Grand Committee
Environmental Permitting (Electricity Generating Stations) (Amendment) Regulations 2024
(3 days, 16 hours ago)
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Lord Hunt of Kings Heath
That the Grand Committee do consider the Environmental Permitting (Electricity Generating Stations) (Amendment) Regulations 2024.
The Minister of State, Department for Energy Security and Net Zero (Lord Hunt of Kings Heath) (Lab)
My Lords, these regulations were laid in draft before the House on 30 October 2024. The Government believe that the answer to the challenges around energy security, affordability and sustainability point not in different directions but in the same direction: clean power. Investing in clean power at speed and scale can help tackle the climate crisis and create good jobs. We believe that it is the only route to protect bill payers and ensure energy security; this is why making Britain a clean energy superpower by 2030 is one of the five central missions of this Government.
To deliver that mission, we will rely increasingly on a renewables-led system as the foundation for a decarbonised grid. We have set ambitious but deliverable targets to double onshore wind, treble solar and quadruple offshore wind by 2030. Although renewable energy is at the heart of our plan to deliver clean power, we also know that we must bring forward low-carbon generation sources, providing added security for when the sun does not shine and the wind does not blow. This includes flexible supply sources that can scale up or down instantaneously to meet peak demand.
Some of this flexibility can be provided by short-duration technologies such as batteries, which can help balance the system within each day, but we know that we will also need long-duration technologies, which can run for extended periods of low renewable production. To meet this challenge, the Government are investing in low-carbon flexible technologies, such as carbon capture and storage at existing power stations, hydrogen and long-duration electricity storage. This flexibility is critical to maintaining a constant supply of electricity in the UK, keeping the lights on for millions of homes and businesses.
However, as these new low-carbon technologies scale up, we will continue to need reliable mature technologies, including gas, to provide energy security. The National Energy System Operator’s report on delivering clean power by 2030 showed that maintaining gas capacity in the system is in line with the mission to deliver clean power. We have been clear from the outset that gas is expected to be used less in our future energy system, moving to an important strategic reserve role in order to ensure security of supply. Although gas will continue to play an important role in the system, it is only right that we should expect any new or substantially refurbished combustion plants to be built “net zero-ready”. This is why we are uplifting the existing regime and introducing the new decarbonisation readiness requirements.
Before I turn to detail of the decarbonisation readiness requirements, let me first set out the current regime. Since 2009, all new-build combustion power plants in Great Britain sized over 300 megawatts have been subject to the carbon capture readiness requirements. These regulations require plant operators to demonstrate that it is technically and economically feasible to retrofit carbon capture and storage technology. Due to the threshold of 300 megawatts, the policy has seen limited application since 2009. The reality is that it has contributed to a costly market distortion by incentivising the building of smaller, less efficient plants and inadvertently creating an unacceptable loophole. This has resulted in a significant number of plants being built at 299 megawatts in order to avoid the carbon capture readiness requirements.
The policy landscape has changed significantly since the carbon capture readiness requirements were introduced. Plant operators now have an alternative pathway to decarbonise, through hydrogen-fired generation, as well as the introduction of the UK’s legal obligation to meet carbon budgets and reach net zero by 2050. In March 2023, a final consultation on the decarbonisation readiness proposals was published alongside the publication of two technical studies for hydrogen and carbon capture and storage. The consultation received positive feedback from industry. Some 28 organisations and one individual responded—representing plant operators, original equipment manufacturers and trade associations—with broad support for the proposed changes and implementation of the decarbonisation readiness requirements. We published a response in mid-October, giving the go-ahead to proposals set out in the consultation.
On the details of the regulations, this statutory instrument will amend the Environmental Permitting (England and Wales) Regulations 2016 by inserting new Schedule 25C. It will remove the minimum capacity threshold of 300 megawatts, which will remove any existing market distortion and support rapid decarbonisation by ensuring that nearly all new and substantially refurbishing combustion power plants must have a credible plan to decarbonise. The regulations will also move the requirements from the planning consent process, where they currently sit for carbon capture readiness, to environmental permitting. This will ensure that the responsibility for regulating the requirements falls to the Environment Agency rather than to local planning authorities and my own department. Unlike local planning authorities, the Environment Agency is already involved in the assessment of carbon capture readiness and has the technical expertise to assess the requirements. As I mentioned a moment ago, that will also include hydrogen readiness.
The new requirements will now enable combustion plants to demonstrate decarbonisation readiness through conversion to hydrogen firing, as well as carbon capture. In doing so, the instrument introduces hydrogen conversion readiness and carbon capture readiness assessments, which are proportionate to the developing nature of hydrogen to power and carbon capture and storage. The requirements will also expand the generation technologies in scope of the requirements to include biomass, energy from waste and combined heat and power plants. This will ensure that a higher number of carbon-intensive plants are now captured.
These updated requirements are intended to strike a balance. They ensure that new-build plants and the refurbishment of old sites are conducted ready to take full advantage of future decarbonisation opportunities, while acknowledging the emerging state of hydrogen and carbon capture technologies and their enabling infrastructure. We expect that the requirements will be strengthened over time as the generation technology improves and clarity on enabling infrastructure availability increases. To ensure that we regularly assess the impact of the policy and the case for strengthening the requirements, we have included a statutory requirement for the Government to carry out a review of the policy in periods not exceeding five years.
In summary, these regulations will ensure that the gas capacity we need for security of supply is future-proofed and has a credible plan to transition to low-carbon operation. In doing so, it will help deliver our aim to become a clean energy superpower and deliver net zero by 2050. I beg to move.
Lord Teverson (LD)
When one is first appointed to Parliament, one worries about addressing a huge crowd of parliamentarians and being on the telly as well. I am not feeling too nervous today.
I found the Minister’s explanation excellent; I did not understand it particularly from the legislation or the Explanatory Memorandum. I presume that the whole area around potential new gas, in particular combustion power stations, is about aiming for 95% decarbonisation by 2030 rather than 100%, which I understand in terms of pragmatism.
