royal Navy and should be retained”.
He also said on Twitter in January—this has been reported to me, because I have nothing to do with Twitter—that:
“Mothballing HMS Albion and HMS Bulwark when they still have a decade of planned active service ahead is bad for Plymouth and bad for the Royal Navy”.
I put the following questions to the Minister—or should that be Prince Charming? He is certainly one of the more acceptable faces of the Government. If his honourable colleague Mr Pollard was so right in January, how is he so wrong now? If, as he identified, these ships are a classic illustration of a capability that is not going to be used every day but must be held in readiness, to what extent is the operational mobility of the Marines compromised by this decision? Does the Minister anticipate, ahead of the strategic defence review report, more precipitate announcements about assets being scrapped and decommissioned? Lastly and in particular, will he reassure the House that there are no plans to mothball either of the carriers?
Baroness Smith of Newnham (LD)
My Lords, I do not plan to engage in any pantomime discussions, which we are getting perhaps because we are slightly close to Christmas, because it is important that we remember the significance of defence. Something that is appreciated, not just in your Lordships’ House and the other place but by our Armed Forces, is the extent to which the political parties are united in the tributes that we pay to them, and the fact that we recognise their commitment to our country. We also owe them a duty to ensure that defence expenditure means that the equipment for our Armed Forces is the best appropriate and that we are putting the right resources into defence.
We have a strategic defence review where we understand that there is a cap. As the noble Baroness, Lady Goldie, said, we do not know at this point when the 2.5% is going to be introduced, so that is an uncertainty. We welcome the fact that the Secretary of State brought forward a Statement on defence programmes and that the Minister is in his place today to answer questions on it, because a lot of questions that require further probing.
The Statement from the Secretary of State seemed to suggest that the answer to a lot of the questions from the noble Baroness, Lady Goldie, is, “We didn’t know the state of either the Budget or our Armed Forces when we took office”, and that is why the issues about decommissioning are being brought forward now. Could the Minister say whether the decommissioning of equipment is being done now because the Secretary of State has discovered that the time has come and in fact it would cost more to keep these ships and other pieces of kit operational? How much is the decommissioning going to cost? Has that been taken into consideration? Are the further pieces of equipment part of an ongoing review programme? It is important for us to understand what the Secretary of State and the chiefs are actually looking at.
Beyond that, what scope is there for the Secretary of State, and the Minister of State in your Lordships’ House, to tell us what is planned for defence procurement? In the Statement, the Secretary of State made the repeated point that the Treasury has understood the importance of defence for growth. We agree, yet the Budget increased expenses for the defence industry, like every other business, because of employers’ national insurance. The Minister has reassured me, both in Grand Committee and in private discussion, that the national insurance increase will not impact on the cost of the Armed Forces. We accept that, and it is very welcome. However, presumably the defence industrial base will pay the increased national insurance costs. While the primes might be able to take that as relatively small change, is that true of the sub-primes? What impact will it have on the small and medium-sized enterprises so vital for the defence industry?
I turn to something that could be either a vicious circle or a virtuous circle. If defence is indeed able to contribute to the growth of UK plc and we see our economy grow, that will, by definition, also help with defence expenditure if the 2.5% is part of a growing GDP. But if the defence sector and the economy as a whole go into decline—and there have been suggestions that the Budget might lead to a decline in our national GDP—what impact is that going to have on our defence expenditure? These are some clear questions that we need to understand. They are not intended to be unhelpful, but simply to ask whether we are really giving the support needed to the defence industrial base.
Finally, one of the things we heard across the Chamber in discussions about the G20 and COP summits was the importance of internationalism. The Secretary of State mentioned the Trinity House agreement on British-German defence co-operation. What are we expecting in terms of a Lancaster House refresh? Also, what is His Majesty’s Government’s assessment of the reports in today’s Financial Times that France has begun to step back from its attempts to veto non-EU countries such as the UK being part of the European defence investment programme? That, presumably, will assist the UK in strengthening our defence relations not just with France but with the European Union.
The Minister of State, Ministry of Defence (Lord Coaker) (Lab)
I want to start by thanking the noble Baronesses, Lady Goldie and Lady Smith, for their comments and by reiterating that defence is an issue that unites us across this Chamber: we all want the best for our country and for our Armed Forces, and here there is no division between us. I also thank the noble Baronesses for their ongoing support in respect of Ukraine, just as we supported the previous Government when we were in opposition. Again, this House is united in that regard, and I am grateful that reiteration.
I hope the House will bear with me while I also pay tribute to the noble Lord, Lord Levene, who gave his valedictory speech a few days ago, when I was unable to be in attendance. We all know of the noble Lord’s work on defence, and I want to put my personal thanks to him on record and to wish him well for the future.
The noble Baronesses, Lady Goldie and Lady Smith, paid tribute to our Armed Forces across the globe and they were right to do so. Not everyone in the Chamber will agree with everything I will say today, but there is no division between us on our respect for our Armed Forces and the work they have done, are doing and will do. The noble Baroness, Lady Goldie, was particularly right to remind us of that, and perhaps we should start every debate by saying it, because I know that many members of the Armed Forces read such debates.
The noble Baroness, Lady Goldie, mentioned the 2.5%. As I have said, the pathway to the 2.5% will be laid out at a future fiscal event in the spring. She asked about the sequencing with respect to the SDR. The SDR will come prior to the 2.5%. I hope that clarifies that point.
The noble Baroness mentioned my honourable friend Luke Pollard MP, who campaigned hard for clarity on the landing platform docks to which she referred. He fully supports the Government’s publicising and making it clear that, following the mothballing introduced by the previous Government, neither ship had been to sea since 2023—indeed, HMS “Bulwark” had not since 2017. On current planning, neither ship was due to go to sea again before their planned out-of-service dates of 2033 and 2034. In a sense, the previous Government had effectively got rid of those two platforms themselves, while all this Government have done is to announce something that had already happened.
I would also point out that, as the noble Baroness will know, we have three Bay- class landing ships, “Lyme Bay”, “Mounts Bay” and “Cardigan Bay”, and a further RFA “Argus”, which will do virtually the same for us as the two ships that have been decommissioned. As the defence review will no doubt point out—I see that my noble friend Lord Robertson has walked in—the Royal Marines will play a full and proper part in the future defence of this country, as they have done already this year without the use of those two landing platform docks. They have been in Australia, in Gaza and all over the world, conducting their various activities. As the noble Baroness says, we should be proud of the fact that they have done that—and they have done it with two landing platform docks mothballed in Plymouth.
In answer to the noble Baroness, Lady Smith, what the Government are trying to do is to get rid of outdated equipment that is no longer being used. All of this has been backed by all the chiefs in the Ministry of Defence, who have supported every single thing laid out in these proposals. If noble Lords object to it, they are objecting to something the professionals have told us they support. They support the decommissioning of the landing platform docks and of HMS “Northumberland”, which is beyond repair. We are trying to accelerate the replacement of the Type 23 frigates with eight of the world’s most advanced, Type 26 anti-submarine ships.
The Wave-class tankers are being got rid of because we do not need them any more. Instead of having two that were last at sea in 2017 and 2022, we will have four RFA Wave-class tankers that will provide the same commitment and resource to the Royal Navy as the two that are being decommissioned. I would have thought that was a sensible thing to do.
We are getting rid of Watchkeeper because that system has been in service since 2010 and, according to all the military chiefs, is out of date. The Ukraine war has shown that we need to replace it with something else. The Chinook helicopters are going—14 out-of-date helicopters that have been in service for more than 35 years. They are to be replaced with new, state-of-the-art helicopters. The contract for the Pumas is not being extended and they will have to be renewed in due course.
These pieces of equipment are all currently on the books, and we believe they can be decommissioned and that new equipment can replace them, so that the Armed Forces of this country have the modern equipment they need to prosecute the conflicts we send them to work in on our behalf. I would have thought that all noble Lords could support that. If we do not support such decommissioning, we will have equipment that is 50, 60 or even 80 years old. That is ridiculous. You have to move on and, at times, take difficult decisions because that is the way to ensure that we move forward.
The noble Baroness, Lady Goldie, mentioned the continuity education allowance with respect to providing for the education of the military. The CEA will be increased to be consistent with the current policy of meeting the increase in VAT fees. She will know, as will the noble Baroness, Lady Smith, that, notwithstanding the defence review, the Government have made a clear commitment that the nuclear deterrent and AUKUS will be protected. There might be better ways of doing both, and we would always search for savings within them, but it will not be at the cost of the ability of those systems.
The noble Baroness asked me about the carriers. The thing to point out for this country is that next year the “Prince of Wales” will lead a carrier strike group into the Indo-Pacific with our allies, with ships all around it, taking hard power from this nation with our alliances, to show that we support the international rules-based order, the rule of law and the freedom of navigation on the seas. That is where the carrier the “Prince Wales” will be next year, and I think that is something we should be singing about and talking about. Not only will that be demonstrating hard power, but defence diplomacy will go on all around the world to reassure our allies that this country, along with America and everyone else, stands up for the rules-based order that seems to be threatened by others who seek to undermine it.
The noble Baroness, Lady Smith, asked about procurement. Defence procurement will be at the heart of everything we do. Noble Lords can see the point we are making about new equipment. We hope that much of it will be built within the UK, across the whole of the UK, benefiting all the regions and nations.
On national insurance, the noble Baroness will also know—again to confirm the point I made—the Armed Forces will not pay or will not have a cost, though there may be accounting issues. Of course, national insurance will have an impact on other firms as it will for all firms.
The defence equipment plan before us seeks to decommission equipment that we believe is out of date. New equipment can be better placed to meet the threats we face, and it is those new threats that we need to face: it is the wars of the future we need to fight, not the wars of the past.
Lord Craig of Radley (CB)
My Lords, I wonder whether the chiefs would have been happy to accept these cuts, as the Minister says, if there had been 2.5% available now—it is against the amount of money that is available. In addition to the equipment that has been taken, there are serious shortfalls in personnel, particularly engineers. What steps are the Government taking to overcome these particular shortfalls?
Lord Coaker (Lab)
That is a really good question. On the first point about spending, the noble and gallant Lord will know that, notwithstanding the amount in the budget—there is 2.3% at the moment, and we have laid out and talked about the pathway to 2.5%—whatever amount of money the defence chiefs have to spend, they will always want to spend it in the best possible way. We have discussed with them a way of doing that ensuring that we have the newest and best possible equipment available to our Armed Forces, and that at times will mean decommissioning older equipment.
On the noble and gallant Lord’s second point, in terms of retention payments for aircraft engineers, as part of the Government's commitments to renew the nation’s contract with those who have served, eligible tri-service aircraft engineers will be given £30,000 when they sign up for an additional three years of service. From April 2025, this will be applicable to around 5,000 personnel in total. That is one practical way we are trying to deal with the specific point the noble and gallant Lord raised.
Baroness McIntosh of Pickering (Con)
Can I press the noble Lord on the number of fast jets that are currently in service and are expected to be in service, say, over the next five years, and also on the number of fast jets pilots that we are training? In one constituency alone, the Vale of York, which I had the honour to represent for 13 years, we had at that time RAF Linton-on-Ouse, RAF Leeming, Dishforth airfield and Topcliffe airfield as well, so I hope he will give me some encouragement that we are going to be on track for a number of fast jets going forward.
Lord Coaker (Lab)
We certainly will be purchasing a number of fast jets—the exact number will obviously be subject to debate, but we expect a number of F35Bs to be purchased. On the training of pilots, which the noble Baroness raised, the training and retention of pilots is something for which we have an ongoing review within the Ministry of Defence; we are looking at that very carefully, but she is right to raise that as an issue.
Lord Stevens of Birmingham (CB)
My Lords, a bigger reason for the number of Royal Fleet Auxiliary ships stuck alongside is not the age of the vessels but the absence of seafarers to staff them. Can the Minister update the House on the ongoing industrial action affecting the Royal Fleet Auxiliary, which is obviously having a significant impact on the Royal Marines and the Royal Navy?
Lord Coaker (Lab)
I thank the noble Lord for raising the point about the industrial dispute affecting the Royal Fleet Auxiliary. The only thing I can say is that discussions are ongoing. We obviously hope it can be resolved to everyone’s satisfaction in due course.
Baroness Bennett of Manor Castle (GP)
My Lords, the Statement says that “difficult decisions” are required. Should those difficult decisions—or at least, difficult considerations—not include giving serious consideration as to whether we should continue a nuclear weapons programme? Philip Stephens, a contributing editor at the Financial Times wrote in a piece this week that the defence review, as currently constituted, is
“a necessary start, but an inadequate one”
to considering our defence policy. Stephens says in that article:
“A brave government would also ask whether it is wise to spend so many billions on a nuclear system maintained by the US”.
Is this a brave Government?
Lord Coaker (Lab)
We are certainly a brave Government, but it has been a consistent policy of whatever Government have been in power to support the nuclear deterrent. The nuclear deterrent will continue; we will renew the nuclear deterrent. I just say to the noble Baroness, who is quite entitled to the opinion she holds, that I think it incumbent upon us to do that, given the threats we are seeing from President Putin—the irresponsible threats at the present time raise the prospect of it. Let us be clear about this: we support the nuclear deterrent, and we support its renewal. That is an important part of our defence.
Lord Houghton of Richmond (CB)
I draw Members’ attention to my relevant registered interest as a member of the Thales advisory board. I offer some sympathy to the Government regarding their defence inheritance, which must appear to be an appalling mismatch between requirements and resources.
When I was in the MoD, when we needed to save money, it often had to be found where savings could be made—that is, in money that was uncommitted—as opposed to where savings should be found, often on money that was committed on historic mistakes. Can the Minister therefore confirm that the process applied has been truly rigorous in respect of operational priorities? Within those priorities, the Minister mentioned the deletion of Watchkeeper. Did its deletion recognise the potential associated sensitivities to defence export sales in the Middle East, including sensitivities that involve GCAP?
Secondly, the Statement mentions a
“fully fledged national armaments director”.
Can the Minister perhaps offer the House some insight into what is the defining element of this fully fledged national armaments director? Particularly, what will define his relationship with the defence industrial primes? Will it be a relationship that ensures that, going forward, defence capabilities are principally bought in the context of benefit to the taxpayer and defence as opposed to shareholders of defence industrial primes?
Lord Coaker (Lab)
First, we recognised the sensitivities around the deletion of Watchkeeper and they were a consideration. In terms of operations, the decisions around decommissioning were made in a way that would not compromise operations. The chiefs were clear to us that operations would not be compromised by any of the decommissioning taking place.
The point about the national armaments director is an extremely important one. The national armaments director is to give greater strength to the idea that we need to rebuild our arms industry and ensure that the stockpiles we have are of sufficient size to meet the threats of the future. In doing that, the relationship with the defence industry—whether the primes or the smaller companies—will be important. The important point is that it is not to be something that is in the interests of the shareholders but something that we need to discuss, which is that it is to be in the national interest and in the interests of our international alliances. That is what is important to us all. We have to have an armaments director which drives forward an arms industry which gives us the weapons and stockpiles we need.
In answer to the point from the noble Baroness, Lady Smith, I have not seen the Financial Times article with respect to the European defence industrial strategy, but that is certainly something we have been discussing with our European friends.
Lord Mountevans (CB)
My Lords, in concluding his remarks the Minister pointed to the need to be prepared for future threats. The United Kingdom has extensive infrastructure within the contiguous exclusive economic zone around these islands, be that oil and gas pipelines, gas and electricity interconnectors, or the vital undersea cables that are so important for the City and the two-thirds of financial services and professional business activity conducted outside London. Britain’s leading industry is very vulnerable. In view of the events last week in the Baltic and the fact that there are three warships around this possibly offending Chinese vessel down off the Skagerrak, and the continuing grey zone activity of Russian vessels around our coast and this vital infrastructure, is the Minister content that we have it adequately protected for the future and for today?
Lord Coaker (Lab)
That is certainly one of the questions the defence review is looking at: how we protect underwater cables, pipelines, et cetera. We are considering the capability that we have to deal with that. I hope I can reassure the noble Lord. I was in Copenhagen last week, where we discussed with the Northern Group of states what more we could do together to protect underwater cables and work together. Indeed, without going into too much detail, we have conducted a number of operations together to try to protect and deter with respect to these particular cables. He will also know that there has been other activity around the world where we have also sought to defend those cables from those who would do us harm and undermine the ability of our industry, and that of others, to operate in the way that it should be able to.
Mental Health Bill [HL]
(1 day, 3 hours ago)
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Baroness Merron
That the Bill be now read a second time.
Relevant document: Report of the Joint Committee on the Draft Mental Health Bill, Session 2022-23. Welsh legislative consent sought.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, it is an honour to move the Second Reading of the Mental Health Bill—a Bill which Members of both Houses have been waiting for and working on for some considerable time.
There is much consensus that our mental health laws are not fit for the 21st century. Many elements of the Mental Health Act 1983 are outdated. Its operation is associated with racial disparities and poor care for people with a learning disability and autistic people, and it fails to give patients an adequate voice. Modernising the Mental Health Act is a vital manifesto commitment for this Government, so I am proud to introduce reforms that will ensure that care is appropriate, compassionate and effective; give patients more say over their care; improve support to help patients understand and exercise their rights; and protect the safety of the public, staff and patients.
The wait has been too long. I know that a number of noble Lords were involved when the Act was last amended substantially in 2007, but, although attitudes to mental health have, thankfully, changed since then, the law has not kept up. The Bill is the product of the combined effort over some years by Members of both Houses and many outside Parliament, and all parties have rightly come together to support it. Sincere thanks are due to many, but I will highlight just a few, starting with Members of your Lordships’ House who served on the pre-legislative scrutiny committee in 2022: the noble Baroness, Lady Buscombe, as chair, as well as the noble Baronesses, Lady Barker, Lady Berridge, Lady Hollins and Lady McIntosh of Hudnall, and the noble Lord, Lord Bradley. All have given a huge amount of time, expertise and energy, which has informed and motivated this Government to strengthen the Bill. I confirm that we have improved the previous draft Bill by heeding the committee’s recommendations to include guiding principles and advance choice documents in this revised Bill.
I pay tribute to the former Prime Minister, the noble Baroness, Lady May, whom I had the pleasure of meeting earlier today with the Secretary of State. The noble Baroness, Lady May, identified the need for modernisation and set up the independent review of the Act in 2017. Without this, we would not be here today. I thank the independent review chair, Sir Simon Wessely, and his vice-chairs, including the noble Baroness, Lady Neuberger, who made the case for change and provided the blueprint to follow. I know they will continue to be champions for reform. I also thank the many stakeholders and parliamentarians who have engaged with us ahead of Second Reading and over the years, and those with lived experience, who have bravely told their stories.
The Bill will complement other major reforms that this Government have announced. The Budget announced £26 million to be invested in new mental health crisis centres to reduce pressure on accident and emergency departments. To cut mental health waiting lists, we will go further still, recruiting an additional 8,500 staff. As part of our mission to reduce the number of lives lost to suicide, these NHS workers will be specially trained to support people at risk. We will improve support for young people, with walk-in hubs in every community, making support workers more accessible to children, and a specialist mental health professional based in every school. The NHS has asked every provider of mental health services to review its offer for serious mental illness. By focusing on early intervention—prevention is the key—we seek to prevent people reaching crisis and to reduce the need for detentions in the first place.
I turn to what the Bill seeks to achieve. The Mental Health Act is there to protect people. Its core purpose is, and will remain, to be able to intervene, detain and treat when someone is so unwell that they present a risk to themselves or others. The overall aims of these reforms are to improve the care and treatment of people with severe mental illnesses when detained under the Act, to improve patient outcomes and recovery, and to protect the public, patients and staff. The existing Act confers certain rights on people who are detained, including the right to appeal their detention at a tribunal and a right to an advocate as well as to a medical second opinion in certain circumstances. The Bill seeks to strengthen and expand these rights. It will require the inclusion in the statutory code of practice of the new and revised guiding principles recommended by the independent review, which in turn informs professional practice around the Act. By doing this, we aim to improve things for patients and support a change in culture.
We are strengthening and clarifying the detention criteria to make clear that people will be detained only if they pose a risk of serious harm to themselves and/or others, and if there is a reasonable prospect that they will benefit from the proposed treatment. We are reforming the use of community treatment orders—CTOs—to reflect the revised criteria, to increase oversight and scrutiny of decision-making, and to improve the transfer of patients under a CTO from hospital to community services. We are also introducing statutory care and treatment plans for patients detained under the Act, except when under very short-term sections, to provide a clear plan for a patient’s recovery and a path to discharge.
Where the patient’s voice has previously been unheard, the Bill will place them at the centre of their care and treatment. We are introducing a new clinical checklist requiring clinicians to, as far as possible, involve patients in decisions about their care and to take their feelings and wishes into account.
We are making sure that patients know they can create an advance choice document and that appropriate support is available to help them do so, allowing those at risk of detention under the Act to outline their wishes and decisions while they are well. This document helps them retain control over decisions about their admission, care and treatment if they later become too unwell to communicate these preferences. Last week I saw and heard about the differences that these can make on my visit to the South London and Maudsley, where the words of welcome from service users about these measures highlighted the contribution that advance choice documents can make, particularly to tackle racial inequalities.
We are allowing patients to choose a nominated person to look out for them and their interests when detained and will be increasing their powers. The independent mental health advocacy service was a notable success of the 2007 reforms to the Act. It is a thriving sector, with advocates and volunteers working for excellent organisations such as VoiceAbility, making sure that people are involved with decisions about their care.
We are now looking to expand these services in two ways. First, we are making sure that patients who come into hospital voluntarily can access an advocate to help them understand their rights and be involved in decisions about their care. Secondly, for detained patients, access to advocacy will be on an opt-out basis, ensuring that patients are proactively offered this support when detained to improve advocacy uptake among detained patients.
I know only too well that noble Lords are acutely aware that for some people with a learning disability and autistic people, detention is both non-therapeutic and unnecessarily long. In order to better meet people’s needs in the community, we will limit detention so that people with a learning disability and autistic people can no longer be detained beyond 28 days, unless they have a co-occurring mental health condition that requires hospital treatment. This will affect only civil patients. Hospital will remain an option for those in contact with the criminal justice system, where the only alternative to detention in hospital is prison.
For people with a learning disability and autistic people, the right measures and support are very much needed alongside this change. That is why the Act will require that when people are detained, there is a care (education) and treatment review to be given due weight in decision-making. We are also creating new duties on commissioners to hold registers to help manage the risk of people going into crisis and being detained, and to better meet the needs of people through appropriate community services.
I am grateful for the work of the Ministry of Justice Minister, my noble friend Lord Timpson, and his department, to improve access to mental health care and treatment for people in the criminal justice system. The Bill will end the use of both prison and police cells as places of safety. It will end the use of remand for own protection under the Bail Act where the court’s sole concern is the defendant’s mental health.
We will introduce a statutory 28-day time limit for transfers from prison and other places of detention to hospital when a person requires treatment for their mental health under the Act. We will also introduce a subset of conditional discharge, called supervised discharge, to support the small number of restricted patients who are no longer benefiting from being in hospital.
We are aware that there have been concerns about public safety and are therefore ensuring that our reforms do not weaken the ability to detain people who could pose a risk of serious harm to themselves or others. I assure your Lordships’ House that these reforms do not change the core function of the Mental Health Act. Clinicians will remain able to intervene, to detain, and to treat whenever someone with severe mental illness presents a risk to themselves or others.
We are confident that this is the right package of reforms. However, the Bill further strengthens the measures in respect of public protection. The Bill improves on the previous draft Bill by: first, accepting the Joint Committee’s recommendation to remove “how soon” from the new detention criteria, making sure the Act cannot be misinterpreted to mean that a harm must be imminent to justify detention and early intervention; secondly, introducing a new requirement for the responsible clinician to consult another person when they are making a decision about whether to discharge a patient; and thirdly, strengthening the code of practice’s guidance on discharging patients and promoting the need for discharge planning tailored to the individual needs of patients and their circumstances. We will consult on changes to the code.
I am very grateful to noble Lords across the House for their ongoing support for and interest in the Bill. It has been a long time coming, and I know that we all want to get this on the statute book, which is why it is a priority piece of legislation for this Government. There has been a failure to reform, but today we begin to change that. I look forward to what I know will be a collegiate and constructive debate, which many will follow—inside both Houses and outside. I beg to move.
Earl Howe (Con)
My Lords, I begin by extending my gratitude to the noble Baroness, Lady Merron, for introducing the Bill into your Lordships’ House and for her very clear exposition of its contents. It is a Bill that we on these Benches warmly welcome. That welcome should not come as a surprise because, as the noble Baroness said, the Bill before us is the successor to a draft Bill prepared by the previous Government, a draft that owed its origin to my noble friend Lady May, on whose watch a review of the 1983 Act was initiated some seven years ago during her time as Prime Minister. Much of what we see laid out here is the product of diligent work carried out by Professor Sir Simon Wessely and his review committee, as well as the Joint Committee of both Houses, so ably chaired by my noble friend Lady Buscombe.
The passage of the Bill presents us with a golden opportunity to address both the current state of mental health provision and the law that governs it. The last major update of the Act took place in 2007 under the previous Labour Government. That may not sound like a long time ago but, as we shall no doubt hear from others, experience gained in the intervening years has taught us that a further update is indeed warranted if we are to ensure that the Act remains relevant and appropriate, and that its powers are proportionate.
Wherever the state uses its powers to deprive an individual of their liberty, the necessary safeguards must be in place so that those powers are used sparingly, proportionately and with the highest regard for human dignity and autonomy. That is why the Bill is so important. Since the last set of changes to mental health legislation in 2007, the number of people being detained under the Mental Health Act has grown exponentially. In fact, since 1983, the numbers have nearly doubled to a total of over 52,000 new recorded detentions between 2023 and 2024.
Within that total, we have also seen a stark disparity in the classifications of those being detained. Black people are 3.5 times more likely to face detention under the Act. Shockingly, to my mind, there are currently over 2,000 people with autism and learning disabilities detained in mental health hospitals across the country. I was equally shocked by the realisation that people with autism can be detained even if they do not have a mental health condition, leading to disproportionate, burdensome and wholly inappropriate treatment.
These issues occupied centre stage in the Wessely review, which proposed the formal recognition of four key principles that should from now on govern both theory and practice in this area of the law. The principles are: choice and autonomy; least restriction on liberty; therapeutic benefit; and the person as an individual. The previous Government fully accepted these four principles and—giving life, as it were, to those principles—the draft Bill set out to make a number of important changes. It strengthened the rights of patients with a learning disability, it gave patients greater autonomy in choosing how they wish to be treated, it introduced duties on commissioners to better understand and support people with a learning disability or autism, who may be at risk of crisis, and it sought to update community treatment orders, which are one of the key drivers of racial disparities in the numbers of people subject to restrictions under the Act.
It is therefore very pleasing indeed to see this Government’s firm commitment to enacting exactly these reforms, and I, for one, hope that as the Bill proceeds, we can come together as a House to implement and, where necessary, improve this hugely beneficial set of changes.
With consensus as the thread that, happily, we expect to run through our consideration of the Bill, there are nevertheless certain themes within it that are likely to require our particular attention. The first of these is community treatment orders. CTOs were first introduced in the Mental Health Act 2007. The Joint Committee on the earlier draft Bill was very clear that CTOs had been widely overused and that they are one of the leading causes of the racial disparities that I referred to a minute ago. The Bill before us makes a number of changes to the criteria governing the use of CTOs, all of them designed to support two of the key principles in the Bill: those of least restriction and therapeutic benefit.
As far as they go, these changes are desirable. However, the Bill stops short of including the full suite of recommendations made by the Wessely review. The Centre for Mental Health has raised this as a key concern. It points out that there is still no persuasive evidence of the benefits of CTOs. Against that background, it argues that a number of checks and balances are needed on the use of CTOs in future, over and above those already in the Bill. In particular, it notes that the committee recommended a full statutory review of the use of CTOs to report within a fixed timeline, which, on the face of it, is the least that we should be doing. I think we will want to debate in Committee why the Government have not felt it appropriate to go as far as the Joint Committee and the independent review recommended in this area.
The next important theme is children and young people. According to NHS data—and this was highlighted by the noble Lord, Lord Darzi, in his recent review—932 children in mental health units were subject to restrictive interventions in 2023-24. In total, more than 84,000 restrictive interventions were carried out on these children, which is a 51% increase from the year before. This is the highest number of restrictive interventions recorded since figures were made available in 2019, and that is despite the number of children in mental health units appearing to decrease.
We have a duty to use the Bill as an opportunity to identify ways of reducing such restrictive interventions and using them more humanely and more proportionately. Two years ago, the Government launched the Oliver McGowan training for NHS staff to help them better deal with young patients with autism. Noble Lords may remember that this was in response to a truly harrowing and appalling set of occurrences that ended with the death of a young man. It is fair to say that the case shook the health service to its core. I believe we have in the Bill the opportunity to take forward those lessons so as to protect children who may be at risk from unwarranted detentions.
The independent review and the Joint Committee had much to say about how treatment of children under the Mental Health Act could be improved. Unfortunately, by no means all those recommendations have found their way into the Bill. One such omission relates to the inappropriate placement of under-18s into adult wards or facilities that can sometimes be miles away from their home. The Joint Committee found that in each of the years 2016-17, 2017-18 and 2018-19, over 1,000 children were placed out of area, and that in 2020, 21% of children and young people were placed as in-patients more than 50 miles from their home.
It is perfectly obvious that being taken to an unfamiliar environment in a place far away from friends and family is almost guaranteed to exacerbate the issues young people face when experiencing a mental health crisis. On top of this, data from the Care Quality Commission showed that in 2021, 249 children and young people admitted for mental health treatments were housed on adult wards for more than 48 hours, some for a good deal longer than that. These are uncomfortable figures; I hope noble Lords on all sides of the House will want to ensure that, through this Bill, we take all possible steps to bear down on the scale of these problems and strengthen the protections afforded to children and young people.
One of the core themes that has remained prominent throughout the process that has led to this Bill is that of choice: giving patients as great a degree of autonomy as possible in how they are treated and maximising their ability to determine what happens to them if they are detained. In that regard, I think the Bill succeeds on many counts, but one measure recommended by the Joint Committee was that there should be a statutory right to an advance care document for every patient who has been or may be detained under the Mental Health Act. The Bill, as it stands, does not follow up on this recommendation. Instead, it places a duty on NHS England and integrated care boards to make information regarding such documents available to patients. I do not doubt that this is a beneficial reform, but we should debate whether it goes quite as far as it usefully might. Guaranteeing patients and service users the chance to state and record their preferences for care and treatment plays directly into the key principles of choice, autonomy and treating every person as a rounded individual—so what are the barriers to doing that?
There are a whole host of detailed issues which we will need to cover in Committee. The final, major area I want to touch on is that of the role played by the police. Inevitably, circumstances arise in which the police are required to become involved with people who may be a risk to themselves or to others. There is a strong feeling that encounters with the police are far too common for people with mental health conditions. As the independent review and the National Police Chiefs’ Council have pointed out, the presence of the police in situations where a mental health issue poses a risk of serious injury or death can be counterproductive. In its written submission to the Joint Committee, the Metropolitan Police stated that:
“Our officers simply cannot provide the specialist care needed, exposing both patients and officers to extreme risks”.
The NPCC has also expressed its concern that the role of the police in mental health pathways must be reduced.
It is welcome that the Bill goes some way to addressing this. Clause 46 removes police stations and prisons as places of safety, thereby preventing patients experiencing mental health crises from being locked up inappropriately. However, there is a potential knock-on effect that we should talk about in Committee. Well-intentioned as the provision is, it could well lead to a rise in people being admitted to accident and emergency departments, escorted by the police, and having to wait in crowded spaces with the lack of the necessary, specialised facilities until they can be assessed by clinicians. In this environment, the risk of harm could well be multiplied. We need to ask how this risk can best be mitigated. I fear that any realistic answer will need to involve resources, by which I mean taking steps to ensure that the requisite arrangements are made for NHS trusts to deal with an increase in the number of mental health patients being admitted to hospitals as places of safety. This is not an easy set of issues, but it is a subject that we cannot duck.
Parliament must see to it that wrongful, inappropriate and untherapeutic detentions of those undergoing a mental health crisis are brought to an end. The Bill provides us with a necessary and welcome opportunity to transform the treatment of those with mental health conditions and to bring both doctrine and practice well and truly into the 21st century. Along with my noble friend Lord Kamall, I look forward to working with the Minister and with noble Lords on all sides of the House to scrutinise and—where we can—improve the Bill’s provisions. Many thousands of the most vulnerable members of our society are depending on us to do so.
Baroness Barker (LD)
My Lords, I declare an interest as a member of an advisory panel for Rethink Mental Illness.
The House of Lords is an institution that is frequently criticised. Those of us who are often called on—not least by schoolchildren—to defend it often find ourselves having to give examples of work it has done which would not have been done by anybody else. As a veteran of the pre-legislative and post-legislative scrutiny of the Mental Capacity Act, the pre-legislative scrutiny of the Mental Health Act 2007 and all the various bits of subsequent legislation, I think that we have arrived at the point with this piece of legislation where we can make a defensible case for the unique contribution of this place to legislative progress. As the noble Baroness, Lady Merron, was generous enough to say in her introduction, there are a lot of us in this place who have got form on this. Specifically, there are an awful lot of us who have detailed knowledge of all those bits of legislation and of the workings of the 1983 Act.
If the noble Baroness will not mind me saying, we come to these pieces of work in two minds. It is great to have the opportunity to go back, look at what we did in the past and rectify some of the mistakes. However, it is always also deeply frustrating because, in truth, here we are again putting another patch on the 1983 legislation. We will never get the mental health system that we so badly and desperately need until we do more than that.
Having said that, along with other noble Lords, I congratulate Sir Simon Wessely and his team, and specifically the working groups that worked with him. If any noble Lord who has been inundated with briefings from all the interested parties, as we all have been, is ever in doubt about a subject, they should go back to the report of the working groups to understand how people have arrived at their conclusions and what we should perhaps strive for. I say that as the person who sat here night after night during the passage of the 2007 legislation, arguing for an advance choice document against a lot of entrenched opposition, not least from practitioners. It is really important that we use the privilege of our position—I mean that: privilege—to work away at this legislation as we did with that so that, perhaps uniquely, we can make some progress.
Those of us on these Benches will support anything that makes clinicians have to be more accountable and transparent in their work. We can have any legislation we like but, until such time as we call decision-makers to account, we are not going to get anywhere on behalf of people who are detained. They may be detained for their own good. They may be detained for the safety of others, but they are none the less detained. Their opportunities to challenge the decisions made are quite rare. As ever in this House, in the end, when we are coming to a decision, we always have a duty to defend human rights. Human rights legislation exists to defend the people that nobody in society likes. Quite often, that means the people subject to this legislation.
On the issue of principles against the Bill, having gone through the Mental Capacity Act, and having then subsequently reviewed it and its implementation, with serried ranks of professionals coming in to tell us that they just ignored the principles which had been in that Bill since the beginning, I am not overjoyed that they are going to be stuck into a code of conduct. This will surprise the noble Baroness, Lady Merron, not a lot. I do not honestly think it will make any difference at all. They are very good principles but, unless and until they are in the Bill and practitioners believe that their decisions will be judged against them, they will be useless.
Lots of other people can speak about learning disabilities far better than I can. I want to say just two things. First, the noble Earl, Lord Howe, talked about training professionals in relation to young people. Increasingly, people are diagnosed with learning difficulties, and particularly autism, as older adults. We should listen to what the noble Baroness, Lady Hollins, has been telling us for years and require all mental health practitioners to have training in the diagnosis of learning disabilities and autism. That is the one thing that would make a swift and tangible difference in this area.
Secondly, the alignment—or non-alignment—of the Mental Capacity Act and the Mental Health Act has been problematic. We have known about that for more than 20 years. To everybody who knows about it, I simply say “Bournewood gap”. To those who do not, I say that the two pieces of legislation are built on completely different bases. Two people, sitting side by side, can be treated according to one or the other depending on who is in the room at the time. If you get banged up under one, you have quite a lot of rights; if you get banged up under another, you do not. I understand why Sir Simon and his team thought that it would be too long and too difficult a job to sort this out. It was much better that we carried on to do some of the more urgent things in this Bill, but we have to go back and do it. Other jurisdictions are going down that path.
The one thing that the noble Baroness and the Government have to do is give a commitment that they will monitor that and, upon the passage of this Bill, put in place a system of funded research about the change to bring in what is known as fusion legislation. If we do not, we will just consign a load of people to being wrongfully treated, so I hope that she will do that.
In a similar vein, Dr Lucy Series and Luke Clements, who are academics and practitioners who have worked on this for a long time, sent us a briefing that explains in characteristic detail the deficiencies that arise under Section 73 of the Care Act 2014. It means that people who are being treated in private settings, even though their treatment was commissioned by the NHS, are not being properly protected by the Human Rights Act. They have written a very short but effective paper for us, and I simply ask the noble Baroness to commit to a meeting of interested Peers—there are a number of us—with Dr Series and Luke Clements, so that we can deal with that. Can we stop treating people differently just because of the person or organisation that happens to be providing their care?
On CTOs, we are not allowed to wear T-shirts in here but, if we were, I would be sorely tempted to wear one that reads, “Told you so”, because we did. In 2006-07, we sat here night after night saying, “You are telling us that this is not going to be used very often or used disproportionately against some people. That is not true, is it?” It really was not. Because of that and the racial disparities, I and others were for a long time of the view that CTOs really should go because they were enabling bad practice by practitioners. What changed my mind was listening to patients and their families, because there are a small group of people for whom CTOs work, are the least restrictive option and are beneficial. We should therefore keep them. I am reluctant to admit that, but we really have to change all the processes around them to make sure that practitioners are sticking to the intention.
Advance choice documents are another “I told you so”. I am so pleased that they have done what enlightened practitioners said they would back in 2005-06; they have improved care for people. I am indebted to the noble Baroness, Lady Finlay, for telling the joint scrutiny committee about the work that was done in the field of palliative care to make sure that advance choice documents are electronic, and therefore more widely available, and to minimise excuses on the part of practitioners: “Well, I didn’t know about it”. A team from King’s has been looking at that. I hope that, during our discussions, we can go into that in greater depth. I do not quite know how that will work, but it is important.
On prisons and police stations, we were very lucky in the joint scrutiny committee because one of our members was an A&E doctor so we talked about this quite a lot. The truth is that people will still turn up in A&E because the lights are on. That is where people in distress will go. There will also be people who, faced with somebody who is having an episode, still call the police, because they are frightened and do not know what to do. During the passage of the Bill, I hope that the Minister will explain how £26 million will deal with what is quite a big problem and that we look at the transition to the police stepping back to leave everybody else to deal with people who, at the point they meet them, are very ill and disturbed and who need help.
Finally, some of us argued strongly for a mental health commissioner. That was not because we wanted another commissioner—we have lots of commissioners for things already—but because we were trying to deal with a key issue. We do not have a system of mental health care or joined-up services. We have episodes of care, some of which are very good at the time but do not work together as a system. After the hours that we have sat in this place and looked at the various different bits of legislation in great detail, we do not understand why we lock up more people, year on year, and what the best use is of the resources available—they are not infinite—not only to deal with people who are experiencing real crises and trauma but to ensure that we use the best of what we have to put as much as we can into services that are also preventative.
It is a great privilege to be in this House. It is an enormous relief that we can do our work in great detail and largely away from the pressure of headlines, which I know people in the other place always feel whenever there is a failure. It may well be that, during the passage of the Bill, something in the media changes the national mood on this, but our job, privilege and responsibility is to think of the people who are in the worst possible place under this legislation and to do the best possible job that we can for them to make sure that we get the best out of this legislation.
Baroness Watkins of Tavistock (CB)
My Lords, it is a pleasure to follow the previous three speakers. I declare my interests as a non-executive member of the NHS England board and 45 years as a registered mental health nurse.
I warmly welcome the long-overdue reform of the Mental Health Act and congratulate the new Government on bringing it swiftly in their term. I appreciate the opportunity that the Minister has taken in holding discussions about the Bill prior to Second Reading and offering to consult further about potential amendments to strengthen and clarify particular sections. Modernising the 1983 legislation provides a real opportunity to reduce injustices in implementation and provide equitable support for people suffering from a mental health crisis, giving them more autonomy and choice and including a new right for service users to choose a nominated person to advocate for their interests.
First, I am pleased that the Bill aims to end the unnecessary detention of those with autism or learning disabilities, yet I share the concerns of the Royal College of Psychiatrists and other professional bodies that further clarity is needed around assessment and treatment. For many, the proposed 28-day limit for assessment may not be long enough to reach a comprehensive diagnosis, especially considering that those with autism often present with additional complexities. It may be difficult to admit, assess and support some patients within the time limit outlined in the Bill, risking recurrent use of overstretched A&E or admission and detention under Part III of the 1983 Act should there be safety concerns. The NHS Confederation drew on the example of New Zealand, where similar changes to mental health legislation saw a temporary increase in patients being sent
“to prison, left neglected in the community or admitted to forensic facilities as secure patients”.
Failing to allow for thorough assessment may worsen mental health care provision and further racial inequalities, as currently Part III detentions disproportionally affect black men.
To combat this, an emphasis on continuity of community care would cut the number of people admitted for an assessment, while ensuring that patients remain safe within the community, yet there is a chronic lack of community-based workers, with a third of all nursing vacancies being in mental health services. I therefore ask the Government to provide clarity on how they will ensure that those who, in the past, would have been detained for assessment and treatment will still be able to obtain a full diagnosis and the support that they deserve, preferably without hospital admission. Careful consideration of workforce planning in the community for social work and allied health professions, as well as psychiatrists, general practitioners and nurses, should form a significant part of the preparation for this Bill’s implementation; then patients and cares could more often be appropriately assessed, treated and cared for by both mental and physical health services, in community and primary care settings, thus avoiding admission.
The Bill offers an opportunity to improve support for those under the age of 18 who are admitted formally under the 1983 Act, yet it is estimated that 31% of under-18s are—thank goodness—admitted informally to hospital for assessment and treatment. I fully support the introduction of new statutory care and treatment plans, but I ask the Minister if they could be extended to those admitted informally, if it is a correct solution.
The Government are right to state that these plans will encourage patients to engage with treatment towards their discharge and beyond. Care and treatment early in a person’s life provides better outcomes than later intervention, so extending these plans to the significant number of informal patients aged under 18 could provide a solid foundation for later life. Additionally, ensuring the availability of quality community services would also reduce childhood detention. I therefore ask the Government to confirm their plans to encourage this early intervention via both the community and the care and treatment plans.
The Bill would be strengthened if it were to improve the environment for young patients. I will not repeat what has been so ably explained by the noble Earl, Lord Howe. However, we really ought to move to a statutory requirement that young people are not allowed to be kept in adult wards for treatment in crisis, or treated miles from home.
There must also be an exploration of the place of parental responsibility before the Bill is finalised. The introduction of a “nominated person” as well as “advance choice documents” are commendable steps to improve agency for those detained under the Mental Health Act. Some young people will choose not to include their parents for either of these. I therefore ask whether the Government can provide clarity as to how this will function with expectations of parental responsibility.
Healthcare professional bodies support the principle of ensuring that prisoners with severe mental health conditions are swiftly transferred to hospital, where they can receive proper treatment, but I have questions of practicality for the Government. What is the plan to ensure capacity in the in-patient sector? What happens to those who clearly cannot be properly treated in the in-patient sector, or who are a significant danger to others on the ward? As a former ward sister, I know that this is a real question from people working in those environments at the moment.
Will there be an assessment at the end of a patient’s treatment to determine whether they are recalled to prison or given a community treatment order if it is safe to do so and better for their mental health? I would welcome working with the Government to get clarity on this issue, particularly in relation to a code of practice.
As I have already said, continuity of care in the community will be essential to prevent unnecessary detention and to provide support to patients after detention. I therefore ask the Government to clarify the implementation timetable for the Bill in order to ensure that current staff have time to receive the development needed and that the necessary new staff are recruited.
I ask too whether there should be a research investigation into safe staffing ratios in the community. The Royal College of Nursing is calling for a maximum caseload for mental health community nurses to ensure that community treatment orders are conducted properly and that nurses can assist in preventing crises, but very little research into this ratio issue has been done outside in-patient facilities. It seems right that research and planning be done to ensure that the community can help fulfil the Bill’s admirable aims. A recent paper by King’s College refers to “frugal innovation” in healthcare. Investing properly in community care will reduce the costs overall.
I trust that the potential shortcomings of the Bill as it stands can be amended and/or resolved through the code of conduct to ensure that it is future-proofed and significantly enhances mental health service provision for patients, which is the aim of His Majesty’s Government, the vast majority of Members of this House and healthcare professionals themselves.
The Lord Bishop of London
My Lords, I am grateful to be able to participate in Second Reading of this important Bill. It is a privilege to follow the noble Baronesses, Lady Barker and Lady Watkins, who have a real breadth of experience in this field. I too welcome, along with many noble Lords, the reform of the Mental Health Act, which is long overdue.
The noble Earl, Lord Howe, highlighted the over-representation of minoritised communities detained under the Act but also placed on community treatment orders. Some groups are also more likely to be detained through contact with the criminal justice system or emergency departments. It is important to remember that we are speaking about these inequalities in the wider context of health inequalities; some groups present to health services far later, when their symptoms have worsened. The Royal College of Nursing notes in its briefing that mental health services are
“not seen as accessible to all communities”,
and that:
“Many black men have a first interaction with a service via the police during a crisis”.
Many of the organisations that have helpfully sent briefings ahead of the debate have acknowledged that the legislative actions available to address this issue are limited. The Minister highlighted the advanced choice directives, which are a welcome step towards this. As the Joint Committee on the Draft Mental Health Bill notes, this is important for those who have experienced trauma, disempowerment and discrimination.