On the areas that I do not really understand, the one that I had not really realised is the hydrogen aspect of these regulations. I find it difficult to understand how one would ever convert a gas power station to a hydrogen power station in a way that would make any economic sense whatever in terms of gas storage coming in and perhaps being used as part of the capacity mechanism. The hydrogen would have to be green hydrogen, which means that it is probably generated by electricity in the first place—so why would one de-convert it through various inefficiency mechanisms for it then to go through a degassed power station? That just does not seem logical to me.
On that, the other risk seems to be that—I am not a technical expert on this, obviously—the conversion from a gas-fired power station to a hydrogen-fired power station is probably not that different, and therefore the cost of conversion, or of being hydrogen-ready, is not very great. Carbon capture and storage, however, is a major conversion and, presumably, it has to be near facilities that can store carbon: either a carbon pipeline, which we went through all the legislation for in the last Energy Act, or something on the coast, so it can go undersea. So I ask the Minister: is this effectively another loophole like the one that already exists, in that new combustion stations just say that they are hydrogen-ready? In terms of carbon capture and storage, does that very much restrict where they are?
I have another concern, although I fully accept what the Government are trying to do here. The Minister mentioned energy from waste plants. We all know that, as part of their planning permission, the plants often have to be ready to have heat networks—but this hardly ever happens. Occasionally it does; there are examples of energy from waste being tapped into heat networks. I just feel that there is a risk that these things can be built in a certain way—I do not know how much they have to be ready or near a connection—but in reality they will never happen. Certainly, that tends to be the track record in this area.
I will be interested to hear the Minister’s comments, but, generally, I welcome what the Government are trying to do.
Lord Offord of Garvel (Con)
My Lords, in speaking to these regulations, I will concentrate on a major area where I feel the Government must provide some clarity: regulatory burden. In doing so, I am of course mindful that it was the previous Government who introduced the initial consultation to expand and update carbon capture readiness requirements, now rebranded as decarbonisation readiness requirements. The immediate effect of these regulations will be felt across electricity generating stations in England, particularly those now required to meet the expanded decarbonisation readiness criteria. Operators will be required to submit a decarbonisation readiness report as part of their environmental permit applications, which must include technical details on the feasibility of carbon capture or hydrogen conversion during electricity generation.
A significant provision in this statutory instrument is the removal of the 300 megawatt minimum capacity threshold, which currently dictates when carbon capture readiness requirements apply. In this amendment, the requirements will apply to both new and substantially refurbished combustion power plants, as well as voluntary applications for existing plants. Additionally, the SI introduces assessments for hydrogen conversion readiness and carbon capture, usage and storage.
It is incumbent on the Government to outline comprehensively what specific support will be available to businesses as they are required to adjust to these new requirements. Can the Minister assure me that his officials in the department recognise that the onus must be on helping operators achieve compliance rather than face an undue burden? Will he outline whether exemptions have been considered—for example, for smaller or older power plants that may face specific challenges in meeting the requirements on day 1? There is a fine line to be walked between regulation and innovation, and, to use a familiar proverb, there is a real need here to make sure that we are not cutting off our nose to spite our face.
This instrument hands the Environment Agency direct assessment powers over compliance. Again, can the Minister provide the necessary detail on the actions that the agency will take to facilitate a smooth transition before the implementation date of February 2026? Additionally, will there be any further consultations, or will any additional guidance be issued, before the regulations come into effect?
Lord Hunt of Kings Heath (Lab)
My Lords, I thank the noble Lords, Lord Offord and Lord Teverson, for their comments. I should say to the noble Lord, Lord Teverson, that I am grateful for his support and for noting the clarity with which we have presented the proposals. In terms of the popularity of debates on energy SIs, we have had more colleagues here in previous debates, but we are presently on a rota of two SIs every Monday, and at some point I hope we might come to a conclusion in relation to that.
Greenhouse Gas Emissions Trading Scheme (Amendment) Order 2025
(3 days, 16 hours ago)
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Lord Hunt of Kings Heath
That the Grand Committee do consider the Greenhouse Gas Emissions Trading Scheme (Amendment) Order 2025.
The Minister of State, Department for Energy Security and Net Zero (Lord Hunt of Kings Heath) (Lab)
My Lords, this order was laid before Parliament on 3 December 2024. Noble Lords will know that the UK Emissions Trading Scheme, UK ETS, was established under the Climate Change Act 2008 by the Greenhouse Gas Emissions Trading Scheme Order 2020 as a UK-wide greenhouse gas emissions trading scheme, contributing to the UK’s emissions-reduction targets and net-zero goal. The scheme is run by the UK ETS authority, a joint body comprising the UK Government and the devolved Governments. Our aim is to be predictable and responsible guardians of the scheme and its markets.
Under the UK ETS, operators are required to monitor, report on and surrender allowances in respect of their greenhouse gas emissions. Most allowances are purchased at regularly held auctions. However, operators in certain sectors at risk of carbon leakage are given a number of allowances for free in order to manage both their exposure to the carbon price and the risk that businesses’ decarbonisation efforts could be undermined by higher-carbon imports.
Under the UK ETS, an operator is the person who has control over an installation. Installations are stationary units at which regulated activities take place. Sub-installations represent operations carried out at an installation in respect of which free allocation operators are required to report activity levels for the purposes of the ETS.
I now turn to what this statutory instrument does. We have brought forward this SI to enable important changes and improvements to the scheme to be made. Under previous UK ETS policy, where a sub-installation ceased operation, free allowances were no longer distributed in respect of that sub-installation in the year after the year in which the relevant sub-installation ceased operation.