Data collection has also been discussed during scrutiny of the Bill. Although data collection is improving, capturing more complex data on ethnicity is important when looking at health inequalities in this way. In much of the work I have done on health inequalities with the NHS and faith groups, ethno-religious identity is significant if communities are to be better understand at an ICB level or higher how to reduce inequalities.
It is also important that, in evaluating the changes to the Act, the Secretary of State has the appropriate data to do so. What steps are the Government are taking in the Bill or in other ways to mandate this kind of data collection, so that racial inequalities are monitored?
The Royal College of Speech and Language Therapists also emphasises that communication considerations are important to the Bill. In my experience, some faith communities find it very hard to discuss mental health, and that is made worse by the biases and discrimination they meet when they seek help. The patient and carer race equality framework is to be welcomed as the first ever anti-racism framework for mental health trusts and service providers. In order to assist in this, the Royal College of Nursing has recommended that mandatory training on equalities be given to all working under the Mental Health Act. As I often say in this place, faith literacy is an essential component of that.
Much of this is still about trust and culturally competent care. It is critical that services be accessible and effective for people with different traditions, cultures and faiths. Empowering patients to offer their data is as important as mandating that it be collected.
Many briefings note that the Bill will be effective in reducing racial discrimination and health inequalities only if there is investment in community services and other actions. Not everything we can and should do is medical; the involvement of the voluntary and community sector is also crucial.
I welcome the provisions in the Bill to restrict the long-term detention of autistic people and those with learning disabilities. I support the Joint Committee on the draft Bill’s recommendation of clearer duties for ICBs and local authorities to develop robust community services and social support.
I pay tribute to the work of the work of the noble Baroness, Lady Hollins, and the independent care and treatment review programme to expose the serious harm and trauma inflicted by the use of solitary confinement, detention and long-term segregation in mental health and specialist learning disability hospitals. I too support the comments made by the noble Earl, Lord Howe, with regard to young people.
The right reverent Prelate the Bishop of Gloucester is the lead Bishop on prisons for the Church of England, and she apologises for not being in her place. She and I commend the Government on bringing forward the long-overdue provisions to end the use of prisons and police cells as places of safety. The right reverend Prelate has told me that last year more than 300 people suffering mental health crises were taken not to a hospital but to a police station. According to the recent report from the Chief Inspector of Prisons, the average time to wait to transfer mentally ill patients from prisons to hospitals is 85 days—almost three months. We welcome the statutory time limit of 28 days, but I highlight, as other noble Lords have, that if this is actually to happen, it needs to be resourced. As the noble Baroness, Lady Watkins, highlighted, there is a question of resource not just on this point but for much of the Bill.
Shortages of mental health nurses and doctors impact on those detained under the Mental Health Act and in the community. The learning disability nursing workforce in the NHS has dropped by 44% since records began in 2009. Investment in the workforce will be key to the success of the Bill. Community services can be developed and resourced only as far as the NHS, local authorities and directors of adult social care are supported to do so. I welcome the Bill and look forward to following its passage and working on what is an extremely important reform.
Lord Touhig (Lab)
My Lords, I refer the House to my interest as a vice-president of the National Autistic Society, a role I share with my good and dear friend, the noble Baroness, Lady Browning.
I welcome the Bill. It has been a long time coming, and I passionately hope that it will allow us to end once and for all the myth that autism is a mental health condition. Autism is most definitely not a mental health condition, and our failure to address this has meant decades when autistic people have been wrongly incarcerated, often in appalling and degrading conditions, and robbed of their human rights. More than 2,000 autistic people and people with a learning disability are in mental health hospitals in England, a point made by the noble Earl, Lord Howe, in his opening remarks. The National Autistic Society tells us that 68% of these people are autistic.
Some 93% of autistic people and people with a learning disability in mental health hospitals are detained under the Mental Health Act 1983. The average length of stay is five years, but for a great number of autistic people the detention lasts for decades. Professor Sir Simon Wessely’s review of the Mental Health Act in 2018 found that the experience of detention was often damaging and traumatic. The Bill includes measures to improve care and support for autistic people, reducing reliance on hospital-based care. That certainly is good and is welcomed.
However, there are aspects of the Bill that concern me, and I have had a chance to discuss them with my noble friend the Minister. I have been fortunate to have had a number of fruitful meetings and discussions with a team from the Autism Centre of Excellence at Cambridge and, as a result, they and I share some concerns. First, the Government have said:
“For those with a learning disability or autistic people, the act will be amended to place a limit of 28 days for which they can be detained unless they have a co-occurring mental health condition”.
My noble friend mentioned this in her opening remarks. I stress again that autism is not a mental health condition, but given that eight in 10 autistic people experience mental health issues, without the right safeguards there must be concern that the new provisions could simply lead to a continuation of the current intolerable situation. I hope my noble friend, who kindly met with me recently to discuss these matters, will seek to assuage my fears on that point.
The Government have also said:
“Police and prison cells will also no longer be used to place people experiencing a mental health crisis … Instead, patients will be supported to access a suitable healthcare facility that will better support their needs”.
The right reverend Prelate referred to this in her remarks. The Lampard Inquiry was set up to look at more than 2,000 deaths of people in in-patient mental health facilities, specifically in Essex, and it is believed that many of those who died were autistic. I say to my noble friend that it would be wrong to assume that simply switching the location where autistic people are detained is going to achieve a much better way of protecting them.
The Government have also said the reforms will
“introduce statutory care and treatment plans”.
I share the Cambridge centre’s belief that every autistic person who needs support should have access to a statutory plan to enable them to get the help they need. It should not take an autistic person falling into crisis and being detained in a mental health hospital for such support to be provided, as is often the case today. Autistic people who are at risk of falling into crisis should have a similar right to such plans to prevent in-patient detention becoming a risk in the first place.
A focus on prevention would be in line with Wes Streeting’s idea of reforms of the National Health Service. It is recognised that the current system does, in fact, have a range of provisions, legal rights and safeguards that should, in theory, have reduced the number of people detained in in-patient mental health services. But published statistics show us that this has not happened, with thousands of people still inappropriately detained, so I ask my noble friend to consider these concerns as the Bill passes through the House in Committee and so on.
There is a danger of allowing, even unintentionally, the creation of a critical gap between what happens at a policy and legislative level and what happens on the ground. Without reckoning with this gap and setting up measures to ensure that what is said by government turns into real action on the ground, these reforms will not change the decades-long scandal of thousands of autistic people being detained inappropriately. To do this will require clear measurement, consistent and regular accountability and the necessary funding to enable the National Health Service and other agencies to deliver the hoped-for change that we need from this Bill.
Baroness Buscombe (Con)
My Lords, it gives me enormous pleasure to speak in this debate. For me, this legislation is above politics: it is a real opportunity for constructive opposition. I welcomed the call in July from the Secretary of State for Health, Wes Streeting MP, asking whether I would support the Bill and assist in its progress. Yes, there are some aspects of the Bill on which we on these Benches will wish to press the Government. However, our view is that it is overdue and critical for so many people who have felt misunderstood and suffered serious neglect for too long.
I feel lucky to have chaired the Joint Committee on the Draft Mental Health Bill. Everyone on the Committee apart from me had professional and practical expertise and experience and/or powerful personal experience and knowledge through friends and families. We received evidence from more than 50 organisations and many people who were service users, to whom we remain eternally grateful. We had many hours of strong debate and always managed to find a way through. Results sometimes involved compromise but were also consensual. I thank each and every member for their invaluable contributions, together with our advisers and the brilliant Alex Ruck Keene KC for his extraordinary drafting skills. I also thank the clerks and officials who worked skilfully against a very strict timetable.
I pay tribute to all our medical staff who work in this complex and, in many ways, challenging field of medicine. My sincere admiration for them, and the difficult choices and decisions that they must make, knows no bounds.
A key point for me—I speak as a lawyer—is that so much that directly affects the well-being of patients must be improved, not necessarily by legislation, which can hamper positive change, but through a step change in culture in order to genuinely value every individual and improve their life through choice, dignity, support and advocacy. The Bill seeks to address that, although it lacks a key tool: the use of technology and the drive for data, which I urge the Minister to consider.
The process of amending the current Act speaks volumes. Would that we could have torn up all the current Acts and started again with a fused approach to treating mental health, but we were persuaded that that would just take too long. It has taken too many years to get this far, and now change is urgent.
I have time to touch upon just a few of the many aspects of the Bill. It is right that the Government have agreed—here I say to the noble Baroness, Lady Barker, that we have good news—to embed in primary legislation what I call the Wessely principles: choice and autonomy, least restriction, therapeutic benefit, and the person as an individual. Each principle should be tested against the implementation of current proposals, future reform and change to ensure that patients as individuals remain the heart of the matter.
Least restraint is a key reason for reform, although in practice it is a difficult balance to strike. As the Wessely inquiry report makes clear, as a society we now benefit from a greater understanding of mental health. However, at the same time society has become much more risk-averse. Much of our debate centred around the need to address all avenues of least restraint, particularly given the current inequalities of outcomes, against the risk of unintended consequences for the protection of society and the therapeutic benefit of the patient.
To apply the principles, we need the data to track every patient and their outcomes. I remain appalled at the lack of information and communication across the NHS, which has a negative impact upon so many lives. Each time a person is moved, they are registered as a new patient. How much does that contribute to flawed data and poor outcomes? I urge the Minister to look at that.
A key missing element is technology, as I have said, and I do not mean some clunky, one-size-fits-all NHS-wide system. In short, we need to swiftly develop a national dataset to allow for real-time monitoring and accountability, evaluating variation and inequalities, understanding medium- and long-term trends and informing future policy decisions.
For choice, dignity and autonomy, we recommended a statutory right for patients who have been detained under the Mental Health Act to request an advance choice document to be drawn up and recorded in a way that is accessible digitally. There is no mention of digital in the Bill. Instead, it introduces duties on integrated care boards, NHS England and local health boards in Wales to make arrangements so that people at risk of detention are informed of their ability to make an ACD, a written statement, and be supported to make one.
Our report referenced the potential for creating ACDs via an app, similar in some ways to one already working for end-of-life palliative care, to support all patients. Simply put, it is a no-brainer and transformative, easily accessed by anyone, either on a mobile phone or even on a patient’s clothes, so that when that person is in crisis there is an instant critical guide to who that person is. That would greatly assist the police, if they are in attendance, and those in A&E. I am hopeful that this approach and other smart, cost-efficient moves will be in the code of practice.
The implementation of reform requires constant oversight. We recommended the appointment of an independent mental health commissioner with overarching responsibility to ensure consistency of delivery of the Government’s priorities for patients across England and Wales. This is not about the Government losing control; on the contrary, it is about an overarching small body with the ability to focus upon consistency across the whole sector, ideally using digitised national data to track and monitor the implementation of the reforms over a period of years, working with the associated NHS bodies to promote better outcomes. I ask the Minister: who else will do that?
Furthermore, we must address unacceptable racial disparities and inequalities, particularly among black men, who, as we have heard from my noble friend Lord Howe, are three and a half times more likely to be detained under the Mental Health Act and seven times more likely to be placed on a CTO. But how is that data collected and verified? Indeed, the facts could be worse. Our report was clear that better outcomes would be achieved and inequalities reduced if each health organisation introduced culturally appropriate advocacy and appointed a responsible person to collect relevant data and publish and oversee policies to address these inequalities. A mental health commissioner could ensure that that was done.
Mental health services currently operate in a static world. What happens when someone has a crisis far away from their local authority? We heard on a visit to SLaM in Lambeth that patients sometimes travel miles to Lambeth when on a downward spiral to receive, in their view, better treatment there than within their local authority. That is another reason to have accurate data.
Another critical area is children and young people. Issues highlighted in our report, including the role and profile of nominated persons, detention in adult wards and conflict with the Children Act, must be clarified and assurances given to families and their young. Investing in and building the right community support and action plan for people with learning disabilities and autism no longer detained under Section 3 is critical, as is monitoring the outcomes for those with learning disabilities and autism who may be at risk of being detained under the Mental Capacity Act or through the criminal justice system instead. This is an area where our committee had a strong debate, concerned about unintended consequences that might impact on the patient and/or society at large if the right protections, including safe spaces, were not in place. Are the Government content that they have achieved the right balance?
I feel I must record—because I want to be helpful to the Government—that our committee had one opportunity to put some of the crucial questions to, and test the opinions of, around 18 officials from the DHSC and the MoJ who had worked on the Bill for four years. That meeting was cut very short because one official said she had to collect her child from school, so all 18 walked out. That must not be allowed to happen again.
Priorities must be set for the implementation of the many proposals, and there needs to be a significant increase in capacity right across mental health services, all of which requires enormous investment. I wish the Government, particularly the noble Baroness, Lady Merron, well.
Baroness Murphy (CB)
My Lords, this is a long-overdue Bill, as many have said, and I hope it will progress through the House as quickly as possible. Quite why it has taken six years for Sir Simon Wessely’s report to be acted on, I am not sure, but I am particularly pleased that we have got advance directives in, even if in a slightly watered-down form.
However, there are some rather troubling changes that have been squeezed in recently for reasons that are difficult to understand, and I shall want to explore those in Committee. There are differences between the criteria for Parts 2 and 3 of the Bill, for example, which is bizarre, and I am scared that the changes in relation to learning difficulties and autism, in spite of all the good intentions, will be extremely difficult to implement. Throughout the Bill, there is an assumption that if you change the legislation, it happens, but we know very well that it does not—it takes years to implement—so I am concerned about that overall. Having said that, I will remain on the theme that the noble Baroness, Lady Barker, picked up. We will leave the rest until Committee, where we are going to have very detailed debates.
It is now 20 years since I came into this House with the certainty of the optimistic new girl that we would see a new mental health Bill that addressed the deeply flawed legislation that we had been living with since 1959, but I am pretty sure now that I shall leave the House having seen no fundamental change. I am ashamed that in England and Wales we are falling so far behind many other countries, when we used to be in the advance in devising mental health law that was fit for purpose. Scotland is 20 years ahead, as is Northern Ireland.
I was told back in 2017 by Simon Wessely and others that it would take 10 years to develop a unified mental health and capacity Bill. If we had started then, we would be almost there by now. We tinkered with the 1959 Act in order to produce the1983 Act. We added a new Mental Capacity Act in 2005 that cut across mental health legislation. Then we added the ludicrously undeliverable deprivation of liberty safeguards and added tiers of bureaucracy to an already overburdened system, all reducing the time for clinical and social care professionals to spend with patients as they had to spend more time filling in forms. The new Bill makes no attempt to address the complicated relationship between the 1983 and 2005 Acts or how they are meant to be used for individuals, and this is particularly difficult for patients with learning disability and mental disorders and also older people with dementia where people are tossing up which Bill is going to be used. It is clinically ridiculous.
I would have liked to see a Bill that addressed all mental health and capacity issues, putting capacity for decision-making at its heart, consistent with the United Nations Convention on the Rights of Persons with Disabilities, which we currently contravene and have done since its implementation by the UN in 2008. The human rights implications of the current Bill are profound. It does not address the fundamental rights of thousands of mentally ill people, primarily because of the absence of having decision-making capacity at its heart. We accept that patients with physical disorders can make decisions that may be seriously detrimental to their health or safety. In contrast to this, in mental health law capacity plays little or no role in decisions to initiate psychiatric treatment against a patient’s wishes. The criteria for the involuntary treatment of mental disorders fails to respect the autonomy of the patients. The key considerations are the presence of a mental disorder and risks to the patient’s health or safety. For persons with physical disorders, their personal values are given dominion. Those with mental disorders are not accorded this privilege in this Bill, even though we make such a meal of it in the Mental Capacity Act 2005. There is an underlying assumption that mental disorder necessarily entails an inability to make sound or rational judgments, but even among the most ill patients—those admitted to acute psychiatric wards—40% to 60% retain capacity.
People with mental disorders are unusual in being liable to detention, usually in hospital, because they are assessed as presenting a risk of harm to others before they have actually committed an offence. This constitutes a form of preventive detention that is selective. We spent some time in this Chamber a couple of weeks ago debating indeterminate sentences for people in prison thought to pose a continuing risk in the community. There was widespread agreement here that it was an iniquitous thing. And yet mental health law allows the detention of those with mental disorder on the basis of risk alone. How can that be justified? There is no evidence that risk is easier to assess in those with mental disorder or that violence is more predictable in this group, and it is an expression of the prejudicial stereotype that people with mental disorder are intrinsically dangerous, contrary to research evidence.
This does not mean that people’s dangerousness is unimportant. If it is reliably linked to an individual’s mental disorder, then, if the person lacks capacity, involuntary treatment may be justified, but if the patient has capacity, protection of the public becomes the sole interest. I do not deny there are problems with a capacity-based regime. Many people think you have to fudge the decision, but I would say it was because they do not understand the fundamental ways to assess capacity and the full influences on it.
One of the aims of this Bill is to reduce sections. The number of new sections, as we know, has rocketed again. Last year, there were over 52,000 sections, a further 5,000 or so placed on a community treatment order, and 140,00 people on mental capacity deprivation of liberty safeguards. If the aim of the new Act is to reduce detentions, I cannot see how. The discharge rate from tribunals has reduced from 25% in the mid-1980s to about 6% today. How is it going to happen exactly under this legislation?
I do not see how the overrepresentation of black people in the detained population is to be addressed by this Bill. We need a completely different new way of assessing people and allowing people to get access to services that are sensitive to their needs, providing something that they want to access. I cannot think that there is anything new in this Bill which reflects new thinking that is going on about how you encourage people to access services when they first begin to feel ill.
The Bill has nothing to say about restraint and seclusion. It does not address the hundreds of people in the prison system and their non-consensual treatment except to speed up those that are suitable for transfer. The majority of the mentally unwell will never even be considered for transfer, but they have terrible problems which impact on the prison system tremendously.
Finally, it is now 14 years since the Mental Health Act Commission was abolished and replaced first with the mental health commissioner and now by the totally inadequate low-profile CQC, which has no legally qualified members and no mental health representation at executive board level. Whereas the former chair and vice-chair of the commission had direct access to the Secretary of State for Health, as I am sure the noble Baroness, Lady Bottomley, will remember—she got tired of seeing us, I should think—mental health does not now appear to have the same direct influence. Perhaps it is not surprising that mental health appears only on the government agenda when there is some crisis that has been brewing for years or, as now, after meandering for years through our scrutiny and committee systems.
I have had my say. I am not going to raise this issue again. I felt I had to say it once. I will throw myself into Committee with enthusiasm and hope we can get this Bill through, but I do hope that one day we will get the mental health and capacity legislation that we really need.
Baroness May of Maidenhead (Con)
My Lords, it is a great pleasure to be able to contribute to the Second Reading of this very important Bill, albeit, as other speakers have already said, a Bill that has been too long coming. I wholeheartedly welcome this Bill and I thank the Government and commend them for bringing it forward so quickly in their term of office. I also thank the noble Baroness the Minister and the Secretary of State for the meeting that they held with me earlier today. Like others, I also want to look back and thank Professor Sir Simon Wessely and his team—including, not least, the noble Baroness, Lady Neuberger—for the invaluable work that they did that has led to the Bill before this House today. I want to say a particular thank you to those with lived experience who were willing to come forward and inform and advise the review panel, but also the pre-legislative scrutiny work and at other stages too, so that the Bill could be based on real experience, not just on what politicians and, dare I say it, the civil servants thought would be the right thing to do. So I welcome this Bill.
When in October 2017 Sir Simon Wessely was commissioned to undertake the review, there were a number of reasons that led to that. The first was the one that the Minister has already referred to: the Mental Health Act 1983, which was in place for over 30 years, had had some amendments subsequently but was felt to be out of date. Society and clinical treatments had moved on, so there was a need to look at it. But, for me, there was a more fundamental issue, which was the fact that so many people who found themselves in mental health crisis felt that, somehow at those points of crisis, they were people to whom things were done, to whom society did things, rather than people who were able to be part of and involved in that decision-making—they lost their human dignity in the processes that they went through. There were also issues about family members who were concerned that they were not listened to, when they felt that they knew when people were coming to points of crisis, or family members who felt that they were shut out from the discussions about their relative who was potentially at a point of crisis.
Then there was the overuse of detention. Reference has already been made, and I am sure will be made by others in this debate, to the racial disparity in the use of detention, a matter which should concern us all. There was also the question of the use of detention for those with autism and learning disabilities. All those issues underpinned the reason for looking at reviewing the Mental Health Act 1983.
The first point has been that issue about the loss of dignity and the way in which people in mental health crisis are treated. I hope that will be dealt with by those very first principles that appear in Clause 1. I draw particular attention to the fourth of those:
“The person as an individual”.
Under “Matters to be addressed”, it says:
“treating patients with dignity and respect and considering their attributes and past experiences”,
although I accept, as the noble Baroness, Lady Murphy, just said, that it is not enough simply to put it on a page of legislation. For that to be enacted requires changes of culture and attitude from all those who deal with people in mental health crisis.
Part of this sense, though, of people being able to feel that they are making decisions for themselves is the advance choice document enshrined in this legislation. I am sure that the Government will want to think carefully about the matters that it might encompass, and about its interaction with potential future legislation.
I want to pick up the issue of the nominated person. I mentioned families feeling that they are sometimes cut out but of course, as we know, sometimes for the individual with mental illness or mental health problems the nearest relative—that family member—might not be the most appropriate person to be their nominated individual. That individual may actually be somebody with whom—how can I put it?—the tensions can lead to increased difficulties for the person with mental illness, rather than reducing them. That ability to nominate somebody else as the person who someone wants to be there is critical. The noble Baroness, Lady Watkins, referred to this in relation to children but I think that, in general, it could create some tensions with family members who feel that it is their right to be that person alongside the individual in mental health crisis. Having said that, I believe that the nominated person point in the Bill is absolutely appropriate.
I want to focus also on the questions of detention. I have referenced how we need to look carefully at the inappropriate racial disparity in detention, but I also want to comment on the police issue. I am pleased to see the outlawing in the Bill of the use of police cells and prisons as first places of safety. This is of course the culmination of work in progress. There was voluntary work with the police and the health service, in 2012 and subsequently, to encourage and help them to ensure that the first person who someone in mental health crisis saw was not a police officer, and that they were not taken to a police cell as a place of safety. We then ensured that work in the Policing and Crime Act 2017, so that police cells could not be used as places of safety for those under the age of 18. The Bill takes it that bit further and it is absolutely right that it does—and right to do it for the individual who is in mental health crisis.
It is also right to do that for the police, because one issue that police officers themselves constantly made reference to me about was their fear and concern about being expected to deal with somebody who was in mental health crisis, when they had no training and no capability of knowing what to do in those circumstances. Of course, it is bad for the individual too if they are faced with somebody who has no actual understanding of what their condition is or how they should be dealt with.
Perhaps I may gently say to the Minister that in 2015 we put £15 million into providing alternative places of safety and in 2017 the Government put £30 million into providing them. This Government are now putting £26 million into providing those alternative places of safety. It is easier to say this from this side of the House, but the Government might wish to consider those figures, if I can put it like that. I also suggest to the Government that they consider alternative places of safety as not necessarily being a healthcare facility. Many places in the third sector are able to provide those facilities and the Government should look at that as well.