However, the operator was entitled to retain the full amount of free allowances made available in respect of the sub-installation without recalculation to account for the permanent cessation of the sub-installation within the scheme year. Noble Lords will readily see that this had the potential to result in the overallocation of free allowances beyond the volume required for carbon leakage mitigation, as well as the distribution of free allowances that were no longer associated with an activity that resulted in emissions.
This instrument ensures that the volume of free allocation to which an operator is entitled in the final year in which operations are carried out at one or more sub-installations is calculated by reference to the level of activity at the relevant sub-installation in that year. To facilitate this change, this statutory instrument will require that operators prepare an activity level report in respect of the final year in which operations are carried out at a sub-installation. That report will be used to recalculate the volume of free allocation to which the operator is entitled in the final year in which operations are carried out at a sub-installation, and any overallocation will be recoverable in accordance with existing scheme rules.
This instrument includes an exception to the final-year rule in circumstances in which the permanent cessation of operations at a sub-installation is part of a series of changes that has resulted in a material reduction in the specified emissions per unit of production of those pre-cessation products that continue to be produced at the installation. This exception to the final-year rule will incentivise decarbonisation, as operators that can demonstrate that the relevant requirements are met will continue to be entitled to the free allocation calculated in accordance with existing UK ETS rules, which is calculated in advance on the basis of historic activity levels.
This instrument also amends the circumstances in which an installation or sub-installation has ceased operation for the purposes of the UK ETS legislation. The previous definition of the circumstances in which an installation or sub-installation had ceased operations was at the point in time when it became technically impossible to resume operation. This definition was difficult to apply consistently in practice. The updated definitions provide that an installation has ceased operation when all regulated activities, in the case of an installation, or the relevant operation, in the case of a sub-installation, have permanently ceased to be carried out at the installation. This amendment increases certainty for both the scheme regulators and operators.
This instrument also introduces a requirement for operators to notify the relevant scheme regulator of circumstances in which all regulated activities cease to be carried out at an installation by the end of the scheme year in which the cessation occurs or within one month of the date of cessation—whichever is later—and to confirm whether the operator intends for one or more regulated activities to resume at the installation. Operators are similarly required to provide details of a cessation of operations in respect of a sub-installation in annual activity level reports prepared in relation to the 2025 scheme year and thereafter. Requiring these reports will facilitate the application of the new final-year rule.
The statutory instrument introduces a new power for regulators to issue a notice to an operator which determines that an installation or sub-installation has ceased operation for the purposes of UK ETS legislation. The new power is available in circumstances where the regulator is not satisfied that the operator intends regulated activities to resume at the installation or intends for regulated operations to resume at the sub-installation level. The change will increase certainty for operators and facilitate equivalent treatment for all installations undergoing a cessation.
The changes follow comprehensive engagement and consultation with stakeholders. Between 18 December 2023 and 11 March 2024, the UK and devolved Governments ran a consultation, seeking views on proposals to alter the free-allocation methodology for the UK ETS statutory sectors to better target those most at risk of carbon leakage and ensure that free allocations are fairly distributed. The UK Emissions Trading Scheme: Free Allocation Review covered the provisions included in this statutory instrument on permanent cessations. The responses to this consultation were in broad support of the proposed technical changes to the treatment of permanent cessations. The authority response to this consultation will be delivered in two parts; an early response to proposals on permanent cessations was published last November.
In conclusion, I have spoken at considerable length on what seems to me a perfectly sensible order that builds on the work of the last Government. It seems to me absolutely sensible and proportionate. I beg to move.
Lord Teverson (LD)
I do not think I have ever known something so simple be made to sound so complicated, if I am honest. Basically, this will stop people having a free ride after they have closed down a particular part of their business; I think that describes it. Therefore, it makes sense and is right to do.
Perhaps I may come back to a slightly broader canvas, because this is a really important area for the UK ETS. Free allocations come primarily from grandfather rights and work through. I presume that all free permits will cease as the UK introduces the carbon border adjustment mechanism, which I think is coming in 2027, as planned by the previous Government. Free allocations are all about carbon leakage and, when we have a carbon border mechanism, clearly, carbon leakage is solved by that instrument rather than by free issue. So will they be phased out in that time?
The Minister will also be aware that, under the trade and co-operation agreement negotiated by the previous Government, there was a strong inference that the UK ETS and the EU ETS should recombine in a single scheme. In fact, one of the issues at the moment is that the UK ETS carbon price is significantly less than the European one. This is due to what I would probably see as an overallocation of free permits.
So my question is: are this Government still considering bringing those two schemes together? This is particularly important at present because, in one year’s time, the EU will introduce its carbon border adjustment mechanism for heavy industry, but, in particular, energy exports will be taken into account by the first phase. If we do not have an equivalent scheme or are not part of a joint scheme, effectively we will be subject to tariffs in terms of those effective carbon charges.
A particular problem with the carbon border adjustment mechanism is the GB-Northern Ireland issue, because there will effectively be a tariff for carbon costs and energy between Great Britain and Northern Ireland. I visited Energy UK one or two weeks ago, and it was particularly concerned about these aspects of the UK ETS into the near future and when the EU moves forward with its well-planned carbon border adjustment mechanism. It is really important to make decisions here and get on with them, because there will be very difficult issues if we do not resolve this over the next 12 months.
Lord Offord of Garvel (Con)
My Lords, this statutory instrument proposes amendments to the UK emissions trading scheme, including expanding its scope to cover CO2 venting for upstream oil and gas operations, lowering the emissions cap and introducing new penalties alongside a flexible reserve mechanism. It is crucial that industries and communities affected by these changes receive the necessary support during the transition period.
The amendments introduced by this order significantly expand the UK ETS. Notably, it will now cover CO2 venting from upstream oil and gas operations, requiring companies in this sector to purchase allowances for their emissions. The adjustment of the emissions cap ensures that the allowances for companies to buy in 2025 will be reduced by 12.4%. By 2027, the number of allowances will fall by 45%, ultimately reaching a 70% reduction by 2030.