Finally, we also need those facilities to try to ensure that people are less likely to get to the point of crisis. If they are less likely to get to that point, they are also less likely to turn up at A&E because they are in crisis. That would be a win-win for the individual concerned, for the Government and for the health service.
Overall, I welcome the Bill. There are some very good provisions in it. As we have heard, it will be subject to detailed scrutiny in this House but it is no bad thing—I can say this now—that it started in this House. I welcome it and look forward to its passage.
Baroness Hollins (CB)
My Lords, it is a pleasure to follow the noble Baroness. I remind the House that I worked clinically as a psychiatrist for about 35 years and had been a consultant for two years by the time that the 1983 Act was introduced. I argued then, as now, that mental handicap, as it was called, had no place in legislation—although others disagreed. Profound changes in societal attitudes, alongside advancements in the understanding and treatment of mental illness, have occurred during my career. I agree with the noble Baroness, Lady Barker, and my noble friend Lady Murphy that fusion legislation really should have been considered.
There is no minimum age limit in the Mental Health Act, meaning that its provisions apply to children and young people as well as adults. The Joint Committee, of which I was a member, recognised their unique needs, saying that this is
“a crucial opportunity for the Government to strengthen the rights and protections for children and young people”.
We must never forget that the mental health of babies, children and young people is fundamental to the mental health of the adult population, and that we cannot legislate for the treatment of serious mental disorder without taking mental health seriously from the very beginning of each person’s life.
Psychiatry’s past has included some harmful and forced interventions, rather than the preventive approaches, early intervention and evidence-based treatments that are so needed. The Bill aims to safeguard dignity and autonomy, and ensure best practices for all, including people with learning disabilities and autistic people. A major current concern for me is that there are nearly 2,000 people with a learning disability and autistic people in psychiatric hospitals. Usually, that is because of a lack of individually tailored support and housing—they have an average stay of five years—and because of the shortage of effective treatment options in the community and lack of training for the wider mental health workforce.
My Heart Breaks, the report of a review that I chaired and which was published by the Government last year, shed light on the harrowing realities faced by many of the 100 or so of those 2,000 in hospital who are detained in long-term segregation at any one time. The systemic failures we found reflected a troubling overreliance on detention as a substitute for meaningful care, despite such detentions often lacking therapeutic goals, a pattern that unfortunately affects other patient groups as well, including those with personality disorders.
Historically, policy and practice have overlooked complex intersectional vulnerabilities, including learning disability, autism, gender, race, poverty and physical health issues. Marginalised groups, especially people from racialised communities, are detained more often. Trauma histories may be compounded by the excessive use of medication and restrictive practices which contain people, with an eye to safety, but disempower and just do not support recovery. People need better-adapted psychological therapies but are less likely to access them, and poorly co-ordinated discharge processes further trap individuals in a dysfunctional system. This violates people’s human rights and ethical care standards.
As a long-time advocate for people with learning disabilities and autistic people, for me, one of the Bill’s most significant reforms is the removal of learning disability and autism as stand-alone grounds for detention under Section 3, part 2. This change is complemented by new duties on health and care bodies to provide the community-based support and therapeutic approaches needed to prevent unnecessary detentions. But legislation alone will not provide better care; the right people in the right place with the right skills are needed. So the Bill introduces mandatory care, education and treatment reviews, which aim to create personalised care plans and facilitate timely discharges. Additionally, dynamic support registers are intended to track those at risk of crisis, allowing for early intervention before issues escalate. Advance choice documents could also be valuable for choice, safety and care.
The National Autistic Society, Mencap and several other charities have welcomed the Mental Health Bill as a step toward safeguarding the rights of individuals with learning disabilities and autistic people. All stress the need for robust support systems, including housing and social care. These are essential to prevent unnecessary admissions, emphasising that the Bill’s success depends on effective implementation, accountability and substantial investment in community services. They also request a new action plan to replace the Building the Right Support action plan. This is particularly urgent, given that targets to reduce in-patient numbers of people with a learning disability and autistic people have been repeatedly missed over the last decade, and only one in five integrated care systems have currently met the March 2024 target for reduction of in-patient numbers.
Can the Minister confirm whether a plan such as that being requested will indeed be co-produced and implemented with the help of people with lived experience, families, campaigners and relevant bodies, alongside the implementation of this legislation? Both the Royal College of Psychiatrists and the BPS have cautioned against removing autism and learning disabilities as stand-alone criteria unless there are substantial improvements, warning that this could divert unsupported individuals into emergency services or the criminal justice system. Easy to say, better not to do it—but we must use this as a lever to change the culture of care and support for these groups of people.
We do not want to risk criminalising people’s mental health needs, and we do not want to disproportionately impact already marginalised groups. I ask the Minister, what assurances can Government provide to ensure adequate funding to deliver minimum safe services in the community, such as early prevention measures, rapid response teams, crash pads and effective therapeutic approaches in the community? Indeed, could these alternatives be mandated?
Compulsory detention and treatment of individuals with personality disorders under Part 2 of the Mental Health Act is another issue. Personality disorders stem from relational difficulties and cannot be effectively treated in restrictive in-patient settings. Research shows that admissions without structured, evidence-based psychological interventions provide no benefits and can indeed worsen symptoms.
Why is Section 117 aftercare limited to Section 3? Social and health care should be integrated for all patients based on need, not the section they were detained under. For example, a financial crisis causing suicidal thoughts in a farmer might lead to a Section 2, when a social prescription might have been effective. After assessment, they will return to the same situation without appropriate support, such as legal or financial advice to resolve the crisis.
The new Mental Health Bill gives us an opportunity to address the stigma that shaped policy in the 1980s and create a legal framework which keeps pace with scientific advancements. We need to reframe our focus from risk management to supporting accessible, evidence-based community interventions, ensuring that care aligns with ethical and therapeutic principles and prioritises a rights-based, person-centred approach.
Our actions now will shape mental health care for the 21st century. Let us enact compassionate and progressive reforms that future generations will respect.
Lord Bradley (Lab)
My Lords, it is always a pleasure to follow the noble Baroness, Lady Hollins, with her expertise in this area. I declare my interests as listed in the register and am pleased to make a short contribution to this debate. It has been some time coming.
Following the excellent review of the Mental Health Act, initiated by the noble Baroness, Lady May, Sir Simon Wesley produced his report in 2018 and a draft Bill was published by the last Government, as we have heard. This was followed by detailed scrutiny by the Joint Committee of both Houses, which I was pleased to be a member of and which was so admirably chaired by the noble Baroness, Lady Buscombe. It was disappointing at that point that the deliberations were paused, but I was delighted that the new Government, following a manifesto commitment, immediately introduced this Bill, which everyone has welcomed today.
In the time available I will focus on only a few areas, the first of which is the proposed changes under Part 3 of the Bill—essentially, the interface between mental health and the criminal justice system. I am delighted that Clause 35 proposes a statutory time limit of 28 days for the transfer of acutely mentally ill patients held in prison to appropriate hospital provision. It is now well recognised that the prison environment and care capacity is detrimental not only to the prisoner but to other prisoners and the staff who care for them. I made a similar recommendation in my independent report to government in 2009, nearly 16 years ago—albeit with the perhaps unrealistic time limit of a 14-day transfer. Clearly, you have to be patient and persistent to achieve legislative change.
Secondly, on Clause 46 and the removal of police stations and prisons as places of safety, I made related recommendations back in 2009, and I am obviously now pleased that there is overwhelming recognition that both facilities are not appropriate as places of safety. Clearly, detailed examination of these proposals will be required in Committee to ensure that the wording delivers their intention. For example, when will the clock start on the 28-day limit?
Thirdly, for this to be effective, investment in alternative community-based healthcare provision will be required for places of safety, as will investment in liaison diversion services, to ensure that only those who need to obtain a place of safety. Otherwise, as we have heard, A&E departments will continue to be the default position, at huge cost to the NHS and to the police service. We also need additional acute mental health beds in every local area to ensure timely transfers and to make the legislative changes a reality.
There is also concern, well articulated by the Children & Young People’s Mental Health Coalition, that children and young people are still inappropriately placed in settings outside their local area, and on adult wards. It is imperative that the Bill strengthens safeguards against this and recognises the Joint Committee’s recommendation for stronger procedural requirements where such inappropriate placements are considered, including a requirement that such a placement is demonstrably in the child’s best interest.
There are many positive elements of the Bill, as the Minister clearly outlined in opening this debate, including improving the patient experience, improving patient choice and autonomy, and limiting the detention of people with learning disability and autistic people without qualifying co-recurring mental health conditions—all of which and much else, as we have heard, will be carefully considered in Committee.
However, I believe we need further debate on where the principles outlined by Simon Wessely are placed in the Bill. I am particularly disappointed that the Government have not currently accepted the recommendation to establish the role of a mental health commissioner and seemed silent on the issue when the Bill was introduced. As we have heard, the Joint Committee recommended that this post be statutorily positioned and that the mental health commissioner should be created with a number of roles, which I would like to briefly elaborate on.
The mental health commissioner should be a voice at a national level, promoting the interests of those who are detained and who are likely to be detained under the Mental Health Act, as well as the interests of their families and carers, raising awareness of their needs and challenging stigma and stereotypes. They should work in conjunction with the Care Quality Commission and other bodies to make recommendations on further reforming mental health law in the direction of more rights-led and fused legislation, such as we have heard on the Mental Capacity Act.
Critically, the commissioner should be a mechanism for tracking the implementation of the reforms in and associated with this Bill and other legal changes, essentially and particularly with the inclusion of the provision of data to understand how the Bill is operating. We saw the role of the commissioner as primarily to act as a watchdog to oversee the direction of travel for the key reforms in the Mental Health Act and mental health policy generally, overarching the whole government system. This has been supported by many organisations working in the mental health field, including the Centre for Mental Health, of which I am an ambassador. The centre added that, in addition to overseeing the reforms to the Mental Health Act, a commissioner could play a wide-ranging strategic role across all government departments.
Finally, I will say a few further words about resourcing and implementation, which will be crucial to the success of this legislation. Again, the Joint Committee recommended that the Government publish a comprehensive implementation and workforce plan alongside the Bill with key milestones detailing the implementation of the Bill and, crucially, how they link to milestones in the implementation of the NHS 10-year plan and other government initiatives. These should include milestones on workforce development, not only for mental health staff but allied health professionals, such as speech and language therapists. I declare my interest as honorary vice-president of the Royal College of Speech and Language Therapists.
The plan should also include milestones on training, advocacy and community care capacity, as well as on numbers of detentions, length of stay and, critically, reducing racial and ethnic inequality. There should also be a statutory duty to report annually to Parliament on the progress against these milestones during the implementation period. Disappointingly, unless I have misunderstood the Explanatory Notes to the Bill, the Government have so far offered only a financial assessment over a 20-year period, which is not at all coherent with the NHS 10-year plan.
However, in conclusion, I am very pleased that we are debating this incredibly important Bill now and in the coming weeks and months to try to ensure that we go a long way to producing a progressive Mental Health Act which is fit for 2025 and years beyond. I look forward to the Minister’s response at the end of the debate.
Lord Scriven (LD)
My Lords, it is a pleasure to follow the noble Lord, Lord Bradley, who was the MP for the constituency I lived in when I was a student. In those days, I campaigned against him, but, from listening to his speech today, I am sure that we will campaign together in Committee on some of the reforms that may be required in the Bill.
This Bill is a welcome direction of travel for mental health legislation in the United Kingdom, but it is only an extra stop. As other noble Lords have said, sometimes we have to look at the bus we are on—the underlying legislation. That bus was built when I was 17 years old, if we go back to the 1983 legislation, and it had its last MOT 17 years ago, in terms of its amendments. I believe that, although these measures are welcome, there is still a fundamental issue in terms of the basis of what we are traveling on. I understand the problems with that.
The questions we are really asking in this Bill are quite limited in the sense of the balance between individual freedoms and public protection when it comes to the detention of individuals. Because we look at such legislation infrequently, we must do our best in Committee to ensure that the balance is at its best and that, wherever we can, we take a person-centred, rights-based approach to this legislation. Having said that, there are some pleasing points in the Bill, including the tightening of the criteria for the detention and compulsory treatment of individuals. It is welcome that the four key principles are mentioned but it is a shame that they are not on the face of the Bill and are down as guidance only. It is important that those of us who really support the principles fight for them to be on the face of the Bill in Committee.
The advance choice documents are a welcome provision but, as many noble Lords have said, they need to be fully accessible 24 hours a day, 365 days a year to those who care for people who have given an advance choice document. I question why they are only for people aged 18 and over. If we are looking at Gillick competence, there are issues around those who are younger, who should be able to provide an advance choice document. I worry that they are not a right or a duty but are only to be given as a consideration.
I welcome the right to a nominated trusted individual but many people who have been involved in healthcare will know that it is not just about having that person as a right; it is about the way in which professionals listen to them and carry out the advocacy that they provide. I am not sure, as we start with this Bill, that the balance is correct; I believe that certain issues will have to be addressed in Committee.
I have also looked at the potential implementation of the Bill. It is always good to start with the impact assessment. It has in it some quite startling issues that I think we will want to look at in Committee. For example, community treatment orders are not meant to change for at least another seven years, but the implementation start is in seven years. The existing CTO regime will last for another seven years and, from the Government’s impact assessment, it looks as though the new regime will start in seven years at the earliest.
I will come back to people with learning difficulties and autism in a second, but the implementation of the measures for them not to be held for more than 28 days and for other provision in the community to have to be available will be in three years’ time, according to the impact assessment. However, there is no money in the next two years to start to provide for those community facilities. It is as though they will come on stream the second the implementation date is reached; I question the Government’s planning on that and whether it is a realistic adaptation for people with learning difficulties and autism.
My passion and focus in Committee will probably be learning disabilities and autism, because they are personal to me. I have close family members who are loving and warm but very misunderstood by those who do not have a close relationship with them. It is scandalous that, in 2024, having those labels attached to you means that you could be detained under the Mental Health Act for more than 28 days. I welcome the fact that the Bill’s provisions will move away from Section 3 and towards Section 2 detention, but I worry that it will not stop detention of people with learning disabilities or autism. For example, DoLS will be used, because these people are misunderstood. The legislation in itself will not change what happens to them. Individuals who are seen not as a threat but as difficult will be detained. As other noble Lords have said, fused legislation needs to be used to ensure that those individuals are not detained using different pieces of legislation.
As other noble Lords have said, it is also worrying that people with learning disabilities or autism who are under a Section 2 detention or detained under the Mental Capacity Act will not have access to Section 117 community facilities. It is quite fascinating that the very things under Section 117 that need to be in place to ensure that these people are not detained are the very facilities that they do not have a statutory right to. That needs to be looked at in this legislation.
There are many things to welcome, but many further questions need to be asked and drawn out, particularly regarding some of the contradictions in different parts of the legislative process on mental health provision within the UK and around the rights-based approach, which the Government seem not to have in place. We will want to explore that as we go forward.
Lord Meston (CB)
My Lords, consideration of this Bill has been greatly assisted by the thorough scrutiny and analysis undertaken by the Joint Committee on the draft Bill and its compelling report, published in January 2023. Parliament will now need to look with care at its recommendations, including those not incorporated into the Bill as now presented, and the justifications for any omission.
The first question tackled in that report was whether what is now required is fundamental reforming legislation rather than another amending statute. If I may follow on from the noble Lord, Lord Scriven, the bus was not built in 1983; its chassis was built in 1959, and we are still dealing with it. The report states:
“The Mental Health Act 1983 is … forty years old. It has been amended multiple times over those years, making it hard to use even for experienced professionals. It is overly complex, especially where it interacts with the Mental Capacity Act 2005”.
For example, the committee noted:
“Attempts to both protect and empower children in these settings have resulted in a complex mixture of statute law and case law alongside the MHA that … makes assessing a child’s rights to access certain safeguards in this draft Bill complex and obscure”.
For essentially good and pragmatic reasons, as the noble Baroness, Lady Buscombe, explained, the Joint Committee did not wish to introduce further delay or uncertainty, so favoured the form of the Bill considered by it, which is now before Parliament. However, for the courts, tribunals, lawyers and all the other consumers of the legislation, the question will remain, as per the quote in the invaluable Mental Health Act Manual:
“If the Mental Health Act is to be modernised, is it appropriate to base the modernisation on a legislative structure that was established over 60 years ago by the Mental Health Act 1959? The process of bolting on multiple miscellaneous amendments to that structure over the years has resulted in an Act which is overly complex, confusing, and expensive to operate”.
Inevitably, those problems will be exacerbated when this Bill adds further amendments to the 1983 Act. It is therefore to be hoped that the Government will see the Bill, as the Joint Committee put it, not as
“the end—or even a pause—in the process of reform of mental health legislation”.
Meanwhile, the code of practice under the 1983 Act will need, and I understand will now receive, further revision and updating once the Bill is enacted to cover the stronger requirements of the new legislation and provide clear guidance to meet the needs of patients and for all those who operate the changes.
I turn to some of the Bill’s detail. It is certainly welcome that it recognises the real problem that too many autistic people and others with learning difficulties have been detained inappropriately and for far too long. It is also welcome that the Bill removes police stations from the definition of a place of safety in the 1983 Act. Inevitably, the police will continue to have to deal with disturbed and distressed people suffering a chronic or temporary mental health crisis, but these are people who should not be in police stations any longer than absolutely necessary, particularly if expert assessment or treatment are required.
It is to be hoped that the changes will relieve the police of some of the difficult decisions as to risk required under the existing code of practice, but, as others have said, these changes will not work without sufficient community alternatives. As the noble Earl said, it will not be helpful if they simply pass the problem on to an A&E department. I do not want to get anecdotal, but I had a brief admission to A&E. It was, happily, not long lasting, but it was extraordinary to watch the staff in that hospital cope with a very determined and disturbed man. Unfortunately, I did not see the end of that because, luckily, I was released. Nevertheless, it is a problem that needs to be thought about hard.
By contrast with the ethos when I started as a lawyer, all courts now strive to ensure that people are not defined by their mental health problems, even if it is not always possible to prevent those with mental health problems entering the criminal justice system or to divert them from it once they are in it. Professionals in that system need help to deal with these people and their problems. Therefore, the improved provisions for transfer of prisoners to hospital, including those detained under the Immigration Act, should be valuable, but will always depend on compliance with the code of practice, which requires the need for in-patient treatment for a prisoner to be identified and acted on quickly.
The same problems apply when the criminal courts consider sentencing options. The courts depend on the Probation Service and legal representatives to draw attention to the possible need for psychiatric reports and detention. Having sat as a judge in the Crown Court, I can convey the real exasperation of the judiciary when necessary reports are not available or when suitable hospital places cannot be found without further delay and hearings in an overloaded court system.
I turn to a different topic, which has been referred to. The Bill will implement recommendations about replacing the existing “nearest relative” with “the nominated person”, under the principle of patient choice and autonomy. I have some concerns about the selection and replacement of nominated persons, and the complicated provisions within the Bill. Now is perhaps not the time for that, and I will leave it to Committee, but it needs to be looked at again. In particular, there is a need to focus on the consultation, at the very least, and recognition of the legitimate interests of parents and others with parental responsibility.
On this topic, I question—although, again, I leave this to Committee—the continued use of the county court for applications to terminate appointments of nominated persons. The use of the county court is left over from the 1959 Act, at a time when there was neither a separate family court nor a Court of Protection. I suggest that these would now be better equipped to deal with these applications.
There are further points focusing on the needs of children, one of which has already been touched on. It was highlighted by Dr Camilla Parker in her evidence and will strike a chord with many practitioners. It concerns the overlapping factors governing capacity and competence, and the differing processes for assessment. Dr Parker observed that, even after 40 years, we do not have “clear and consistent criteria” for determining whether a child is competent to make a decision. It would be helpful to understand the Government’s current intention, particularly if formulating any statutory tests is not intended.
More fundamentally important is the location for the placement of children. This overlaps with the real problem, which has been highlighted repeatedly by the judiciary, the Nuffield Family Justice Observatory and the Children’s Commissioner, of the use of deprivation of liberty orders, or DoLS, and placing children in unregistered settings—not just adult wards but unsuitable, unregistered settings. Again, I will return to this in Committee.
Baroness Browning (Con)
My Lords, I declare an interest as a vice-president of the National Autistic Society, with the noble Lord, Lord Touhig, and as having some responsibility for family members on the autistic spectrum.
Like the noble Baroness, Lady Barker, I am a veteran of the Mental Health Act 2007 and the Mental Capacity Act. When I came to this place, I was pleased to be involved in the review of the Mental Capacity Act. This and other Bills of this nature would merit looking at, to see what happens after we legislate. My concerns with the 2007 Act were, primarily, community treatment orders. Looking at the Bill, I see that these are to be altered, but I still share the view of the charity Mind, which would like to see them abolished altogether. I hope that, as we go through Committee, we can make substantial changes to what we have in front of us.
I was also concerned about the deprivation of liberty generally and the situation for autistic people in relation to mental health services. I am still concerned, but I welcome the proposed changes for people with autism and learning disabilities, making it illegal to detain an autistic person or a person with a learning disability unless they have a coexisting mental health condition. Presently, of the 1,385 autistic people detained in mental health facilities, 93% are detained under the Mental Health Act—they are not voluntary patients.
I make no apology for making the case for autism being a special condition that needs to be treated differently to other conditions. I say that because, apart from the Mental Health Act, autism is the only medical condition that has its own Act of Parliament. That tells you that something about it is different from other conditions. In 2009, both Houses of Parliament passed a short but important Act, which was introduced by my friend the late right honourable Cheryl Gillan MP.
So what is it about autism that makes it so different that we should have special regard to it as the Bill progresses? I will first look at how autistic people come into contact with psychiatric services generally. Autism is, of course, a spectrum, so we are talking about a wide range of conditions. There is the old adage that, if you have met one autistic person, well, you have met one autistic person. Although we may look at commonalities among this whole group of people, they are all individuals and should be treated as individuals.
Autistic people come into contact with psychiatrists, although a wider range of people diagnose autism now. I give apologies immediately to the eminent psychiatrists in this Chamber, but, over 32 years in this House—and having taken up many cases and I hope assisted several Members with their casework—I have seen what can often happen if a psychiatrist does not understand autism or, even worse, receives a patient with an autism diagnosis from another psychiatrist but will not accept that diagnosis. That is shocking. So often, misdiagnosis can occur when somebody is admitted to a mental health institution but the psychiatrist will not accept that diagnosis and starts to rediagnose somebody, giving them medicated treatment that clearly does not work. I have seen the results of that.
I particularly remember—it is fixed in my mind—a young man who was a very good artist and whose autism diagnosis was overridden when he was admitted. The diagnosis was, “No, no—this is schizophrenia”. Interestingly, that is a common mistake. As each medication was applied and did not work, that young man’s ability to hold a paintbrush and produce the sort of work he produced before was completely diminished. So autistic people come into contact with psychiatrists, and my point about psychiatrists is that they must have specific autism training. There is a huge lack of psychiatrists generally but particularly psychiatrists with that type of training.
As the noble Lord, Lord Touhig, rightly said, although autism itself is not a mental health condition, people with autism can of course have a mental health condition or a learning disability. But, out in the community, if an autistic person needs medication of one sort or another—I am talking not about drugs that are used for psychosis but drugs to help control anxiety, which is a natural side-effect of autism—accessing the correct drugs through a psychiatrist is impossible in some parts of the country. It is very much a postcode lottery, because psychologists—whom autistic people are very often referred to—cannot prescribe. So, if there is no local psychiatrist whom a GP can refer you to, your only option is very often to pay to see the right person privately. If any of us had a cardiological condition, we would not expect to have to pay for a cardiologist to treat us. I believe the Bill should address access to appropriate—that word is used so often—care from trained and qualified people, whether psychiatrists, CPNs or whoever.
The other thing about autistic people that must be taken into account is that so many of them have sensory side-effects to their autism. There is a vast variety of side-effects, which perhaps may not seem important to people who do not experience them. They can be anything from lighting to noise, sound and the proximity of other people to them. These things need to be taken into account, like the things that have been said already: what a horror it is for any of us to be admitted to A&E now, but, frankly, it can produce very serious results for an autistic person.
I would like this Bill to produce the right training and the right services in the community. For autistic people, the downward spiral into very severe anxiety is there when community services are not provided. When I talk about community services, I am not always talking about something that will cost a fortune; it is actually the low-hanging fruit of low-cost measures. Sometimes it can be as simple as something that provides somebody—a child or an adult—with a friend: somebody with whom they can form a relationship. That does not cost a fortune. However, when money is tight—and we know money is tight—those are the first sorts of services that get taken away, and the downward spiral of an autistic person when these services are no longer provided or are not provided in the first place is what results in them needing to come into contact with the more serious mental health services that this Bill will address.
The noble Baroness, Lady Watkins, mentioned parental responsibility, and in this debate we have not yet mentioned lasting powers of attorney. These are powers for people who are able to sign them when they have capacity, which may well be a very useful thing when people are denied access to their relatives or carers. I hope we will include that in the Bill.
Baroness Fox of Buckley (Non-Afl)
My Lords, it is somewhat humbling and not a little intimidating to follow so many insightful speeches from those at the heart of the issue. For me, as a bit of an amateur outsider, I broadly welcome the Bill, with some reservations that I will pursue in Committee.
For Second Reading, I suggest that we should always remember the cultural and political context of our deliberations and indeed definitions—I will come back to that. We also need to remember the lessons of history: locking people up for mental illness has been mired in ethical and political scandal over many years. We all can cite the former Soviet Union, where political dissidents were labelled mentally ill, but even in democracies it was not until 1973 that the American Psychiatric Association voted to declassify homosexuality as a mental disorder—and let us not forget those unmarried mothers who were sectioned in the 20th century.
However, even with this misuse of psychiatric power, it is still possible to be a defender of liberty—such as myself, I hope—and yet acknowledge the need for some people to have their liberty restricted because of their mental health. Many years ago, when I worked for Mind, this was a very polarising debate; but I argued then, and continue to believe, that when someone is severely psychotic, manic or out of their mind, psychiatric coercion is not a violation of individual autonomy. That is because the subject at that point in time—“at that point in time” is key—is not autonomous in any moral sense.
However, is release not different? And that brings me to the issue of community treatment orders. Along with others, I too would like them to be abolished. The general problem of CTOs was well explained by Dr Ken McLaughlin is his pamphlet Escaping the Straitjacket of Mental Health. In it, he makes the point that, while the case for compulsion can be justified at the point of hospital admission, when the patient is likely to be in an acutely psychotic state, can compulsion be justified at the time of hospital discharge when the patient should have mental capacity restored? Prior to 2007 and CTOs, on leaving hospital, an ex-patient regained their full rights of citizenship, including the right to refuse medical treatment. The problem of being released with a CTO is that you return to the community as neither a patient nor a citizen. This hybrid state is troubling in terms of compromising civil liberties.
I tend to agree with the noble Earl, Lord Howe, and others: at the very least I question why the Bill will allow indefinite CTOs to occur. I agree with the Centre for Mental Health’s call for the safeguard of time limits, and then CTOs could be extended only if there was proof of proportionality for the individuals concerned.
The question of indefinite “coercive orders” inevitably reminds us of the plight of the almost 3,000 prisoners held indefinitely behind prison bars under the abolished and discredited IPP sentence. Many of these people are incarcerated in prisons precisely because their mental health has deteriorated as they have been refused release, even on licence; a sort of unacknowledged section is happening here. What is more, shockingly, a wide range of experts now blame this very sentencing regime as the cause of IPP prisoners’ mental distress. The hopelessness—“psychological terror”, as it has been described—of never-ending sentences has literally driven prisoners to lose their minds, and even their lives through suicide.
So, while I am delighted the Bill will remove prisons from the list of places of safety, how does it help IPP prisoners? They are deemed too mentally unwell to be released safely. Their illness is derived at least partly from a shameful state mistake, yet IPP prisoners are coercively detained indefinitely in institutions that the Bill would have the state now deem as unsafe for those with serious mental illness.
One case that has recently attracted headlines illustrates an IPP prisoner’s plight as it relates to the Bill. Forty year-old Thomas White has served 12 years as part of his indefinite IPP for a non-violent theft of a mobile phone in 2012. According to his psychiatrist, Thomas developed his religious hallucinations and psychosis as a direct result of being on an IPP sentence. His sister Clara has been campaigning for over a year to have Thomas transferred to a hospital, but his recent assessment appointment was cancelled due to staff shortages. Clara notes despairingly:
“We waited a long time to have Thomas assessed again by the psychiatrist. We more than likely won’t get the assessment again. The system is nothing but criminal—people like my brother are being seriously failed”.
James Frith, the Labour MP for Bury North, agrees. He said:
“Thomas’s indefinite imprisonment has had a hugely detrimental impact on his mental and physical wellbeing. Thomas should be a patient, not a prisoner”.
Hear, hear.
Things are little better for the general prison population. The annual report from the Chief Inspector of Prisons complains of high healthcare staff vacancy rates and chronic recruitment and retention issues. In that context, Richard Garside, the director of the Centre for Crime and Justice Studies, concludes that the provision in Clause 35 to introduce a statutory target of 28 days for transfer from prison to hospital, while welcome, feels aspirational rather than practically implementable in the current system.
The broader crisis of staffing and resources and whether it will hinder the Bill, as we have seen in jails, is also mirrored outside the prison gates. Many briefings that we have all received for this Second Reading query whether the Bill will deliver its promises as a consequence of such problems.
I will now raise a related concern. I think that overstretched mental health services are not just a question of resources but rather a consequence of a recent cultural trend: the problematic medicalisation of more and more aspects of the human condition. Ever greater numbers of people are being encouraged—often by Government-backed policies—to view normal, if adverse or perhaps painful, life events through the prism of mental illness. As a consequence, a greater number of people now demand expert pharmacological or therapeutic intervention.
Over recent decades, this huge increase in classification in the psychological realm has moved the job of diagnosis far beyond the field of psychiatry. A veritable industry of counsellors, therapists and psychotherapeutic practitioners now label an ever-expanding set of behaviours as mental ill-health. As the number of labelled conditions has grown, those reporting that they suffer from such problems has risen exponentially. The stats bandied around are eye-watering. According to the psychologist Oliver James, a third of the adult population shows sign of “psychiatric morbidity”. The problems of worklessness and sick leave, which the Government are rightly tackling, seem dominated by those who have removed themselves from productive work because of mental health-related problems.
Student Minds reports that one in three students experiences clinical levels of psychological distress, but as it is now claimed that students might suffer PTSD if exposed to certain literary texts, it is difficult to assess the clinical authenticity of the so-called mental ill-health epidemic among the young.
The main thing is that the pathologising of ever more aspects of life has unintended consequences, some pertinent to the Bill. For example, we risk reducing the time and resources available to those who desperately need professional help if the system is clogged up with inappropriate referrals and arguably overdiagnosed conditions.
Finally, there is a danger of confusing public opinion if the true horrors and tragedy of serious psychotic illness are relativised and given the same mental health moniker as unpleasant but mundane psychological challenges.
Lord Adebowale (CB)
My Lords, this has been a fascinating debate so far. It is an honour to contribute and to listen to so many learned Peers around the House. In fact, earlier on I detected an almost kumbaya moment around the agreement on some of the aspects of the Bill.
I declare my interest as chair of the NHS Confederation, which is a membership organisation representing health and care leaders in England, Wales and Northern Ireland. We have the privilege of having 100% of all mental health trust leaders in membership.
This debate is overdue, just as updating the Mental Health Act is long overdue. I could not help thinking, during the contributions of the noble Lords, Lord Meston and Lord Scriven, that if we were to go back to 1959, this House would be of archaeological interest before we got anywhere near where we have got to today—so we shall start where we are and continue to make the Bill the best it can be.
I should also point out that a member of my family is on the autistic spectrum, so I get it, just as people who have that experience also get it.
Organisations such as the NHS Confederation have warned that the success of reforms will be dependent on the wider infrastructure to support them. My first question to the Minister is: can she confirm that as well as the important measures in the Bill, we will see further details in next spring’s spending review and in the 10-year NHS plan about how patients and staff working in mental health will be supported in years to come?
The Bill is welcome, not least because it is intended to stop people with learning disabilities and autistic people from being detained long-term, unless they also have a serious mental health condition, but only when there is sufficient and appropriate community care in place to support them. It is clear, therefore, that a plan on how this capacity will be built up is vital; otherwise, people will continue to be detained inappropriately. Can the Minister provide more details on what the Government will do to ensure that we see that capacity is built up, so that people with learning disabilities and autistic people are able to benefit from the support that community care can provide?
Concerns have also been highlighted to me by many of our members and other organisations that the changes for people with learning disabilities and autistic people may unintentionally risk these groups falling into the criminal justice system due to a lack of community provision, as mentioned by the noble Baroness, Lady Watkins. This is similar to the changes in New Zealand she referred to, which led to people with learning disabilities and autistic people sometimes being sent to prison and left neglected in the community or admitted to forensic facilities as secure patients, as they were unable to be detained under its equivalent of the Mental Health Act.
I welcome the safeguards that the changes relating to people with learning disabilities and autistic people will be enacted only once sufficient provision is in place. Can the Minister provide more details on what the Government will do to ensure that capacity is built up so that people with learning disabilities and autistic people are not inappropriately—and indeed unintentionally—detained for many years, often far away from home and for very long periods?
The Government are committed to enacting the changes to detention regarding people with learning disabilities and autistic people only once sufficient community provision is in place to reduce the risk of these people falling into the criminal justice system. Again, can the Minister outline how the decision to enact this part of the legislation will be made?
The reforms that we are debating introduce duties on commissioners to ensure an adequate supply of community services to prevent inappropriate detentions in hospital, but without a funded plan to build up this provision, there is a risk that the proposed changes to the legislation will never be enacted, and people will continue to be inappropriately detained. Can the Minister say what measures the Government will put in place to help commissioners get it right at local level?
In addition, as the noble Lord, Lord Bradley, mentioned, referring to the 28 days, some people are very concerned that it is not long enough to complete a thorough assessment to identify whether patients with a learning disability or autistic people have a co-occurring mental health disorder, due to the complexity of what patients often present. Does the Minister acknowledge these concerns, and will she remain open to discussions with the sector throughout the passage of the Bill so that the views of those who work day to day with vulnerable people, as well as the views of people with learning disabilities and autistic people and their families, can be fed directly into the legislative process?
It is nice to note that many have referred to the stark racial inequalities in the use of CTOs, and wider concerns around their use. However, mental health providers and many professionals agree that they can be beneficial to patients as they can be the least restrictive option, and we welcome the Government’s commitment to reviewing CTOs. Can the Minister share details about the scope and timescale of this review?
The NHS Confederation has raised concerns about high vacancy rates across the sector, which are bound to impact on staff capacity. Again, can the Minister give assurances that this will be addressed as soon as possible, if not as part of this legislation then through the upcoming 10-year plan or the review of the NHS workforce plan? This was mentioned by the right reverend Prelate the Bishop of London, and indeed the noble Baroness, Lady Buscombe, whose points on data I also agree with.
The NHS Confederation has pointed out that more opportunities for patients to challenge their detention are likely to increase the number of tribunal hearings. This would require an additional 33% expansion of the in-patient responsible clinician workforce. Given that national consultant psychiatrist vacancy rates are currently around 10% to 15%, this will be very challenging. With the Government set to publish an updated long-term workforce plan for the NHS next year, as mentioned earlier, can the Minister give an assurance there will be measures in this plan to specifically tackle workforce shortages in mental health?
In referring back to the issue of racial inequality, the patient and carer race equality framework is the key vehicle in reducing the racial disparities that exist in the Mental Health Act and in wider services—which mean, for example, as we mentioned, that black people are far more likely to be detained under the Act or to be placed on a community treatment order than white people. The so-called PCREF is not part of legislation, but all mental health providers are expected to implement it. Concerns exist that the lack of understanding of the framework, as well as the lack of resources available, are hampering its implementation. Again, will the Minister consider using legislation to address these concerns?
Racial disparities are a significant issue, and the NHS Confederation has described the disparities in rates of detention of people from different racial backgrounds as unacceptable—I agree. For example, black people are more than three times more likely to be detained under the Mental Health Act. There is evidence that advance choice documents reduce racial disparities in the level of detentions. This led to many in the sector calling for them to be made statutory. Indeed, this was recommended by both the Mental Health Act review and the pre-legislative scrutiny committee which looked at the draft Bill. Can the Minister set out why advance choice documents will not be made statutory? Is she confident that measures in the Bill concerning such documents will help reduce those racial disparities in detention rates? There are very few evidential interventions that actually reduce racial disparities, so let us use the one that we know works.
The NHS Confederation has highlighted concerns that the new criteria for detention set out in the Bill—namely, that serious harm may be caused—need to be defined. If they are not, we risk inconsistency in how the definition is interpreted. Will the Minister come forward with a definition of what constitutes serious harm so that there can be no doubt about what this means in practice?
Funding for new mental health crisis centres announced in the Autumn Budget was welcome, but we need to see more funding provided for the NHS and mental health in the coming years. As the confederation has pointed out, successful implementation of the legislation we are debating will depend on ensuring that the workforce and resources are in place. That includes capital funding to improve the safety and therapeutic environments of in-patient wards. I have seen some shocking places, as no doubt many noble Lords have. Can the Minister say whether, alongside these much-needed reforms, we will see further funding for mental health in next spring’s spending review? I urge her to speed dial the Treasury.
The Government estimate the overall cost of the reforms to be around £5.3 billion for housing, health and social care costs and £313 million for costs to the justice system in England and Wales. The upcoming 10-year plan and next spring’s spending review are key opportunities for the Government to acknowledge what is needed to enact these reforms. The money for the NHS in the Budget was very welcome. I am a big fan of £22 billion for the NHS, but will the Minister give an assurance that further funding will be made available so that these reforms have the best chance of being effective?
The Government’s commitment to shift more care into the community is welcome because it supports better patient outcomes and is a more efficient use of funding. However, the NHS Confederation and I are among those who have pointed out that we need to make sure that the right provision is in place for that community care. Can the Minister provide assurance today that the Government acknowledge this, and can she set out the Government’s plans to ensure that we have this provision?
As the NHS Confederation pointed out recently, on behalf of our members, people with mental health needs and those with learning disabilities—
Lord Cryer (Lab)
Let me just point out that the limit of nine minutes is voluntary, but a lot of people want to speak.
Lord Adebowale (CB)
I know. I have two things to say and then I will finish, honestly. People with mental health needs, those with learning disabilities and autistic people are waiting too long for appropriate care and support. The mental health estate has also experienced years of underinvestment. Can the Minister give an assurance that alongside this Bill, the Government will use every opportunity they have with the 10-year plan and the upcoming spending review to ensure that we see further investment in care and support for those who need it and into the mental health estate?
Baroness Parminter (LD)
My Lords, it is a pleasure to follow the noble Lord, Lord Adebowale. I will not have quite as many questions for the Minister as he had, but I very much agree with what he says about community treatment orders, which I will return to at the end of my remarks. Like many other Peers, I welcome the Bill, which I hope will improve the treatment of people who are detained when they need to be, for their safety and other people’s, because they are in mental crisis. As others have said, it is a long time coming, and I very much congratulate the Government on bringing it forward so early in their term.
I am not an expert in the field, unlike just about everybody else in this debate, and nor do I have scars on my back from considerations of the legislation in the past. I come to it as someone with lived experience of the impacts of the deadliest of all the mental health conditions, eating disorders, and, in the context of the Bill, as the mother of a daughter who was sectioned aged 17. I know that sectioning is hard. It is hard for the individual: they are separated from their loved ones and the people who care, they cannot do what they want, and they are not where they want to be. It is hard for families and loved ones who are trying to navigate the system. But I know that sectioning works. It saves lives. It saved my daughter’s life when she was in the grips of an extremely vicious eating disorder. She was so malnourished that she could not even allow anyone to feed her by a nasogastric tube, and the state had to step in and save her life. She went to a hospital more than 100 miles away. She was initially restrained and then kept there for five months. We visited her and they kept her safe. At the end of those five months, we were able to bring her home. She was treated in the community by the NHS team, and we are grateful for that care.
I know that detention works, but as the noble Baroness, Lady Watkins, rightly said, we would need less of that detention if there were more provision of community services all around the country so that people could be treated quickly and appropriately. We know that will require more funding, and that was a point that the noble Lord, Lord Adebowale, raised very well. It will require a bigger workforce, and it will require those community services to support people when they need it.
It will also need more specialist beds, and these are particularly needed in the field of eating disorders. At the moment, there are only 251 NHS beds in our country and 198 in the independent sector of specialist adult eating disorder services. The Bill covers England and Wales, but there are no beds at all in Wales. Yet we know that they are absolutely needed. Beat, the leading charity for eating disorders, estimates that about 1.25 million people in this country have an eating disorder. Mental health eating disorder services are absolutely up to the gunnels and beyond, and since 2010 the number of hospital admissions for eating disorders has quadrupled from 7,000 to 28,000—so there is a real pressure point.
When my daughter Rose needed an eating disorder bed, one was not available. She was kept for a month on an adult general ward in the local hospital, where her condition deteriorated to the extent that she had to be sectioned. We need more of these beds. It is no good if we just spend all our time in this Chamber focusing on the particulars of this very small but important part of the Mental Health Bill, on detentions, if the Government do not also grasp the nettle about the need for more beds for people when they really need them.
The other worrying aspect about not having beds is that it stops the mental health law being applied in the first place. The 1983 Act insists that local areas make arrangements for beds in urgent circumstances. I was talking to Dr Ashish Kumar, the chair of the eating disorder faculty at the Royal College of Psychiatrists, who told me that
“even after two medical recommendations, clinicians are not allowed to apply the section because the tier 4 (inpatient unit) services do not offer them a bed. Hence this is a silent crisis—where these seriously unwell patients are not admitted to psychiatry wards or given the opportunity to have a legal provision of the MHAct applied … The whole legal provision is disregarded in a very high number of cases”.
Therefore, I ask the Minister to reassure us—in summing up today and, I am sure, in Committee—that the Government will put equal focus on ensuring that there is community provision for people with eating disorders to minimise the need for people to go into beds, and that there will always be sufficient beds for people with severe eating disorders who really need it.
I agree very much with the comments of the noble Lord, Lord Adebowale, about community treatment orders. It pains me to disagree with the noble Baroness, Lady Browning, for whom I have the highest regard, and with Mind. When we faced Rose being sectioned, the place we turned to for advice to understand the Mental Health Act, as parents literally pushed into it, was Mind and its fantastic website, and I pay tribute to it for that. But I believe that for eating disorders, community treatment orders can be very beneficial.
If you are sectioned for an eating disorder, it is because your condition is such that you are at risk. When you come to be released, you are at high risk, even if you have community support, of losing weight quickly and facing an urgent readmission. That is because the complexity and the tyranny of the eating disorder mean that the person cannot, of their own volition, maintain their weight. A community treatment order puts a boundary around the eating disorder in a way that a voluntary agreement could not, in that it makes it clear what will be the result and what will result in an in-patient setting.
Eating disorders are a really complex battle of control. The person with an eating disorder feels that they are completely out of control, but they are desperate for control. A community treatment order gives them control by not keeping them in a hospital, but it also gives them some sense of control through the terms of the order: they know what is going to happen. Let us not forget that it also gives some control to the community treatment team, who do not have to wait for a medical emergency in order to readmit if that is needed.
I contend that if it is done in the right way—in an open and consultative manner, with the intention of supporting that person to live in the community and access their community care—a community treatment order can be uniquely beneficial for people with eating disorders. It has the benefit of keeping that person out of hospital, and the restriction is on the eating disorder and not on the person. In Committee, I hope to carry on making the case for people with eating disorders and their carers, alongside the many other experts in this field, so that we can ensure that this welcome Bill is as good as it needs to be.
Lord Alderdice (LD)
My Lords, I am grateful for the opportunity to participate in this debate. I declare an interest as a retired psychiatrist and a fellow of the Royal College of Psychiatrists.
So much of what I will say comes from my experience of working as a consultant psychiatrist in Northern Ireland. This is particularly important because the legislation in Northern Ireland has always been different from the legislation on this side of the water. The 1950s’ legislation was referred to earlier. In Northern Ireland, the 1961 Act did not, for example, permit admission or detention on the basis of personality disorder. I will come to that in a minute because that foundational difference is of enormous importance.
I welcome this Bill, not because it is a perfect Bill and not even because the foundations of the Bill are particularly good, but because it is at least an improvement on the way things have been for some time. I welcome the four principles it identifies. There are choice and autonomy, a least restrictive approach, and therapeutic benefit—although, of course, this is a difficult one to assess in a short period, as the noble Lord, Lord Adebowale, has pointed out. It can be difficult to work out whether particular approaches to treatment are going to work in the short term. Often we need time. The fourth principle is treating the person as an individual, although again this is not as straightforward as it might appear.
As Dr Lade Smith, the president of the royal college, has pointed out, there are ways in which a piece of legislation such as this can be introduced. Although with plenty of resources there would be a good outcome, if there are inadequate resources the situation can be made much worse. It is not just that not enough resources do not make the situation sufficiently better; that can actually make it worse. For example, if a decision is made not to admit the most seriously ill patients to hospital, which is a very good principle, the consequence is that the people in the wards are even more disturbed and much more difficult to handle. Keeping the same level of staff makes it impossible to manage them because that number is not sufficient to deal with an increasingly toxic and non-therapeutic environment.
Changing from the most direct family member to a nominated person is very good. I entirely support it, but it is not without its consequences. If, before admission, the person is living with the family, but they decide to choose someone outside the family, the family may not be prepared to accept them back again. The nominated person may not be in a position to accept them either.
The truth is that none of us is simply an individual. We exist in the context of relationships. If we do not find ways of engaging with those relationships, simply operating on the basis of individual autonomy and human rights may actually create problems of its own. I absolutely agree that we should not admit disturbed people to police cells or to prisons, but if we do not provide sufficient alternative resources then either they are admitted to psychiatric units and other people who should be in those units are unable to be admitted because there is no room, or they are not admitted at all and things become worse.