I draw noble Lords’ attention to the introduction of new penalties and a deficit notice in this instrument—fines for non-compliance linked to the carbon price, obviously designed to incentivise businesses to meet their obligations. How will these penalties be enforced in practice and are they really proportionate, particularly for industries already facing complex and burdensome regulatory frameworks? Additionally, the establishment of a flexible reserve to buffer against market volatility can be seen as a step towards ensuring stability in the carbon market, but can the Minister explain what assurances the Government can give that this mechanism will not inadvertently lead to market manipulation or instability, rather than solving it?
Requiring oil and gas companies to purchase allowances for CO2 venting could significantly increase their operational costs, placing UK producers at a disadvantage compared to international competitors in regions without similar emissions trading schemes. This could lead to carbon leakage. The Government must address how they plan to mitigate such risks.
Another concern is the regulatory burden. The introduction of additional regulations and financial costs tied to purchasing allowances may create a substantial compliance burden, particularly for smaller operators. It is essential that the Government provide clear guidance and support to ensure that businesses can adapt without undue strain.
On investment and mitigation technologies, while the scheme encourages decarbonisation, can the Minister outline how it plans to incentivise and facilitate the scale-up of carbon capture, utilisation and storage technologies? All these are said to be necessary to keep to the Government’s timetable. Further clarity is needed.
Market price volatility presents an additional challenge. Fluctuating carbon prices expose companies to financial uncertainty. While the flexible reserves aim to stabilise the market, further clarity is needed on how effective this mechanism will be in managing price volatility and ensuring long-term stability.
The introduction of penalties and enforcement provisions raises important questions about fairness and proportionality. Will penalties be applied equally to all operators, or will they be adjusted based on companies’ size or ability to comply? Can the Minister clarify how this will be structured?
It is essential that the Government spell out how they intend to carry through this order without unintended negative consequences for the industry.
Lord Hunt of Kings Heath (Lab)
My Lords, I am grateful to the noble Lords who spoke in this short debate. I will first respond to the noble Lord, Lord Teverson, on international co-operation on carbon pricing. I certainly accept that, as we transition to net zero, it is important that we work across international borders to drive climate ambition. Under the terms of the trade and co-operation agreement, the UK Government and the EU agreed to consider linking our respective carbon pricing schemes and to co-operate on carbon pricing. The noble Lord will know that we are working to reset our relationship with the EU and strengthen ties and improve trade and investment relationships with it, including promoting climate, energy and economic security, while recognising that there will be no return to the single market or customs union.
The Prime Minister visited Brussels on 12 December 2024, and the joint statement with President von der Leyen illustrated that the UK and the EU would take forward this agenda of strengthening co-operation at pace over the coming months. As set out in the TCA, carbon pricing remains an area where we will continue to co-operate, and it is right that we will continue to develop the UK ETS to support our climate goals and support sectors in the transition to net zero.
The carbon price within the EU emissions trading scheme is determined by the market, and it is designed this way because competitive markets are likely to deliver the most efficient transition to net zero across the economy. This will give emitters the flexibility as to how they abate their emissions, thereby allowing businesses to cut carbon where it is cheaper for them to do so.
I assure the noble Lord, Lord Offord, that, as I said earlier, we are here simply building on the work of his Government in just making a sensible adjustment to make sure that there is no free ride in removing the excess allocation of free allocations, as the noble Lord, Lord Teverson, suggested. When the production has been ended as part of a decarbonisation programme, allowing them those free allocations recognises that. We do not think that these rules will lead to disproportionate regulation or that there will be potential manipulation of the market.
On oil and gas, I will write to the noble Lord with further details on his specific question.
Lord Teverson (LD)
I am afraid I do have to come back to the Minister. Is it the Government’s intention to integrate, if they can, the two emissions trading systems? Is that a government goal or not? Also, do the Government still intend to do what the previous Government suggested—to introduce a carbon border mechanism for the UK at the beginning of 2027? This is pretty fundamental stuff that industry and the whole economy need to understand. If the Government do neither of those, how will they solve the problem of the EU carbon border mechanism from the beginning of next year?
Lord Hunt of Kings Heath (Lab)
My Lords, I am not sure that I can respond any further than I have already. Clearly, we are now working with the EU on some of those issues, and clearly we accept the point that we need the systems to work effectively together to deal with wastage. But I am afraid that I cannot give the noble Lord any more certainty than that.
Devon and Torbay Combined County Authority Regulations 2024
(3 days, 16 hours ago)
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Baroness Taylor of Stevenage
That the Grand Committee do consider the Devon and Torbay Combined County Authority Regulations 2024.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government (Baroness Taylor of Stevenage) (Lab)
My Lords, I shall also speak to the Hull and East Yorkshire Combined Authority Order, the Greater Lincolnshire Combined County Authority Regulations and the Lancashire Combined County Authority Regulations.
Regulations were laid before Parliament on 26 November 2024 for Lancashire, as well as for Devon and Torbay. The Hull and East Yorkshire Combined Authority Order was laid on 4 December and the Greater Lincolnshire regulations on 11 December. The other place debated these instruments on 21 January 2025. Knowing how much noble Lords appreciate brevity, I hope they agree—while recognising that combined authorities and combined county authorities are distinct legal bodies with different types of enabling statutory instruments—with me simply using “combined authorities”, unless there is a reason to be specific, over the course of our debate. I hope that that is okay with everybody.
In December 2024, the Government published the English devolution White Paper. At its core, the White Paper sets out how the Government will widen and deepen devolution across England as part of our central mission to drive economic growth and improve living standards. These instruments deliver on that ambition and are significant steps in the devolution journeys for these four areas. The instruments provide for the implementation of the devolution agreements confirmed on 19 September 2024 between the Government and the upper-tier councils in each of the areas concerned. On 18 November 2024, all the respective constituent councils consented to the making of these instruments.
The three sets of combined county authority regulations will be made, if Parliament approves, under the enabling provision in the Levelling-up and Regeneration Act 2023. If approved, the combined authority order will be made under the enabling provision in the Local Democracy, Economic Development and Construction Act 2009. The combined authorities will be established on the day after the day on which the instruments are made.
The Hull and East Yorkshire Combined Authority and the Greater Lincolnshire Combined County Authority have chosen to adopt a mayor for their combined authorities, with the inaugural elections to take place on 1 May 2025. The elected mayors will take up office on 6 May with a four-year term. The instruments make provision for the governance arrangements of the combined authorities. In each case, the constituent councils nominate one or more of their members to form the combined authority, alongside the elected mayor where a mayor is being adopted. Each place has specific arrangements, enabled by either the 2023 Act or the 2009 Act, as set out in these establishing instruments.
For the three combined county authorities, district councils will play a key role in ensuring the success of devolution in these areas. District representation and input to the combined county authorities is determined locally within the framework provided by the 2023 Act. The instruments confer public authority and local authority functions on the respective combined authorities, as agreed in their devolution agreements and set out in each area’s proposals.
Alongside the regulations, we have laid reports under Section 20(6) of the 2023 Act and, for the order, Section 105B of the 2009 Act providing details about the public authority functions being devolved to the combined authorities. These functions include Homes England’s concurrent regeneration functions and powers over transport, as well as mayoral development corporation functions for the mayoral combined authorities.
The agreements include the devolution of certain education and skills functions, together with the adult skills fund. The Government will devolve the adult skills fund to the combined authorities from the 2026-27 academic year. The Department for Education will work with the combined authorities to support their preparations and ensure that they meet the necessary readiness criteria; it will legislate in due course when the Secretary of State for Education is assured that the combined authorities are operationally ready and is satisfied that the required statutory tests have been met in each area.
Baroness Pinnock (LD)
My Lords, I remind the Committee of my relevant interests as a councillor on Kirklees Council in West Yorkshire and as a vice-president of the Local Government Association.
These four statutory instruments are politically and historically interesting. First, they recreate in whole or in part the historic counties of Devon, Lancashire, Lincolnshire and the East Riding of Yorkshire. That is a positive change. It is another reversal of Thatcherite policy, which, in this instance, abolished county councils. Strategic planning and provision of such key local services as public transport, housing and economic development can be much better made across a larger geography. That change is therefore welcome. However, I am not letting the Minister off the hook that easily. I have a number of questions applicable to each of the relevant instruments.
First, on governance, can the Minister confirm that meetings of either the mayoral or the combined county authorities will be held in public and that scrutiny committees are a requirement, with powers for pre-decision scrutiny and to call any decision that is challenged under the relevant procedural rules?
The Devon and Torbay Combined County Authority combines two very unequal—in both population and geography—partners. Can the Minister say whether that disparity has been considered and whether any issues have been raised in the wider county on this point in the consultation, the details of which I obviously have not seen? I ask this because there will be inequality of representation on the authority from these very unequal parts, and I wonder whether that will result in a bit of friction when it comes to making difficult decisions.
I note at this point that, because of the efforts made during the passage of the then levelling-up Bill by the Minister, her team and me, district councils will have representation on the combined authorities by law. That was a very important change to the Bill.
I move on to the Hull and East Riding Mayoral Combined Authority. There will be a mayor from May this year; we will see how that pans out. I recognise the appeal to the Government of having a single person elected to lead a combined authority. However, I and my colleagues are not convinced that, from the residents’ standpoint, this is a positive move. Mayors will be tolerated—this is my experience; I live in a mayoral authority—while there is no mayoral precept and while they are basically determining the details of delegated powers and funding from government. However, when either of those things changes—if there is a mayoral precept of a considerable amount or when there are difficult decisions to be made on funding allocation, which I anticipate will come with bus franchising—I anticipate greater concern from residents that their voice is not being heard.
For instance, in the Hull and East Riding Mayoral Combined Authority area, which I know better, I can easily see that, with the rural parts of East Riding and the very urban area of Hull City Council, it could be difficult to make decisions on allocating funding under the bus franchising legislation, which I hope will be passed. Trouble is coming down the track, I think.
The Greater Lincolnshire Combined County Authority recreates the historic county of Lincolnshire, which is positive. It combines the seven district councils of the current county council, plus the two unitaries of North Lincs and North East Lincs. The issue I want to raise concerns transport funding. In this statutory instrument, the constituent authorities remain the highways authorities but central funding goes directly to the mayor, who then has the responsibility of cascading the funding to each of the three existing highways authorities. Can the Minister describe how fair allocation can be assured and whether using this mechanism will add to bureaucracy by adding yet another layer of governance?
The Lancashire Combined County Authority will, as we know, consist of the existing county council, the unitaries of Blackpool and Blackburn and Darwen, plus the 12 existing district councils of the current county council. We have had the devolution White Paper. If its proposals are accepted—I hope that there will be some challenge to them—this will result in the demise of district councils. For Lancashire and Lincolnshire, this would result in another wholesale local government reorganisation within a short period, with the added confusion that accompanies such structural change. Those of us who are involved understand what might happen; residents will not. Have the Government considered these two separate reorganisations and how they will be managed without causing confusion and additional costs?
As I said at the outset, this is the right move for strategic decision-making. However, I look forward to the answers to my queries from the Minister.
Lord Lucas (Con)
My Lords, I am grateful for the Minister’s exposition of these SIs. I completely understand why we are moving in this direction: greater efficiency and effectiveness. I very much hope that the Government can, as this process moves on, increase the level of effective devolution and perhaps even give some real independence over revenue to these authorities so that they can develop their full potential.