This is a complex issue; it is not at all simple. There are unintended consequences. A whole list of colleagues have pointed this out: the noble Baronesses, Lady Murphy, Lady Hollins, Lady Buscombe and Lady May of Maidenhead, and the right reverend Prelate the Bishop of London. Almost anyone who has had direct engagement with the care of patients in these circumstances realises that there is a degree of complexity in dealing with them that a piece of legislation on its own will not resolve, especially if it is not legislation that requires the provision of resources—which, of course, this Bill does not. Doing something without resources can not only be unsuccessful; it can make the situation worse.
Are there better ways of dealing with this? Yes. The Northern Ireland legislation is much better. It is what was referred to earlier as fusion legislation. That is to say that it looks first at the question of whether a person has disturbance of mind and brain function and, secondly, at whether they understand the information relevant to decisions and appreciate the relevance of it. For example, a person who had delusional thinking would obviously not understand the relevance or appreciate it. It gets away from lots of the problems that this part of the country finds itself dealing with because of the separation of mental illness and mental capacity. Those two things were brought together in the Northern Ireland legislation. That was easier because, as I said earlier, personality disorder was never regarded as an appropriate basis for a formal admission in the first place.
As has been said by a number of colleagues, one of the difficulties that has to be dealt with when legislation is changed if that change is not fundamental—or, frankly, even if it is—is that the culture being operated in is one in which all the staff have been working for decades. Trying to change that is really difficult. One way of doing it is to take little steps. I regard separating out autism and learning disabilities as a positive step in the right direction. The noble Baroness, Lady Fox, is not in her place but I agree—perhaps unusually—with what she said about the overmedicalisation of problems of living. It is true in universities, where there are huge problems now in dealing with students. It is true in all sorts of areas. Every time someone has problems of living it is called mental illness: “I’ve got mental health, doctor”. We wish they did have mental health; that is what they do not have. That is why they have a problem.
All sorts of problems of living are now thought of as disturbance and disorder. That, in my view, is a serious mistake. I have to say that psychiatrists have made their own contribution to developing things in that way, but we have to pull back and look at it again. That is one of a number of very good reasons pointed out by noble Lords for why taking autism and learning disability out of that kind of package, and seeing them in a different way, is an important step in the right direction but—I come back to this again—as long as there is appropriate provision of resources. Without that, things will not go well and we will have unintended consequences.
Those who have produced this legislation and those who will scrutinise it have done and will do it with the best will in the world. They want to make things better and they are doing their best, but a funny thing happens in science: you produce a theory, do some work with it and then discover that it does not quite cover an issue, so you put in a little caveat. Then it does not cover that issue, so you put in another little caveat, and more and more. The whole thing becomes more complex until suddenly, one day, somebody says, “Do you know what? This is not the right theory”, and then there is a shift in understanding to a whole new way of thinking about it.
That is where we are with problems of this kind. We really need to make a paradigm shift. Your Lordships would expect me to say it but, on this issue, the approach that was taken where I was working in Northern Ireland is useful to explore, just as bringing together health and social care was useful. There are other useful things, such as advance choice, but there are so many that we could not possibly deal with them all in one debate. That is why we will be discussing them for quite some time.
Baroness Keeley (Lab)
My Lords, I am glad to take part in this debate in your Lordships’ House, after four years as a shadow Minister for Mental Health and six years on the Health Select Committee in the Commons.
In welcoming this Second Reading, I will speak about dealing with the inappropriate detention of autistic people and people with learning disabilities in mental health hospitals. Noble Lords, including those who served on the Joint Committee on the draft Mental Health Bill, understand that too many autistic people and people with learning disabilities have been detained in inappropriate facilities and for far too long. But we, as politicians and legislators, have not made the changes needed to stop this.
The Winterbourne View scandal and a series of other scandals since 2010 have shown abusive treatment meted out to autistic people and people with learning disabilities detained in inappropriate units. In 2011, following the shocking revelations made by journalists of the abuse to residents detained in Winterbourne View, which was rightly described as “torture”, the then Prime Minister pledged to close all inappropriate in-patient units by 2014. That did not happen. Since then, successive Governments have also committed to targets to reduce the number of autistic people and people with learning disabilities in in-patient settings and to prioritise housing and support in the community for those individuals. These targets have all been missed.
In 2021, the Commons Health and Social Care Select Committee, of which I was a member, completed an inquiry into this treatment. Commenting on the missed and delayed policy targets, the inquiry report suggested that “a more radical approach” was needed to unlock community provision for this group of people. Now there is a chance for reform but there are widespread concerns to raise with my noble friend the Minister that the measures in the Mental Health Bill will not be enough in themselves. While it is welcome that the Bill makes it harder to detain a person under the Mental Health Act on the grounds of autism or learning disability, there are widespread concerns, as we heard in this debate, that this could lead to people being held under alternative routes, including the Mental Capacity Act 2005 deprivation of liberty safeguards. We must guard against that happening.
In many cases, autistic people and people with learning disabilities are not being detained just because of the legal framework they are under. They get stuck for years in mental health hospitals because of the lack of support for them in the community. In too many cases, discharge planning is repeatedly delayed because those responsible see the needs involved as too complex or feel that there are no suitable care providers. I will mention two cases to illustrate this: a young autistic woman called Bethany, and Tony Hickmott.
When I first raised Bethany’s case in the Commons, she was a 17 year-old autistic woman with extreme anxiety, kept in seclusion in St Andrew’s hospital, Northamptonshire. In a cell-like room, she was fed through a hatch in a metal door. When her father Jeremy visited, he had to kneel at the hatch in the door to speak to her. Bethany was detained and held in seclusion despite an assessment that the hospital setting that she was in could not meet her needs and a recommendation that she should be moved to a community residential setting with high support.
The lack of funding for support in the community was clearly a factor. The Walsall Council officer responsible for her placement told Bethany’s father that her care had already cost the council £1.2 million. “To be frank,” the officer said to him, “Walsall could do with a breather”. Moving Bethany to a community setting would involve her local council paying £100,000 to £200,000 a year from the adult social care budget, instead of leaving the NHS to pay the much higher bill, which was £676,000 a year. It seems that Bethany was being held in isolation so that the local council responsible did not have to pay her costs, but the very high costs of her detention were then borne by NHS England.
I raised Bethany’s case numerous times in the Commons and she was at last discharged to live in the community. Fast forward seven years and her father talks about what a happy life his daughter now has, in her own property, with good support from a wonderful care team.
The outcome has not been as positive for Tony Hickmott, an autistic man with learning disabilities. In 2022, Tony had spent 21 years in a secure assessment and treatment unit and it looked as if he could finally move back to his hometown of Brighton, close to his parents Pam and Roy.
Tony had stopped meeting the criteria for being detained in a psychiatric hospital in 2013, but it was ruled that he could not be discharged from there because a suitable community placement could not be found for him. His parents applied to the Court of Protection in 2019 and, after a number of hearings, the judge ruled that Tony should be discharged from hospital to live in a specially renovated house with care from a brought-in provider.
This should have been a happy ending too, but it was not. Reports describe that Tony is now effectively barricaded into the bedroom, with the care staff in his home operating the house like a seclusion room. Tony’s parents, now in their 80s, are prohibited from taking him out into the community. He is held under the deprivation of liberty safeguards. I hope that Tony Hickmott’s care provision can be improved.
Much could have been done by Governments over the last 12 years to tackle this issue of inappropriate detention. The new Government now have the chance to change this. First, we must act to prevent new inappropriate admissions of autistic people and people with learning disabilities. Secondly, we must act to enable the discharge of the 2,000 autistic people and people with learning disabilities detained inappropriately in mental health units.
As we have heard in this debate, the average length of detention for this group is 5.4 years, with 355 people detained for more than 10 years. Mencap has estimated the cost of this care in inappropriate units for this group as £534 million a year. Detentions are often, as we have heard, far away from family and friends, with alarming reports of people from this group being overmedicalised, subject to physical restraint and shut away in isolation. All this is as traumatic for those detained as it is devastating for their families. As Mencap has said, its findings on the staggering cost of institutional care show that this is
“an appalling waste of public money on the wrong type of care”.
I hope that there is now a will to change this.
As I mentioned, there is first the issue of ensuring no new placements of autistic people and people with learning disabilities in those inappropriate mental health units. The Commons Select Committee inquiry report made recommendations on how this could be achieved.
Secondly, the issue of who is paying for care and community support must be tackled. I support the plea made by the noble Baroness, Lady Hollins, for an action plan to succeed the Building the Right Support Action Plan. The Commons Select Committee inquiry recommended that the Department of Health and Social Care should
“redesign the financial incentives … so that local authorities”
and local NHS bodies
“do not seek to ‘offload’”
the care of
“autistic people and people with learning disabilities onto the NHS or place these individuals in inpatient facilities”.
Tackling these issues of funding flows now needs strong cross-governmental action.
There are some further actions that could be taken to improve the mechanisms around this area of work. I thank the human rights lawyer Dr Oliver Lewis for his input. Currently, mental health tribunals are not considered useful in dealing with people stuck in hospital in-patient units. Tribunals dealing with cases for this group should be required to have a medical member with expertise in autism and learning disabilities. Working through the practical issues of achieving a discharge destination for people currently detained could be improved if mental health tribunals are given the power to compel a local authority or NHS body to find a discharge destination in the community or if the Court of Protection was used more to rule on discharge arrangements.
The Bill presents an opportunity to correct an oversight under Section 73 of the Care Act 2014 affecting human rights, which the noble Baroness, Lady Barker, raised earlier. I too thank Dr Lucy Series and Professor Luke Clements for information about the issues raised in the Sammut judgment. As we have heard, that is a ruling that means the Human Rights Act does not apply where mental health patients get Section 117 aftercare in private settings. There is a real concern about the broader implications of this for patients receiving continuing healthcare through private services, children in private social care, and even patients detained in private hospitals under the deprivation of liberty safeguards. This latter group could expand to include the numbers of learning disabled and autistic people who are detained in hospital under the deprivation of liberty safeguards because they are no longer eligible for detention under Section 3 of the Mental Health Act. I am sure it was Parliament’s intention to protect the human rights of vulnerable adults and children for whom the state arranges health and care services. I hope that my noble friend the Minister will agree to the suggested meeting with Lucy Series and Luke Clements to discuss that.
I hope that we can bring forward amendments as necessary to correct this oversight as well as to address the other issues I have raised.
Lord Crisp (CB)
My Lords, I too welcome the Bill. It is overdue and times have changed. People’s views and sentiments, and our knowledge, have changed over those years. I welcome the principles that seek to rebalance the way we handle these issues.
All this is in the context of a Bill that is about the safety of service users as well as public safety. I want to come back to the former but, very briefly, on public safety, I note that the bar for detention will be higher—there must be evidence that
“serious harm may be caused to the health or safety of the patient or of another person”.
The question is: what counts as evidence? Where is the place for the judgment of experienced clinicians? Is that evidence? Is the testimony of relatives? What is the definition of “serious harm?” I understand the need for transparency, but this is a very difficult area that will obviously need much more discussion at later stages of the Bill.
I also welcome the separation out of the care for people with learning disabilities and autistic people, the attention to the needs of people in the criminal justice system and, of course, the importance of tackling racial disparities.
We have had a lot of impressive briefings for this Bill. I will quote one of them, from Blooming Change. That was the one about children who had experience of the system. There were lots of issues about patient safety and quality of care. They talked about being injured during restraint, just being drugged and restrained and being scared all the time. There is a dreadful sentence there, which I will read out:
“Hospital makes you worse … going into hospital with one problem and then leaving with trauma, new behaviours, new diagnoses, assaults, PTSD – it’s awful”.
I noted the earlier comments by the noble Earl, Lord Howe, about the very large number—I think it was 52,000—of uses of restrictive interventions in the last year, and the comments of the noble Baroness, Lady Watkins, about this, and about the importance of children not being in adult wards. It seems to me that this is a great example of what we just heard from the noble Lord, Lord Alderdice, about admission making the situation worse. The idea was to put people into a ward, but, actually, it led to a deterioration of their condition.
If I think about the Mental Health Act, I understand why the review that a lot of this was based on was focused, but actually we cannot think about the Mental Health Act in a vacuum. Let me pick up two or three examples of that. The first one is that the very same Sir Simon Wessely asked me 10 years ago to look at the capacity of acute adult wards across England. I did so, and with a group we were in contact with every service in England and with consultants who were leading the admission and discharge of patients. One of the interesting findings of that was that something over 20% on average of discharges were delayed because of housing. Indeed, of all those units in England, only two had any links with the housing authorities. This seems to me to be a very fundamental point: if you are stuck in hospital, you may well lose your accommodation, which will lead to other problems. That is just one example of many wider social issues that need to be taken into account, even though we are focusing on something as narrow as the terms of the Mental Health Act.
There is also the impact on A&E, which the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, referred to very early on about just shifting the problem if we are not careful: shifting it from one place to actually landing up in A&E, where there may not be liaison, psychiatry or anything else that will help with the problem.
A number of noble Lords deplored the lack of a wider Bill in which this would nest, but it is very clear that this needs to be implemented in the context alongside other changes that are already under way. There are some profound questions here about care and treatment. We have been very privileged to have heard from a lot of people who know a great deal about this, including a number of very distinguished senior commissioners who could give us insight, as well as parents who can give us remarkable insight and profound comments.
If you look at some of the statistics, healthy life expectancy for all of us has improved massively over the last 40 years, but the gap between life expectancy for those with severe mental illnesses and life expectancy for the rest of us has doubled since the 1980s and is now 20 years behind. If we also look at some other evidence, the NHS independent Mental Health Taskforce argues that outcomes from severe mental health problems have worsened in recent years, and others have argued that they flatlined for about 40 years and, in some cases, have deteriorated.
Various noble Lords have talked about the importance of the change in the model that we are talking about here, with much more focus on the community, much more focus on prevention and much more focus on thinking of this end to end, rather than just as isolated incidents involving isolated patients who do not have relationships with the rest of the world in that sort of model. It really seems to be fundamental that we get hold of those issues; even if they are not in this Bill, they need to be linked to an understanding that those changes may well come with the forthcoming 10-year plan and the implementation of this.
I want to touch on a wider point about the overmedicalisation of common problems. Here is another statistic: in the year to April, 8.7 million people received antidepression tablets—and that is just England, without counting anywhere else. The major problem in that area, apart from the overprescribing itself, is helping people to get off those drugs in due course, which is another example of where some of our current practices have been doing harm. We need a new emphasis on some of the social interventions that many noble Lords have mentioned and a new emphasis on patient safety.
Lastly, this is only legislation. It needs to be accompanied by a real implementation plan for the management of change because it cannot be treated in isolation. These other moves and other leaders are making change happen elsewhere. I very much welcome the Bill and look forward to the discussions about some of these important issues in Committee and beyond.
Baroness Berridge (Con)
My Lords, it was a privilege to sit on the Joint Committee to scrutinise the Bill, but it was disturbing to see for how long the legislation has been failing patients, their families and clinicians. I thank my noble friend Lady May, who is not in her place, for instituting the process and for placing a clear focus on the disproportionality faced by racialised communities. There is much to commend the Bill, such as the change in detention criteria, and statutory care and treatment plans, but it could still be improved.
The introduction of community treatment orders made a bad disproportionality situation even worse. The mental health factsheet accompanying the Bill says that black communities are seven times more likely to have a CTO than their white counterparts, although that is an improvement on the evidence to the committee, where we were told that it was up to 11 times, while Parliamentary Office of Science and Technology research states that it is up to 10 times. Whatever it is, it is too high. If CTOs are to remain, I hope the Minister will outline that proper research will be undertaken to understand what is causing that disproportionality.
While I welcome the changes to CTOs, I stand by the Joint Committee recommendation that they should be abolished for Part II patients; I stand with Mind on that. There are differing opinions on this issue now, and it would be useful to return to it in Committee. Because of disproportionality, the CTO issue is of particular importance to certain communities. However, I agree with the noble Lord, Lord Adebowale; we also heard about the informed research showing that advance choice documents are known to reduce detentions and reduce medicalisation when someone is detained. So, while I am pleased to see the advance choice document in the Bill, I ask His Majesty’s Government to consider that there should be a right to request that.
As the Bill goes through Parliament, I hope that the hard work of a smaller, often less-resourced group of activists for these communities will be appreciated. The work of the NAS and Mencap is exemplary, but sometimes those who are not able to shout the loudest are in the greatest need of our support. I am sad to notice that two of the provisions that are particularly important to racialised communities are being diluted.
One of the most important changes is that the outdated use of nearest relatives is being replaced by nominated persons who represent the patient and exercise relevant statutory functions. It is important to note the power that the nominated person has. It includes the power to order the discharge of the patient, unless of course a barring order is made. Ideally, the nominated person is chosen by the patient, but if they do not have capacity, that function is done by the approved mental health practitioner—AMHP. Those are welcome changes for most adults—I note the comments from the noble Lord, Lord Alderdice—but the Joint Committee’s report highlights that all is not clear with regard to the nominated person and children and young people.
The decision not to have a new piece of legislation is a particular problem. When the Mental Health Act 1983 was passed, it was envisaged that it would really apply only to children in the criminal justice system. To complicate matters, the Children Act 1989 was passed, with further amendments later on giving 16 and 17 year-olds the right to consent to medical treatment if they have capacity. Then came the Mental Capacity Act, which does not apply to under-16s but does if you are 17. Then Gillick competence was added to the mix. Yes, it is all rather fudgy, even before you add on the nominated person under the Act.
I will give a couple of examples. For the under-16s, under new Schedule A1, the nominated person must be the person with parental responsibility, but what of the situation of a special guardianship arrangement where the parents keep some residuary parental responsibility? Does the AMHP have to appoint the parents and the special guardian? That would set up quite a difficult arrangement for clinicians. Also, why does this schedule refer to a local authority being “willing” to act as the nominated person? Under the Children Act when there is a care order, local authorities have a duty to act when they have parental responsibility.
I turn to the 16 or 17 year-old who lacks capacity to appoint a nominated person. There is no mention at all of parents’ responsibility in paragraph 10 of that schedule, yet the young person might be living with them. So if the nominated person uses the powers of discharge, a process takes place for them to be discharged. You are relying on the mental health institution to remember that parental responsibility lasts until someone is 18 and to tell the parents that the patient is on their way home. That might not sound like a problem, but if you have got other, younger children in the household, it might be a risk to them to have that person back in the household. Also, a 16 or 17 year-old may be under a care order. Is the local authority going to be informed because it is going to be providing the accommodation? The schedule is silent on that. A common statutory mechanism is to mandate for particular circumstances like those of the under-16s but to have a presumption for other situations. So why not have some kind of presumption that a 17 year-old person with parental responsibility should be the nominated person if they are residing with them?
The previous Government accepted that after the independent review on children and young people more thought needed to be given. So will the Minister agree to have a meeting about children and young people with officials, interested Peers, and the experts in this field who are practising in this niche area of the Mental Health Act and the Children Act?
Children and young people are also in a vulnerable position if they have learning disabilities and autism and no co-occurring mental health illness. If they are in crisis and the parents need help, if there is no Mental Health Act provision, then what happens? We have heard about the use of DoLS under the Mental Capacity Act, but if you are 17 or 18 and lack capacity and are held under that, there is no Section 117 aftercare. However, if you are under 16, or 17 with capacity, you are not under the Act at all. Where does that leave you? That probably leaves you under the inherent jurisdiction of the High Court or, rarely, a care order. Only last week the Children’s Commissioner reported on around 1,000 children a year who are now under the jurisdiction of what is called a High Court DoLS order. Let us just say her report is not good news about that third provision to restrict a person’s liberty.
While the situation for those with learning disabilities and autism is currently shocking—and I marvel at the work of the noble Baroness, Lady Hollins—the Act could make a bad situation worse. This is also important to cover at the meeting that I have suggested and as High Court DoLS are a relatively new creation, it would be good to have there former members of the judiciary who have had experience of imposing those orders on children and young people.
I am disappointed not to see the recommendation from the Joint Committee of a mental health commissioner as part of the Bill. Since the Joint Committee reported, rare events have shown the danger to the public if mental health services fail. Often it is those who not medically trained but are friends and family who can see that someone is getting really unwell and needs help. Is it obvious to know where to go if you have tried the previous hospital and you have tried to use PALS? Do friends and relatives know that it is the CQC that they need to go to? The police have rightly stepped back in some respects in these situations. Not appointing a mental health commissioner is a missed opportunity as it is imperative that those people know somewhere to go to. While the Joint Committee’s report was not overt about this being a function of the mental health commissioner because it was before the events I have outlined, an emergency process such as this could well fit within their remit. It would be a one-stop shop. While there is a mental health homicide review under way, if there is the need to legislate, we could now be missing it. However, if His Majesty’s Government established a mental health commissioner whose functions could be by way of secondary legislation, the door to legislation remains open if that review suggests such measures.
Finally, I hope the Minister will inform your Lordships’ House that the Law Commission is being requested to look at whether, in England and Wales, we should be doing what the noble Lord, Lord Alderdice, recommended, and which is happening in Northern Ireland: the fusing of our mental capacity and mental health laws. This is a sticking plaster only on an area of law that badly needs a restart.
Baroness Neuberger (CB)
My Lords, I declare interests as chair of University College London Hospitals NHS Foundation Trust and Whittington Health NHS Trust, and as a member of the North Central London Integrated Care Board. I am delighted to be able to speak in support of the Bill today, which has been a long time coming. As noble Lords know, I was one of the three vice-chairs of Simon Wessely’s review. It seems a long time from when we published that in 2018.
I pay particular tribute to the noble Baroness, Lady Buscombe, and her team for their pre-legislative scrutiny, which did so much to clarify and to push the draft legislation nearer to what our original review had said, but your Lordships will not be surprised to hear that there are still some areas of concern. I say that as I pay tribute to the Minister for all her engagement, both formal and informal, with members of the review team.
The Government have published the impact assessment for the Bill, showing what they believe will be the costs of the improvements that we all wish to see happen, but have said absolutely nothing about how they will pay for all of this. If we are going to make these reforms work, we are going to need money in the system. Other noble Lords have said precisely that, notably the noble Lord, Lord Alderdice, and the noble Baroness, Lady Watkins, on the subject of staff. You have only to speak to people working in this field to realise that they are desperate for resources, beds and staff—particularly nurses—alongside alternatives to detention that provide real care and do not leave people on the streets. That goes back to the issue of community treatment orders, which we will no doubt come back to in Committee, because this is a really serious concern.
We all know that public finances are under huge pressure but I urge noble Lords, and particularly the Minister, to push as hard as possible for funding for these reforms and the mental health system as a whole. It really is needed and if we do not do that, whatever we legislate will make precious little difference to what happens. That is what we ought to worry about. It is also vital that this House notes the commentary from the Royal College of Psychiatrists whose president, Dr Lade Smith, warns us that these reforms must not make worse the racial disparities already associated with the use of the Act. We need to take heed of that, as many other noble Lords have said.
I want to thank some people in particular, notably Sir Simon Wessely, the chair of the review and, one might argue, the architect of these reforms, and my co vice-chairs Mark Hedley and Steven Gilbert, for their essential contributions. I want also to pay tribute to the Civil Service teams in the Department of Health and Social Care and the Ministry of Justice, particularly Matthew Lees, who put in huge amounts of hard work and showed astonishing devotion to the cause. Some of them have seen it all the way through.
We are delighted that the Bill includes the new guiding principles that we devised and recommended, as well as provisions to promote the use of advance choice documents; but as the noble Earl, Lord Howe, and the noble Baroness, Lady Berridge, have said, there is something very peculiar about the way this is framed. Advance choice is not given as a right to patients; it is a duty upon the ICBs. When we get to Committee, we need to push that one quite hard.
We also remain disappointed that the Government have not been able to include measures relating to our recommendation that the tribunal consider appeals from patients whose expressed preference for a particular kind of treatment has been overturned by doctors. We believe that that would be an uncommon occurrence; nevertheless, it is an important safeguard for patients’ rights—a right to be involved in decisions to do with your own care. I really hope that the Government will reconsider this proposal, ideally before we end consideration of the Bill.
We are living in a time of increasing tolerance and understanding of mental ill health and decreasing stigma surrounding it, but that is not what many people in the system experience. Many people are most distressed not by the detention itself but the way in which they are treated and made to feel helpless, ignored and stripped of their dignity and self-worth. That is why the review identified—and this is key—a clear gap when it comes to supporting and valuing patient autonomy. It is why we argued that we must move away from what we heard all too often: the default position of clinical staff rejecting what the patient wants. Many of the independent review’s recommendations therefore aim to shift the dial in favour of greater respect for the wishes, choices and preferences of patients. It was also clear that when people were—rightly, in their own view—being deprived of their liberty, they were also all too often being deprived of any say in how they should be treated. As one service user who was part of our core team told us when we started on this process:
“I am sure being detained saved my life, but did it have to be such a terrible experience?”
In one significant respect, the Bill goes beyond any recommendations that we made, proposing, in effect, to exclude learning disability and autism from the scope of the Act, except for short-term admission. Other noble Lords around the House have spoken on that; however, we were and remain concerned that exclusion from the scope of the Act might not solve the problem—although it should—but instead simply shift it elsewhere. The noble Lord, Lord Alderdice, I believe, was hinting at that too.
This Bill, unlike its predecessors—I am a veteran of 2008 as well—enters Parliament with a considerable level of agreement from all the political parties, professionals, media, the charitable sector, service user groups, and in particular stakeholders representing ethnic minority communities, although there are considerable worries.
So there are some concerns, and we know about that. I very much hope that the Minister will be able to meet once again with the team from the Royal College of Psychiatrists and with some user groups, particularly people with autism and other disorders who are expressing major concerns—all of us will have had some of those emails. I hope that that can happen as the legislation goes through, so that we can see if any further fine tuning can be done. But this is without doubt the right time—one might even say it is overdue—to modernise the Act, and I very much hope that the House will support it.
Baroness Ramsey of Wall Heath (Lab)
My Lords, today I will focus on those aspects of the Bill that concern children and young people with learning disabilities, autism or both. I also want to note that I found listening to the lived experience of the noble Baroness, Lady Parminter, very moving indeed.
My formal interest in this issue dates from my being the independent chair of NHS England’s children and young people transforming care steering group—for children and young people with autism and learning disabilities—from 2017-20, and before that as chair and non-executive board member of various NHS organisations. My close personal interest, however, is lifelong, as the younger sister of Patricia, who I mentioned in my maiden speech.
Patricia was born in a much less enlightened time than we enjoy now, with a learning disability that denied her expressive language and deemed her at the time of her early childhood in the 1950s as a mental defective under the then mental deficiency legislation. My brother Jim followed soon after. My younger sister and I came some years later, to our loving parents’ great joy, but neither she nor I ever lived with my sister Patricia, as she was taken away from our parents when she was seven—before we were born—to a huge and forbidding mental hospital near Birmingham, three long bus rides away from where our parents lived. They had to write each month to the hospital authorities for permission to visit, a maximum of once a month.
When our father died in 1990, my mother asked me to become Patricia’s co-guardian with her and gave me a box that he had kept containing all the paperwork concerning Patricia. The letters from my father asking for permission for Jim, my brother, to visit his sister once she was removed from the family home are heartbreaking to read, as he was always refused, even at Christmas time, because Jim was under 12. So Jim did not see his sister for years.
By the 1960s, these rules had relaxed, and my other sister and I were taken to visit one Sunday a month. I am ashamed to say that I dreaded those visits as a little girl—not because of Patricia, who I liked to see and spend time with, but because the heart of the hospital was a forbidding Victorian building where patients with mental health issues were kept. Sometimes I would hear screams and see figures trying to put their arms out of the tops of windows. At the side of the hospital for the learning disabled—by then called mentally handicapped—which was physically a much pleasanter part of the site, we would sit and eat with and cuddle our sister, who was always delighted to see us, especially our mother.
In time, my parents got a car, and my father would drive us to a café with Patricia. Sometimes we were made welcome, and sometimes not so much. My sister never went to school as she was 18 by the time the duty to educate children with learning disabilities came in following the 1970 Act. My mother found that heartbreaking.
As a child, I did not know that my parents were campaigning to get Patricia moved nearer home, hoping to take advantage of a more benign regime that was developing in the 1970s of long-stay campus-style hospitals where young adults with learning difficulties could live, still under NHS care but with fewer restrictions on the number of visits and more activities for patients—later residents. Eventually, my parents were successful, and those were happier years, with much more contact and my sister being able to visit the home that she had not grown up in.
After my father’s death I took up the campaigning mantle from him to make sure that Patricia genuinely benefited from the latest initiative: care in the community. My sister lived her last years, until she died in 2018, in a real house near our family home with three ladies she had been with previously, and we could visit whenever we wanted. My brother died 30 years ago, so he did not live to see this. My other sister and I had moved to London, but my mother was delighted, as were we, that Patricia lived in a proper house with its own kitchen with home-cooked meals and we could visit whenever we liked.
When the noble Lord, Lord Stevens of Birmingham, in his previous role as chief executive of NHS England, asked me to establish and chair the steering group in support of transforming the care of children and young people with autism and learning disabilities, your Lordships can see why I jumped at the opportunity. As the chair of the steering group, my task was to help bring together all those organisations which had important roles in reducing the number of children and young people with autism, learning disabilities, mental health conditions and behaviours that challenged, but with no criminal backgrounds, being detained.
The steering group included representatives from the Department of Health and Social Care, the Department for Education and local government, as well as charities advocating for these children and young people. What became crystal clear was that detention happens when local education, health and children’s social care services either do not or cannot meet their complex needs appropriately. Although the world has clearly moved on a long way from the days of my sister’s incarceration, I am afraid that I heard some very distressing accounts from families and hospital staff about the reality of detention, as eloquently described by my noble friend Lady Keeley, and not so short of enforced solitary confinement, as described so eloquently in the important work of the noble Baroness, Lady Hollins.
At the same time, I saw inspiring examples of what is possible when local community services come together around the needs of children and young people, including on a visit to a special school in north London where I saw pupils who in other circumstances would have been locked away in secure hospitals. The head teacher worked with a multidisciplinary team, including social workers, speech and language therapists, psychologists and others, who liaised closely with the pupils’ families.
One key issue was raised repeatedly by families and those youngsters who could speak for themselves in the stakeholder engagement meetings we held. Although NHS guidance states that each child or young person in such a situation should receive a care (education) and treatment review—CETR—and DfE guidance requires that they should also receive an education, health and care plan, or EHCP, this was all too often either not happening in a timely manner, or it was happening but not being acted upon. This was partly a matter of resources, partly a matter of priorities, and partly a lack of joined-up work between health, education and local government.
This important Bill includes proposals to strengthen current arrangements, and this is to be greatly welcomed. In particular, the assumption that children and young people with autism and learning disabilities should not be detained if at all possible—and, if this is not possible, for only the minimum of time and with a proper review and plan for treatment in place—is a huge step forward. I am delighted that it has received wide support across the political parties, beginning with the noble Baroness, Lady May, when she was Prime Minister and subsequently under more recent Governments. It shows families such as mine that society is beginning to make real progress towards greater understanding and humanity in its attitude towards people with learning disabilities and autism—albeit sometimes more slowly than we would wish for.
However, legislation on its own can take us only so far. Genuinely sustained improvement will require multiagency work—including at government level, as my noble friend Lady Keeley said—with high levels of co-operation in the community to provide effective support for children and young people at risk of being detained. Stronger multiagency community services, combined with the Bill’s provisions, would ensure a very different life for those children and young people and their families from the one my sister had.
Lord Stevens of Birmingham (CB)
I am very pleased to follow that very powerful speech from the noble Baroness, Lady Ramsey, which reminded us all of the personal stakes that we are debating, as did many other such speeches today. I started my NHS career 30-odd years ago running a large psychiatric hospital outside Newcastle, where in some respects the quality of care was high but in others, frankly, far too many people with long-term mental health problems had been warehoused, in effect, for decades. That was a point in time when there was a big shift to re-provide services in less restrictive community settings.
I mention that simply to remind us that it was not the Mental Health Act 1983 per se that triggered all that; it was a combination of better therapies, alternative services and, frankly, greater power and influence for the voice of users of mental health services that together constituted that initial shift in services. So, as we think about the Bill before us, of course we must attend principally to the content of the legislation but we must also think about how quickly it will be implemented and the context in which it will land.
As we have heard, this is a very well-vetted piece of legislation. We will want to pay attention to the unintended consequences that various noble Lords have raised and I agree with others that some components are seriously underpowered. The advance choice documents provision, I am afraid, will not cut it as currently described. We heard that from the noble Baronesses, Lady Buscombe and Lady Barker, the noble Earl, Lord Howe, and many others. Unlike the clinician checklists set out as a requirement in Clause 11, the care and treatment plans that are a statutory requirement in Clause 20, or the new rights for voluntary in-patients to access independent advocacy set out in Clause 38, when it comes to the advance choice documents all we have is a fairly vague, subjective responsibility on the NHS and integrated care boards to give it their best shot. I am paraphrasing, but only slightly. In effect, they are asked to provide information and help to the extent that they consider appropriate. Frankly, a notice on a noticeboard with a phone number to call would constitute progress as far as the Bill is concerned. We need to address this fundamentally. Based on the comments this evening, it sounds as if there may be a latent majority for an amendment when we get to Report, depending on how our debate in Committee has gone.
That is just one example of the Bill’s content. The related question is the one the noble Lord, Lord Scriven, very powerfully raised: however good this is, when will it actually see the light of day? When will it be implemented? Actually, the most salient piece of this legislation is lurking right at the end, at Clause 53(3), which says that most of this stuff will spring into life only through the fiat of the Secretary of State at a date yet TBD. As the impact assessment—which, again, as the noble Lord said, is a very important and revealing document—says, a lot of these measures are seriously back-loaded. Even the ones that are supposedly front-loaded are highly dependent on a set of resourcing which may or may not occur.
For example, the new detention criteria for people with learning disabilities and autistic people may start in 2026-27, but next to a little asterisk is written:
“This timeline is highly indicative as an illustration for modelling purposes. This reform will commence once systems are able to demonstrate sufficient levels of community support for people with a learning disability and autistic people as an alternative to hospital-based care”.
As we have heard from the noble Baroness, Lady Keeley, and others, we have been waiting for that for some long years. My concern is that we run the same risk here as we saw with, say, the implementation of the Dilnot reforms: something sits on the statute book but never actually comes to life because it is always, “Mañana, mañana”, given the chicken and egg problem of resourcing and alternative services to allow the thing to come about. There is an implementation timescale question that I am sure we will want to pay attention to.
Related to that is the extent to which the Bill interacts with the real-world state of mental health services, social care, housing, the criminal justice system and so forth. Two of the four principles in Clause 1—“Choice and autonomy” and “Least restriction” of care—are intrinsically tied to the availability of alternative services. Therefore, you cannot divorce the Bill from decisions that this Government and future Governments will make on its resourcing.
If we want a moment of legislative humility, let us cast our minds back to the Health and Social Care Act 2012, where parity of esteem was legislated from the rooftops. Frankly, we did not see parity of esteem begin to kick in on the back of that declaration. In fact, between 2010 and 2016—a time of rising mental health need—the mental health workforce was cut by 9.4%. I took the decision—with the support of the now noble Baroness, Lady May, as Prime Minister—that, from 2016 onwards, we would introduce the mental health investment standard. This required that, each year, the share of NHS funding going on mental health could not fall—it had to be at least constant and should be rising—to stop the squeeze that was otherwise taking place. As a result, in contrast to that 9.4% reduction, we have seen a 26.5% increase since then. In his review for the new Government, the noble Lord, Lord Darzi, said:
“This important intervention has … enabled much of the mental health capacity that was cut in the first part of the 2010s to be rebuilt”.
That is why this House was good enough to support my amendment to the 2022 health Act, which was then adopted by the Government. This ensured that, prospectively, before the start of each financial year, the Government of the day have to set out their stall and declare whether they intend that mental health spending will grow as a share of the overall pie in the year ahead. The reason that is so important is not just history: at a time when, understandably, there will be great political focus on waiting times for physical health and routine operations, the most likely outcome, absent that mental health investment standard, would be that mental health services would get screwed at a time when other things are prioritised.
We will want a renewed commitment by the new Government to that mental health investment standard, perhaps as early as the planning guidance for the coming year, 2025-26. We will be able to take stock of that before Committee to make a judgment about whether we should recommend a strengthening of that mental health investment standard in the statute, because it is inconceivable that the good measures laid out in the Bill can actually be implemented while mental health services are squeezed as a share of the growing NHS budget.
In the western movie “The Magnificent Seven”, Steve McQueen said that, as gunslingers, “We deal in lead”. Clearly, here in Parliament, we deal in law, but my underlying point is that law gets you only so far. The question is not just the content of the law but how it is implemented, how fast and in what context. We need to keep our eyes on all those as the Bill proceeds.
Baroness Bennett of Manor Castle (GP)
My Lords, as the last Back-Bench speaker in this rich and informed debate, I note that we in the Green group start our meeting each week by asking ourselves what original things we have to say, specifically as Greens, about a Bill or a debate—so it is useful to come at this particular point in the circle. As Greens, we very much agree with the need for the Bill, which virtually every noble Lord noted. We also very much agree with the need to strengthen it.
I respectfully disagree, however, with a number of noble Lords who have suggested that we are seeing an overmedicalisation of life events. Perhaps this is not quite what they meant to suggest, but it sounded like they were saying that we do not have a mental health crisis in our society. I would very much say that we do. I agree with the noble Lord, Lord Crisp, that there is a great need for more talking therapies and that, for want of those, medical professionals are very often forced to resort to pharma solutions.
We need the talking therapies, but we also need treatments because we have a mental health crisis. Behind that is not any characteristic of individuals but a deeply unhealthy society and, when we are thinking about this Bill, we have to think about it in that context. We have to think that when we compare ourselves to the societies we generally consider comparable, we have much greater health problems than them. We must ask ourselves why. This is true of mental and physical health, in so far as it makes any sense to make a division between those two. I do not think anyone this evening has yet used the phrase “the gut-brain axis”, but in the last decade there has been an explosion of understanding of the link between the microbiome and mental health. We have, particularly in the UK, a broken food system. This is of course a long way from legislation but, if we are to think systemically, it is the context in which we have to think about the Bill.
As some noble Lords have made reference to, there are also the social issues to consider, whether the levels of poverty, the insecurity of income and housing, or the pressurised jobs that treat workers like robots and make them ill. We have a loneliness epidemic, which I do not think anyone has mentioned yet, but that is very much related to our mental health epidemic. We have a huge problem with domestic violence, which is also related to mental ill-health, particularly among the victims. We need to take a public health approach to mental health. While that is not directly part of the Bill, we cannot talk about mental health without talking about all those issues.
On other areas on the Greens’ unique approach to mental health issues, we do not believe that the coercive power of the state—which is what the Bill is talking about—should ever be put into private hands; nor do we believe that healthcare should ever be run on a for-profit basis. Here, I remind us of the points made by the noble Baroness, Lady Keeley, about when the private provision of mental health care has gone horribly wrong.
A number of noble Lords have focused on the problem of stigma; perhaps we have made progress over recent decades, but we still have a long way to go. We have to think very carefully about using the rhetoric of “strivers versus skivers”, and the suggestion that all we have to do is get these people into a job and then they will be fine, because that is the underlying message we are hearing from certain very senior quarters in our society. I must mention that there has been talk of combining support for people seeking jobs and mental health care. I would not necessarily say not to do that, but it has to be done with extreme caution to ensure that it is not something that puts more pressure and stress on people, interfering with them becoming well.
More positively, I commend the Government on bringing the Bill forward so early in their term and on making it a Bill that starts in the House of Lords. I compare it to the Domestic Abuse Act, during the passage of which many noble Lords who have taken part in today’s debate also took part. There was a genuine effort from all sides of the House to make that Act better, and it has been very clear this evening that there is the same desire in this Chamber today.
Many noble Lords have made the point about the need to resource what is in the Bill—we also said that about the Domestic Abuse Bill—including, to single out a few, the noble Lords, Lord Alderdice and Lord Adebowale, and many others. There have also been some really good ideas in this debate, and here I particularly single out the noble Baroness, Lady Watkins. The idea of a safe staffing level for community services strikes me as a potentially transformative idea that is really essential. Far too often, care in the community has simply meant being abandoned in the community, being left in the hands of horribly overworked staff, who are then subject to abuse and questioning when things go wrong because they simply have not been able to handle the workload, through no fault of their own. It is really crucial that we tackle those issues.
I will quickly whizz through some specific points of the Bill, particularly focusing on things that other people have not said. I have not heard a great deal of discussion of the idea, as recommended by the Joint Committee on the Draft Mental Health Bill, that we have a mental health commissioner. The briefing from the Centre for Mental Health draws a parallel with the powerful impact of the Children’s Commissioner; I would also add the impact of the Patient Safety Commissioner, on which I worked with the noble Baroness, Lady Cumberlege, over many years. Again, that was a case in which your Lordships’ House was very powerful in pushing to create that position. Having the Patient Safety Commissioner has made a real difference, and having a new statutory role to champion mental health across government and speak up for people with mental illness is something we really should be including in the Bill.
Very briefly, I agree with the noble Baroness, Lady Fox, on community treatment orders. The Bill still allows these to be continued indefinitely rather than placing a time limit on them with an option for a new one if needed. These should not be renewed without proof of necessity and proportionality.
I will use my remaining time to focus particularly on the importance of children and young people. Many other noble Lords have addressed and given us statistics on how our mental health services are failing young people. I want to draw another parallel with another element of what the Government are doing and which I have praised. A couple of nights ago, rather late in your Lordships’ House—about this sort of time, actually—we were discussing the Government’s plan for a new youth strategy and their plan to make sure that there is really strong consultation on it with young people. The one direct question I will put to the Minister is: I am sure the noble Baroness is aware of the phrase “Nothing about us without us”. What is being done to ensure that there is a real say for young people, particularly young people with experience of the mental health system, to ensure they actually have the chance to be involved in the Bill?
I will rush into one final, technical point. The Bill introduces the new statutory care and treatment plans for all patients. That is welcome, but many under-18s are admitted on an informal basis, so they will not be covered by this. How will that be dealt with?
One final rushed point is that the noble Lord, Lord Alderdice, and others, have talked about how we can learn from other parts of the UK. The mental health Act in Wales includes a measure to give people the right to have a mental health assessment if they request help. That is surely something we could learn from and include in the Bill.
Baroness Tyler of Enfield (LD)
My Lords, I apologise for my croaky voice. It has been an excellent and very well-informed debate. Like all other noble Lords today, I welcome the early introduction of this Bill, after so many years of delay, to modernise the woefully out-of-date 1983 legislative framework. Indeed, it has been one of the longest and most tortuous gestation periods of any piece of legislation I can remember.
I thank so many organisations for the excellent briefings I have received, as well as those who have worked so hard to get us to this stage, including the independent review chaired by Sir Simon Wessely and the cross-party Joint Committee chaired by the noble Baroness, Lady Buscombe.
Those people directly affected by this piece of amending legislation deserve better. From these Benches, we welcome the introduction of the Mental Health Bill as an important step towards modernising the mental health care system and enhancing patient rights. We are encouraged by the Bill’s emphasis on empowering patients and giving them greater control over their treatment decisions, and we want firmly to establish the principle that detention is an opportunity for treatment and a path to recovery, rather than being seen solely in terms of containment.
Like so many others, I particularly welcome the fact that the Bill seeks to limit detention for people with learning disabilities and autistic people who do not have a co-occurring mental health condition and removes prisons and police cells as suitable places of safety. As my noble friends Lord Scriven and Lord Alderdice said, this reform package moves incrementally in the right direction, seeking to balance the rights of individuals with the imperative of public safety.
But there is much more to do to strengthen and improve the Bill and to look at the wider context, particularly at the adequacy of existing mental health services outside of the Act and broader social inequalities. Ensuring we have the necessary funding, the workforce with the right skills and training in the right place will all fundamentally affect the implementation of this Bill.
However, I am disappointed that quite a number of the recommendations by the Joint Committee have not been picked up, in particular those on a mental health commissioner, on the interface between the Mental Capacity Act and this Bill and on strengthening duties on integrated care boards and local authorities to ensure an adequate supply of community services for people with learning disabilities and autism—points to which I shall return. Will the Government provide a detailed response to the Joint Committee report setting out the rationale for the recommendations that have been accepted and those that have not?
There are a number of themes that we will want to explore in Committee, and the first is prevention. We all know that, in healthcare, prevention is better than cure, and the noble Lord, Lord Darzi, Wes Streeting and the Prime Minister have all said it is one of the big three transformational shifts that are needed. We need to apply that same principle to this Bill and live up to that mantra. Put simply, we need to focus on preventing people from reaching the point where they risk being sectioned in the first place. That means deeper and wider preventive mental health in our communities. Currently, as a country, we focus on treatment rather than prevention. We spend around £230 billion on healthcare but only £3.5 billion on public health and only about 3% of that on preventive public mental health work. There is so much more we could do in schools, with walk-in hubs in the community and regular mental health check-ups et cetera.
A key Liberal Democrat objective in this Bill will be promoting good mental health. I believe we need a power included in the Bill that enables the relevant health and local authorities to undertake the promotion of mental health with realistic resources attached. That is also why I want to see a new right to both assessment and treatment for mental health introduced, similar to the Care Act rights that we introduced back in 2014, for people to get the help they need at earlier stages, directly preventing unnecessary admissions.
On racial disparities, given that two of the key drivers of the 2018 review were to reduce detention rates and the stark disparities in the application of the Act on some racial groups—as the noble Baronesses, Lady May and Lady Berridge, said so powerfully—we must explore what other opportunities exist to strengthen legislation in this regard. Specific examples would be putting the Patient and Carer Race Equalities Framework on a statutory footing and including an equity principle—in addition to the four existing guiding principles—which, like the noble Lord, Lord Bradley, and my noble friend Lord Scriven, I would like to see in the Bill to underline that these principles sit at the heart of all decision-making covered by it. I also support a new responsible person role at hospital level to oversee and monitor race equality in the day-to-day operation of the Act, with a corresponding duty on the Secretary of State to report annually on progress against reducing inequalities. Such a package could have real teeth.