In addition, when we reach Committee on the hereditary Peers Bill, I will propose that, rather than hereditary Peers being the eligible candidates in by-elections, it should be people nominated by these new authorities and their mayors. We can use the existing mechanisms that we have to start to introduce a measure of regional representation into the House. I hope that the Government will have their imaginative hat on when we come to that. The mechanism is in place; let us use it to move in a direction that many of us would like to go in and to take at least a small step.
I am a resident of East Sussex, which is one of the candidates for the next round of this measure. I note that the local proposals involve a mayor for the whole of Sussex, thereby recreating not the original county council but the original kingdom of Sussex—perhaps we might have a prince rather than a mayor. What concerns me most is how the towns and communities in these new unitaries will come to cherish, assert and grow their own identities. I very much hope that I can persuade the Minister to circulate widely to all the councils that are candidates for this, as well as their constituent parts, examples of how communities flourish in unitaries, including what structures and relationships make that happen well.
The process of transition from “a county plus districts” to a unitary system will be hugely time-absorbing for the councils involved. They will have no space in their heads to do anything other than make that work well. The constituent communities underneath that need to understand how to play their part and how best to organise themselves so that they have a real role to play in what comes afterwards.
Looking in particular at East Sussex, along the seaside, we have Rye, Hastings, St Leonards, Bexhill, Pevensey, Eastbourne, Seaford and Newhaven. They are all immensely different places. Each has its own identity and its own way of doing things. In the interior, you have towns such as Lewes, which are really different, as well as ordinary country towns such as Uckfield and Heathfield. There is a huge variety of different communities within what will be one unitary: different histories, different spirits.
Lord Taylor of Holbeach (Con)
My Lords, I have spoken on many subjects in Grand Committee in this Room, and this is the first time that I have spoken on local government. In fact, there is a much better qualified inhabitant of Lincolnshire to speak on this subject—the noble Lord, Lord Porter of Spalding—but he must be away because I phoned him up at the weekend to check whether he was able to do this. However, I feel I should speak on this order because local government is, to my mind, perhaps the most important institution that affects people’s day-to-day lives. Governments talk about the big issues, but delivery of much of the Government’s policy is through local authorities, and it is very important that we get the balance of this right.
I speak as somebody who lives in an area of the countryside that is part of a small market town. I was born in Holbeach and I live in Holbeach—I live in the house that I was brought up in—so I have not moved very far, and the world has sort of moved around me, if noble Lords see what I mean. But I can see the change in local government from even when I was a boy in Holland County Council. Lincolnshire was divided into three parts, with the city, and it seemed to work because there was local interaction between citizens and the local authority. I am not talking about the councillors, but the staff of those councils were responsive to people making contact with them and telling them that there was a pothole in the road. Sure enough, somebody would come along and fix it. It was much more immediate.
There is an interesting thing in Peterborough station. An electrical board has been out of action since Christmas. The central heating in the waiting room has been out of action since that time, and there is a door that was working well before Christmas but is now closed. Fortunately, the door that was not working well before Christmas is now open. When I mention this to people, they all say, “Oh, well, it’s been reported”. How often that happens in life. If we can make local authorities really responsive to people’s convenience, we will do so much better.
I am speaking on this because Lincolnshire is a big county, and I am looking ahead at what will happen when we devolve government powers to the mayor and the mayoral authority, which is very good indeed—at least there is a bit of local knowledge there to help local government to apportion resources. But I represent a particular part that is quite removed from the Humberside end of the county. We are still very much one county. I was president of the Lincolnshire Agricultural Society and am proud to belong to it. I am proud to be a Lincolnshire horticulturalist and farmer, along with so many people in that most productive corner of the country.
I am also pleased to hear that the Humberside authorities are thinking of uniting together as a district of their own. If we are going to have three units in Lincolnshire, we will have to look at the numbers because, at the moment, I am told that 500,000 is the sort of population figure that the Government are thinking of. I hope the Government will be elastic in this area, if only to make sure that there is some sort of general practical application of boundaries to the new district authorities.
I mentioned the noble Lord, Lord Porter of Spalding. He was instrumental in setting up the confederation of East Lindsey, Boston and South Holland, where he and I come from. They have shared senior staff members of councils, co-ordinated activity and shared specialisms. We all know that a lot of the service in local government is quite specialised; if you are going to get good people, you have to pay reasonable salaries, and they are best shared if that can be done.
I hope that any new arrangement for Lincolnshire will have the north, including the Humberside, the west, including the city of Lincoln, the east and the North Sea coast, which will carry the electricity. We were talking briefly about energy beforehand, though I came in halfway through; we know that the power links to the North Sea come ashore in Lincolnshire, to be distributed through the eastern part of the county. It is also the home of the food valley, which stretches from Grimsby right down to Peterborough, the A1 and the road system that is the artery of the eastern part of the county. There is seafood transported from Grimsby and there is the production and distribution of the country’s vegetables and flowers—bulbs, to mention my own interest. We also have centres in the eastern part of the county, so getting communications right and enabling them through a combined vision of what the area represents economically is most important.
The Government are avowedly keen on growth. I support them in that venture. I hope that they set up a local government structure that encourages growth, where soil types and economic potential recommend themselves. In my view, that is how the authorities might develop in future. Surprising to say, I support this measure, as it is a good development. Local government can be reformed, but I hope that it will be in a way that brings it closer rather than further away, as much of the trend was before the last Government introduced the Act.
Lord Jamieson (Con)
My Lords, I am a Central Bedfordshire councillor and therefore have some interest in this, although not in these particular SIs. I echo the comments of the noble Lord, Lord Taylor, about the importance of local government. Most residents see local government services on a daily basis, not central government services. I also echo his comments and those of the noble Lord, Lord Lucas, about the unique nature of all our local areas and, therefore, how much better it is for them to be run locally, in so far as is possible, rather than centrally. In that spirit, these regulations build on the work of the previous Conservative Government; we support this important devolutionary shift, but it is also important to go further.
However, before that, I want to assess some of the proposed changes. First, on the Devon and Torbay Combined County Authority Regulations—I shall say “combined authority” for brevity—that deal was signed in January 2024 by the previous Conservative Government, Devon County Council and Torbay Council to provide powers and funding to the new combined authority to
“improve the economic, social and environmental well-being”
of people in the community, as well as to devolve further powers locally and provide wider flexibility for local action.
The Greater Lincolnshire Combined County Authority, formed by Lincolnshire County Council, North Lincolnshire Council and North East Lincolnshire Council, will have authority over transport, housing and regeneration functions in the region. It will be tasked with transport planning, local transport services and highways maintenance, with a mayor due to be elected in May 2025.
I turn to the Hull and East Yorkshire Combined Authority, which comprises Hull City Council and the East Riding of Yorkshire Council and, again, will be overseen by a directly elected mayor. The mayor will govern and drive strategic development across the region, including in areas such as transport, housing and regeneration. Additionally, the mayor will have the authority to levy taxes, such as a precept or business rate supplement, to fund those projects.
Baroness Taylor of Stevenage (Lab)
I thank noble Lords for all those thoughtful points and for the general support that we have received for the instruments this afternoon. As noble Lords who have heard me speak on this topic before know, and to misquote a phrase terribly, I have always believed in devolution, which is more effective than revolution. I hope we will take this programme forward successfully, but there is a lot of water to go under the bridge—hopefully not so much for these local authorities, which have already taken some very important first steps towards the changes they want to see.
I will take this opportunity to address noble Lords’ contributions and questions, starting with the contribution from the noble Baroness, Lady Pinnock. First, she asked whether meetings and scrutiny committees would be held in public. Meetings of the combined authorities will be in public and, under the Combined Authorities (Overview and Scrutiny Committees, Access to Information and Audit Committees) Order 2017, amended in 2024, combined county authorities have overview and scrutiny committees with the usual call-in powers—so they will have call-in powers. I hope that is helpful from that point of view.
The noble Baroness asked whether the disparity between areas had been considered. She was referring particularly to Devon and Torbay, and the noble Lord, Lord Jamieson, also referred to this. Devon and Torbay were already in the process of establishing their non-mayoral combined county authority prior to the publication of the White Paper and the announcement of the devolution priority programme. We see these steps as foundational. A list of all those that have applied for delays to their elections has been published on GOV.UK—no decisions have been taken yet—and Devon County Council has requested to delay those elections.
Matters to do with the distribution of funding, responding to disparity or the potential disparity between different constituent councils in an area, are for those constituent councils. It is for them to work out how they will work. That is devolution, but they will work it out between them. If they use that as a foundation step, they may wish to build on their authority in the future. Who knows? We will wait and see what happens with Devon and Torbay but, for today’s business, we are putting through the programme that was set before us previously.
The noble Baroness asked whether the change in Hull and East Yorkshire was a positive move from the residents’ standpoint. It is the Government’s ambition that all parts of England ultimately have a mayor. We recognise that non-mayoral devolution can be an important foundational step for areas, which would see the benefits from devolution in the short term as they assess all options to unlock deeper devolution. The instruments before the Committee to establish mayoral combined authorities and a mayoral combined county authority provide that some functions conferred on those will be mayoral functions.
I think the noble Baroness was particularly concerned with transport issues in Hull and East Yorkshire. I will point only to the significant steps forward that have been made in existing mayoral authorities. Manchester of course is always flagged up as the example of this, but it has done an exceptional job to create a transport infrastructure that, so far—touch wood—works much better for the people of Manchester than the situation they had before. I hope that that continues in these new areas as they continue to use and develop their powers. The combined authority will have responsibility for improving and maintaining local transport and for the creation and implementation of a new area-wide local transport plan. We will see what happens with that.
The noble Baroness asked about funding, I think in the context of transport. Funding is conveyed for transport issues in their area, including those that I just mentioned.
The noble Baroness knows that, in the past, I have spoken widely in the House about district councils and their role. When you look at this, you see that there is clearly an appetite for reorganisation in parts of England. I have seen that in my work with district councils and now in government. In the past, Governments have often not been brave enough to follow through and make this programme really work across the country, but we just need to get on now with delivering what areas need.
We expect all two-tier areas and smaller or failing unitaries to develop proposals for reorganisation. We are going to take a phased approach to that delivery, because not everyone is in the same place at the same time. We will have our priority programme for people who feel ready to move more quickly, taking into account where reorganisation can unlock devolution, where areas are keen to proceed at pace, or where they can be helped to address certain issues that they may have failed with in the past. For those that want to take a bit more time, we will do it at their pace. But it is important that this is driven by local areas, so we are working very closely with our colleagues in local government to make this work properly.
The noble Baroness asked about mayoral precepts, and I think the concerns of the noble Lord, Lord Jamieson, also related to that. Mayors can use their mandate for change to take the difficult decisions needed to drive economic growth. As I said, the Government’s ambition is for all parts of England to have a mayor of a strategic authority. They will have the standing and soft power to convene local partners and tackle shared problems, but it is also important that they have this additional ability to raise funds in a number of ways, of which the precept is only one. The Government will work with them as we devolve funds out of Westminster. This is not necessarily about new money; it is about money and decision-making going from here out to local areas. It is important to stress that about the programme we have set out.
I thank the noble Lord, Lord Lucas, for his point about hereditary Peers and having a regional element there. That is above my pay grade; I am not going to go there. But I will say that we already have a very effective chamber of national and regional leaders, which is now convened, and mayors from England attend. It is very important that all areas have a say in the Council of the Nations and Regions, as it will increasingly make a large contribution to what goes on in our country.