Like the noble Lord, Lord Bradley, and others, I also strongly support the establishment of a mental health commissioner, as recommended by the Joint Committee. Such a commissioner would both promote access to treatment across the spectrum of mental health services, including things like beds for eating disorders, and oversee implementation of the Act, including ensuring that racial disparities are fully addressed and monitoring the use of community treatment orders.
On seeing detention as an opportunity for treatment and recovery, I would like to see the definition of appropriate medical treatment strengthened to take account of the settings in which treatment is delivered, including community settings, and the importance of non-drug-based intervention—either in tandem with medication or on its own—where it is clinically effective.
As many noble Lords have said, the Bill makes some important changes to better regulate the use of CTOs. These were originally meant to be a route out of disproportionate sectioning but, in reality, they have exacerbated the number of black people who are subject to compulsion under the Act. However, the revisions in the Bill currently stop well short of adopting all the independent review’s recommendations. For example, they allow CTOs to continue indefinitely, rather than placing a time limit on each CTO, with the option to make a new one if it is still needed. As my noble friend Lady Parminter made clear, we should explore this in Committee.
As many others have said, we need to view equal treatment between Part II and Part III patients as paramount. Ensuring that all patients detained under the Mental Health Act, including those involved in the criminal justice system, have equal access to advocacy, mental health tribunals, appeals and other rights—no matter which part of the Act they are detained under—is a key principle. Given, as I have said, that one of the key drivers for reform was addressing racial inequalities, and that black people are significantly more likely than white people to be detained under Part III, we currently risk further entrenching these disparities.
Much has rightly been said about people with learning disabilities and autism. The changes to Section 3 are an important step in ending the human rights scandal of inappropriate detentions of autistic people and people with a learning disability. As the noble Lord, Lord Touhig, and the noble Baroness, Lady Hollins, said, legislative change must be accompanied by investment in the right community support. Without this, autistic people and people with learning disabilities will continue to reach crisis point with their mental health. There is a real risk of these groups falling into the criminal justice system, simply due to lack of community provision. This has been the New Zealand experience, as the noble Baroness, Lady Watkins, highlighted. They are then unable to access Section 117 aftercare support. We are told that this change will be enacted only once sufficient provision is in place. Can the Minister provide more details on how this decision will be taken and what the Government will do to ensure that capacity is being built up in the community?
My noble friend Lady Barker, the noble Lord, Lord Bradley, and others expressed concerns about the interface between this legislation and the Mental Capacity Act. I share these concerns. I feel that it is currently fuzzy and unclear, leading to inconsistency in practice and confusion as to which legal framework applies. We must explore this further in Committee, including understanding what has happened to the liberty protection safeguards that were introduced under the Mental Capacity (Amendment) Act but have not yet been implemented.
I am also aware of concern within the sector that there has not been adequate or meaningful engagement with people with learning disabilities or autism, or sufficient time for them to be properly involved in decisions that directly affect their lives. How do the Government intend to remedy this? Do they have a plan of stakeholder engagement, particularly with groups led by people with learning disabilities and autism?
One area which particularly concerns me and about which we have heard a lot today is the position of children and young people who are too often receiving poor-quality care in unsuitable conditions. There are many things we can do in Committee to strengthen the position for children. I was profoundly moved by the family experience that the noble Baroness, Lady Ramsey, recounted. I thank her for that.
There is much else that I would like to say about implementation, but I have probably run out of time. I welcome the collaborative style adopted by the Minister towards improving the Bill. I look forward to working with other noble Lords on this vital and long-overdue piece of legislation.
Lord Kamall (Con)
My Lords, this has been a fascinating debate. Having read the various reports sent by many organisations, including the excellent briefing from the House of Lords Library, I felt pretty well briefed but, having listened to today’s contributions —including the moving contributions from my noble friend Lady Browning and the noble Baronesses, Lady Parminter, Lady Keeley and Lady Ramsey—I realised that there is so much more for us to learn.
These Benches welcome the Bill. In particular, I pay tribute to my noble friend Lady May, who, as Prime Minister, commissioned the Wessely review to consider a number of issues: why, as we heard from many noble Lords, were detention rates increasing and, in particular, what could be done to reduce inappropriate detention? I understand very well the point made by the noble Baroness, Lady Parminter, about when detention may be appropriate or inappropriate. The review also considered how to improve the way that different agencies respond to people in crisis to ensure that they are treated with dignity and respect. It looked at the disproportionate number of people from certain ethnic backgrounds, specifically Afro-Caribbean men, being detained under the Act and what should be done about it.
I am also grateful to noble Lords who served as members of the pre-legislative Joint Committee on the 2022 draft mental health Bill, which was based on the recommendations of Sir Simon Wessely’s review. Some of them have spoken in this debate: in particular, my noble friend Lady Buscombe, who chaired the Joint Committee; my noble friend Lady Berridge; the noble Baroness, Lady Hollins, who has a long history in this area from personal and professional experience; the noble Baroness, Lady Barker, who has many times said, “I told you so”; and the noble Lord, Lord Bradley, who was a champion for mental health during the passage of the Health and Care Bill. Quite often I was urged to resist some of his amendments but, with hindsight, I am glad that he prevailed to ensure that we continue to discuss the parity between mental and physical health. As many noble Lords have said, the challenge is how we turn those words into action throughout the system. I also thank the noble Baroness, Lady Neuberger, who sat on the Wessely review and who, when we looked at and discussed this when I was the Minister, gave me quite a bit of time—partly, I think, because she chairs the trust of the hospital where I was born.
They all had very incisive insights so, in approaching this debate with my noble friend Lord Howe, we considered the report from the Joint Committee and this generated many of our questions. We wish to probe the Government on the recommendations from the report, especially those with which the Bill seems to disagree. We will not, at this stage, tell the Government where we agree or disagree; it is more to understand the Government’s reasoning for not including specific recommendations from the Joint Committee.
We also ask the question: if and when the Bill is passed, what next? How and when will the Government implement the main changes in the Bill, as was alluded to by the noble Baroness, Lady Murphy, and the noble Lord, Lord Scriven? Last week during Oral Questions, one of the ministerial colleagues of the noble Baroness, Lady Merron, made what sounded like a government commitment. But when questioned by one of my noble friends, that Minister admitted that it was not a commitment but an aspiration.
Similarly, the briefing notes accompanying this year’s King’s Speech stated that the Bill would take
“a number of years to implement”
and that the Government would introduce these reforms
“in phases as resources allow”.
At this stage, therefore, we would like to understand which changes the Government plan to introduce immediately and which reforms they are aspiring to, rather than actively planning. This is to make sure that we avoid some of the problems that the noble Lord, Lord Alderdice, alluded to in his contribution.
I move now to the main areas that have been raised in today’s debate on which we would like to learn more about the Government’s intentions. The noble Lord, Lord Touhig, reminded the House that autism is not a mental health condition. My noble friend Lady Browning highlighted the lack of understanding of people with autism. The Joint Committee recognised the risk that people with autism or a learning disability could be given additional and unnecessary medical mental health diagnoses in an attempt to justify detention, when they can no longer be detained under Part II of the Mental Health Act. What firm plans do the Government have, in this Bill or otherwise, to try to manage and mitigate this risk?
The Joint Committee recommended a full statutory review of the use of community treatment orders within three years but, as my noble friend Lord Howe pointed out, there is no commitment to such a review in the Bill. Can the Minister explain the Government’s reasoning for not committing to a review within three years?
On children, both the independent review and the Joint Committee made recommendations—some of which are not in the Bill—about the treatment of children, such as the inappropriate placement of under-18s into adult wards or into facilities that may be miles away from their home. Can the Minister clarify the Government’s position on these two specific issues?
On advanced care documents, which the noble Baroness, Lady Barker, has championed for many years, the Joint Committee recommended that these be made a statutory right for all patients detained under the Mental Health Act. As my noble friend Lady Buscombe has said, this could be done in the form of an app if we make sure to push through the digitalisation of the NHS and the whole care system. The Bill as it stands does not follow up on this recommendation, preferring to place a duty—one noble Lord alluded to it being “vague”—on NHS England and ICBs to inform patients about advance care documents. Many noble Lords, including the noble Lord, Lord Stevens, have raised this issue, so I think the House would find it helpful if the Minister could explain the Government’s reasoning behind not introducing these documents as a statutory right in the Bill.
We welcome the Bill removing police stations and prisons as places of safety for patients not in the criminal justice system. However, as my noble friend Lord Howe said, one unintended consequence raised by several bodies was that this could lead to a rise in the number of people admitted to A&E departments, sometimes escorted by police and having to wait in crowded spaces with a lack of specialised facilities until they can be assessed by clinicians. When do the Government envisage that NHS trusts will be able to deal with the potential increase in the number of mental health patients admitted to hospitals as places of safety?
The president of the Royal College of Psychiatrists, who contributed to the independent review, raised concerns about the proposed changes to the treatment of those with learning disabilities or autism, as there may be times when community services cannot manage the level of risk that such patients present, and when it might take some time to decide whether this is related to co-occurring mental illness. In such cases, patients may be brought into A&E, but what happens if their behaviour is perceived as affecting the safety of others in the A&E department? This could lead to the police being called, and suddenly they are in the criminal justice system. I wonder how the Minister sees the Bill dealing with such a situation.
I now turn to the issue of early intervention, which the British Association of Social Workers raised during pre-legislative scrutiny and which the noble Baroness, Lady Watkins, raised today. The BASW stressed the importance of early intervention to prevent the admission of mental health patients into hospitals in the first place, which they described as being at
“the interface of mental health and mental capacity legislation”.
A number of noble Lords have talked about whether we could have gone back to first principles and started with fusion legislation. We note that Sir Simon Wessely suggested that this was not practical or would take too much time; I do not wish to misquote him. My noble friend Lady Berridge also mentioned the interface with the Children Act. This all asks how we can do this in a holistic way, but by taking a step back are we just waiting even longer for something to be done to fix the problems with the existing legislation? We have obviously decided on this route but I ask the Minister what thought is being given to future fusion legislation or rethinking the interface between the various Acts affected here?
The pre-legislative scrutiny committee also recommended
“the creation of a Mental Health Commissioner … to oversee the direction of travel … and implementation, monitoring outcomes and supporting cultural change … be an advocate for patients, their families and carers and speak up about the stigma still attached to severe mental illness”.
Yet the Government have decided not to accept this recommendation. I note that a number of noble Lords across the House have spoken on this missing part of the legislation. Can the Minister explain why the creation of a mental health commissioner has not found its way into the Bill?
One of the main reasons for commissioning the independent review was to examine why so many people of Afro-Caribbean heritage are detained under the Mental Health Act. Indeed, Sir Simon Wessely wrote in his report that one of his earliest academic papers, in 1989, was on the subject of the overrepresentation of those of black, African and Caribbean heritage among those diagnosed with schizophrenia. Are the Government, the NHS and the department any closer to understanding the key factors behind this overrepresentation? What do they believe can be done to reduce this disparity, or does it need further research?
The Minister might find this odd coming from me, given that when I was Minister I quite often tried to shield the Government from this—now that the roles are reversed, there might be a certain irony—but I will ask about a workforce plan. In all honesty, when we were in government we were pressured by the Treasury not to accept this, and it quite often pushed back when we tried to make the case for this, so I understand that it is a real challenge for the Government. We completely understand, and it would be unfair of me now to take advantage of the fact that I am in opposition. Our Government belatedly published a workforce plan. What is the thinking on publishing a workforce plan, given that many noble Lords across the House have asked about this, particularly once the Bill becomes an Act? How long would it take to actually implement this? We need to understand more about the resources—otherwise, it could make things worse.
I realise that I and other noble Lords have asked many questions, and I certainly do not envy the Minister. We look forward to her responses, either now or in writing, and we welcome her engagement with noble Lords across the House.
Baroness Merron (Lab)
My Lords, I put on record my gratitude to all Members of your Lordships’ House for contributing to what was widely agreed, I am sure, to have been an excellent debate—excellent not just because of the level of engagement but because of the detail. I really feel that spirit of wanting to improve the legislation and the support for the Bill thus far. I will endeavour to respond to as many themes as possible; I am very grateful to the noble Lord, Lord Kamall, for his sympathy, which I accept, but I regard that as a good thing. I regard it as admirable that I will not be able to answer all the questions, because that is the purpose of being here. It sets us up for Committee. It is obviously going to be a very rich Committee, and I very much look forward to it.
I hope noble Lords will understand that I look forward to following up on the many points that I will not get a chance to address in the time I have and doing a proper review of the debate today, picking up points as needed. I pay tribute to the dedication and the detailed attention to the Bill that noble Lords have already given. I am very glad to see my right honourable friend the Secretary of State gazing on. The reason I say that now is that the Secretary of State knows only too well—and not just from me—the contribution that your Lordships’ House makes and will continue to make. I for one certainly appreciate it, as I know he does.
I also thank the noble Baroness, Lady Parminter, for her bravery in sharing her and her family’s experience and anguish of eating disorder. I say the same to my noble friend who shared her experience about her sibling. It is not always easy to do that, but it really brings a lived experience of those around the person we are often thinking about, and it is so important that we do that. This debate has confirmed to me what I knew already—but it is always worth doing it again. It is the product of persistence and of a number of investigations and recommendations. It is also inspired and underwritten by the tireless campaigning that many have undertaken to improve the rights and experiences of people with mental health conditions and learning disabilities and autistic people.
It also reflects the input of those with lived experience, which was first raised as necessary in the debate by the noble Baroness, Lady May. It is about striking the right balance between getting the details of a framework of legislation right, along with the urgent need for reform, and the point that noble Lords have raised about how that is going to be done.
Attitudes and knowledge, as many noble Lords have acknowledged, have changed radically. Mental health is increasingly out of the shadows, and through the Bill we can make sure that legislation does a much better job of keeping up with a shift in societal attitudes and expectations and the development of treatment.
Regarding the role of your Lordships’ House, like the noble Baronesses, Lady May and Lady Barker, I recognise the relevance of this House. I too welcome that the Bill has started its passage through Parliament here because I believe your Lordships’ House will do the job that it is here to do, which is to improve legislation, and this debate today has certainly confirmed that.
In looking at what we are trying to achieve, I am reminded of the words of Professor Sir Simon Wessely in his foreword to the independent review’s final report, where he said that
“we want the Mental Health Act to work better for patients, the public and professionals. We hope that the result will be to reduce the use of coercion across the system, whilst giving service users more choice, more control and better care, even in the event that detention is still required. And we particularly hope that the end result will be to reduce the inequalities and discrimination that still remain”.
Almost six years after the former Prime Minister, the noble Baroness, Lady May, commissioned that independent review, the draft legislation before us speaks to those aspirations as well as delivering our manifesto commitment to modernise the 1983 Act.
On the reduction of detentions, I certainly agree with the noble Baroness, Lady Murphy, and other noble Lords that reducing detentions cannot be achieved by legislation alone. It will depend on having the right services in the community.
New models of care in the NHS are already giving over 400,000 adults greater choice and control over their care. We are also trialling new models of care through six early implementers, bringing together community crisis and in-patient functions into one neighbourhood team that will be available 24 hours a day, seven days a week, to increase access and improve continuity of care in the community. I know from the debate today that many noble Lords are looking for that sort of development and good practice.
As we know, the Bill makes a number of improvements in respect of patient experiences and care, and of the increase of choice and autonomy. It seeks to tackle racial discrimination and provide safety for public, staff and patients, and to provide better support for those with autism and learning disabilities.
I turn to some of the main themes that have been raised. I say to the noble Baroness, Lady Tyler, that we continue to be committed to engaging with those with lived experience. Part of the point of the Bill is that, where those with lived experience have not had their voices heard, I believe our continued engagement will allow that.
On racial inequalities, many have spoken passionately about this matter, including the noble Baronesses, Lady Watkins and Lady Buscombe, and the noble Lord, Lord Adebowale. The racial disparities associated with the operation of the current Act were one of the many drivers of reform, and rightly so. The changes in this Bill will give patients greater say in their treatment and encourage more collaboration and less coercion in care and treatment planning, which are all crucial to reducing inequalities. This will include increasing oversight and scrutiny of community treatment orders, where racial inequalities are at their most acute. It will also be about encouraging the uptake of advance choice documents, where those with lived experience, as I said in my opening remarks, have been very generous in their reference to their use in reducing inequalities. Legislating so that people can choose their own nominated person will also protect rights.
Inequalities in outcomes are not just a result of how the Act has been applied but also due to wider social and economic factors. We will therefore be working across government to ensure that the Bill’s provisions are effectively implemented, aiming to reduce those racial disparities in decision-making under the Act, starting with using the code of practice to make clear which actions can be taken in the application of the Act. We are also taking forward non-legislative reforms recommended by the independent review, including the Patient and Carer Race Equality Framework and also piloting culturally appropriate advocacy models to support those from minority ethnic backgrounds to understand their rights under the Mental Health Act and to give voice to their individual needs.
On the mental health commissioner, I have heard many comments, including those expressed by the noble Baronesses, Lady Murphy, Lady Barker, Lady Buscombe and Lady Berridge, and the noble Lord, Lord Bradley, and others. That is quite a group to address, but I will have a go. It is true that we have not taken forward the pre-legislative scrutiny committee’s recommendation to establish a statutory mental health commissioner. We recognise that improvements need to be made to the quality of care and the patient safety landscape. However, the concerns are that the proposed mental health commissioner’s function would be potentially largely duplicative of existing bodies and functions, and nobody wants to risk diluting accountability or causing confusion. As noble Lords will know, Dr Penny Dash has been asked by the Secretary of State to assess if the current range and combination of organisations within the healthcare regulation landscape is effective and to make recommendations of what might be needed, and I think it is important that we await her recommendations.
Learning disability and autism were raised by a number of noble Lords, in particular by the noble Baronesses, Lady Hollins, Lady Buscombe and Lady Browning, my noble friends Lady Keeley, Lady Ramsey and Lord Touhig, and the noble Lords, Lord Scriven and Lord Adebowale. This is a very important point and I recognise that we want to improve care and support for the over 2,000 people who are currently detained, as well as anybody who may need support in the future. We know from the NHS’s safe and wellbeing reviews that four in 10 people who are detained in this group have needs which could have been met in the community with appropriate support. That is why we are going to be focusing on developing community services and improving the quality of care, which will happen alongside the Bill’s reforms.
Through the Bill, we will be taking forward a package of measures for those with a learning disability and autistic people, so there will be a significant programme of work, alongside investment. I will be pleased to engage with expert stakeholders and those with lived experience, including parliamentarians, and to update your Lordships’ House as we progress.
With regard to the recommendations of the pre-legislative scrutiny committee, there is no doubt in my mind that the Bill has benefited greatly from undergoing scrutiny in 2022. It is a better Bill for that and we have tried to incorporate more of the Joint Committee’s recommendations within it. Many of those recommendations relate to the statutory code of practice and we will consider how we take these forward following Royal Assent.
On the important point of implementation, raised by many noble Lords, including the noble Lords, Lord Adebowale and Lord Bradley, the truth is that we estimate that the full implementation of these reforms will take around 10 years. The speed at which we can implement will be limited by the time that we need to expand and train the workforce. This goes to the point raised by the noble Lord, Lord Kamall, and I am grateful for his honesty in the way that he described previous work on the workforce. I thank him and his ministerial colleagues—predecessors of mine—who have worked on this.
The reality is that while some reforms can commence much sooner than others, we will need to commence powers under the new Bill in phases. Implementation will depend on what happens during the passage of the Bill and the reality of future funding settlements—to the point raised by the noble Lord, Lord Stevens—as well as other developments, such as the 10-year plan, but I can briefly give an indicative timeline.
A small number of reforms relating to the criminal justice elements of the Bill will commence within two months of Royal Assent. In the first year after Royal Assent, there will be a focus on updating the code of practice and creating the necessary secondary legislation to enable implementation. We will need a further year to train existing staff on the reforms and ensure that processes are in place. We would therefore hope to commence the first phase of significant reform in 2027, and to commence further reforms as and when there is sufficient resource in place to do so. In the spirit of honesty, the truth is that for what I would call the most burdensome reforms—for example, the increased frequency of mental health tribunals—those would not be likely to commence before 2031-32.
Alongside the passage of the Bill itself, we are looking closely at implementation in relation to learning disability and autism. Again, the exact timing of implementation of the reforms will depend on future funding. I know that noble Lords will understand that I am limited in what I can say on that, but we have already demonstrated our direction of travel by: treating and resourcing mental health seriously, including having a mental health professional in every school; introducing open-access Youth Futures hubs; recruiting 8,500 mental health workers; and having £26 million in capital investment. Indeed, there is the priority that many noble Lords, including the noble Lord, Lord Crisp, have acknowledged of bringing this Bill forward as a matter of urgency.
The noble Lord, Lord Meston, and the noble Baroness, Lady Berridge, raised the disparity of treatment between children and adults. It is true that there are a small number of reforms which do not apply to children and young people, as was also raised by the noble Baroness, Lady Watkins. It is the case that there is a difference; nevertheless, we are committed to improving children and young people’s autonomy over their care and treatment. We still believe that these reforms will go some way to achieving this. Like adults, under-18s should be supported to share their wishes and feelings by the clinician when it comes to care and treatment decisions.
On the issue of prison transfers, which was raised by the noble Baroness, Lady Watkins, and the noble Lords, Lord Scriven, Lord Bradley and Lord Adebowale, we recognise that operational improvements are needed to ensure the safe and effective implementation of the statutory 28-day limit. NHS England is indeed taking steps to address some of the barriers to timely transfer of patients. The wording in the Bill, which refers to the need to “seek to ensure” a transfer within 28 days, should be sufficiently robust to provide accountability for a breach of that time limit, while recognising that there are multiple agencies involved.
As we know, while this legislation—
Baroness Berridge (Con)
I hate to interrupt, given the lateness of the day and the lateness of the hour, but the point that a number of noble Lords were making in relation to children is that this Bill potentially does not sit with the principles under the Children Act. If the Government intend impliedly to repeal parts of the Children Act, then it would be good to have that clarification from the Dispatch Box.
Baroness Merron (Lab)
I look forward to coming to that point in Committee. The marrying up of legislation will be important, as is making progress on the Bill. That applies to the point of the noble Lord, Lord Alderdice, and others about fusion. We do not want to hold up this Bill while we make progress, but we will be mindful of the interface with other legislation.
In this Bill we are starting with the most overdue reforms to make the law fit for the 21st century. I very much look forward to working through the Bill in much greater detail in Committee. I am most grateful to all noble Lords who have not just spoken this evening but worked to get us to this point.
Baroness Merron
That the Bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee that they consider the Bill in the following order: Clauses 1 to 3, Schedule 1, Clauses 4 to 23, Schedule 2, Clauses 24 to 38, Schedule 3, Clause 39 to 54, Title.