The noble Lord specifically mentioned Sussex in relation to local places. I think there is a genuine way of strengthening the role of local places within these wider authorities, where they have existed for a while. I do not want to keep citing Manchester, but there is still a very distinctive identity in Oldham, Rochdale and wherever you go around the Manchester area. Those areas still have their distinct identities. I know Sussex a bit and there are some wonderful places there. I am sure they will continue to be their own places, with their own strong identities. If mechanisms need to be put in place to do that, by strengthening local community councils and improving and strengthening the role of community councillors, the Government are there to assist with that. Boundary issues must be driven locally, but the Boundary Commission stands ready to do what it needs to do to help.
The noble Lord spoke about cherished assets, such as downlands, and how to protect them. There is always a place for a local voice. Mayors have been real champions of these types of local assets, and they will continue to be champions in those local areas. The noble Lord also spoke about independent local panels. We are currently conducting a whole review of standards issues. I have a round table tomorrow, I think, and another at the end of the week, with partners from across local government and outside. We are doing that work as we speak and, if the noble Lord would like to contribute to it, I would love to hear from him.
On the AI issue, I will have to refer to a specialist answer, because it is not my area of expertise. I will find it in a moment.
I thank the noble Lord, Lord Taylor of Holbeach—whom I always think of as Lord Holbeach, because he is Lord of Holbeach—for his huge contribution to Lincolnshire, in both business and horticulture. I agree with him about local government being the most important institution; I have spent most of my life in it. When you walk out of your front door, it is what you see, and what will you the impression of whether or not things are right with the world. That is the way I look at it; that is how important it is. The noble Lord spoke about the confusion between councils. I live in a two-tier area and it is very common to have that confusion between councils. That is one reason why we need to sort this out now: just get on with the job and do it properly.
The noble Lord asked whether there was flexibility with the 500,000 figure. There certainly is. We set the 500,000 figure to give a guideline about what we see as strategic. If something slightly less or more than that works better for the local area, that is fine. I am also grateful to the noble Lord, Lord Porter, for all the work that he has done. The federational, or shared, services that the noble Lord spoke about will form a good foundation for these bigger authorities.
On UK Food Valley, seafood farming, and flowers and bulbs, mayors are there to create the infrastructure that will make that work better than it does at the moment. They will have oversight of a strategic spatial plan and I hope they will do a great job on that.
I turn to the points made by the noble Lord, Lord Jamieson. I agree about the unique nature of local areas. I know that the noble Lord has made a huge contribution to central Bedfordshire, so I am grateful for that. Devon and Torbay and Lincolnshire have both applied for election delays, so they are obviously thinking through their next steps very carefully. Hull and East Yorkshire and Lancashire are going ahead with their programmes, as set out in these instruments.
The noble Lord spoke about mayoral precepts and asked whether they were for genuine additionality. That is certainly the idea; they are not there to fill gaps in local government funding but to drive the mayor’s priorities and ambitions for the area. As we have seen, the areas that already have mayors drive forward their own priorities—and they are very strategic priorities. Mayors are not there to run the councils that sit underneath them; they are there to drive the strategic capability of the area concerned.
I hope that I have covered everything. If I have not, I shall write to noble Lords—and we will look through Hansard to make sure that we have covered everything. These instruments deliver the commitment made in the devolution agreements with Devon and Torbay, Greater Lincolnshire and Lancashire to establish combined county authorities for their areas and with Hull and East Yorkshire for a combined authority. I beg to move.
Hull and East Yorkshire Combined Authority Order 2025
(3 days, 16 hours ago)
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Baroness Taylor of Stevenage
That the Grand Committee do consider the Hull and East Yorkshire Combined Authority Order 2025.
Greater Lincolnshire Combined County Authority Regulations 2025
(3 days, 16 hours ago)
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Baroness Taylor of Stevenage
That the Grand Committee do consider the Greater Lincolnshire Combined County Authority Regulations 2025.
Lancashire Combined County Authority Regulations 2024
(3 days, 16 hours ago)
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Baroness Taylor of Stevenage
That the Grand Committee do consider the Lancashire Combined County Authority Regulations 2024.
House of Lords
Introduction: Baroness Brown of Silvertown
Introduction: Lord Jones of Penybont
Local Government: Funding
(3 days, 16 hours ago)
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Lord Whitty
To ask His Majesty’s Government whether, before or alongside changes in local government structure in England, they will undertake a thorough review of the sources of funding, basis, and equity of local government financial resources at all levels, having regard to both the responsibility of individual councils and the balance of responsibility between central and local government.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government (Baroness Taylor of Stevenage) (Lab)
My Lords, before I answer my noble friend’s Question, I note that, 80 years ago this month, soldiers of the Soviet 60th Army of the First Ukrainian Front opened the gates of Auschwitz-Birkenau. It has been so moving today—Holocaust Memorial Day—to hear in our media the first-hand accounts of those who may be visiting Auschwitz for the last time. That infamous camp has become the symbol of the Shoah. Today, we remember the Jewish lives, and all lives, lost to genocide, and we remind ourselves that it is more important than ever to keep our humanity and respect for human dignity at the heart of all we do.
In answer to my noble friend: alongside our proposals to widen devolution and streamline local government structures, this Government are making good on their promise to reform and improve the local government funding system. From 2026, funding will be directed to where it is most needed, through the first multiyear settlement in a decade. By fixing the foundations, we will give better value for taxpayers and empower local government to provide high-quality services and support the delivery of the Government’s missions.
Lord Whitty (Lab)
My Lords, first, I am sure that the whole House endorses my noble friend’s opening words. It is indeed a moving day.
On my Question, the biggest problem for local authorities is not structure or assessment. This Government and every other Government depend on local authorities’ ability to deliver many of their most important policies and strategies, and yet local government depends on an archaic system of local taxation—both council tax and business tax—and uncertain grants from central government. I hope the assessment that my noble friend refers to will begin to change that system, but does my noble friend not agree that a fundamental assessment of what local authorities need should be introduced so that we can start to improve the financial position of local authorities before the end of this Parliament?
Baroness Taylor of Stevenage (Lab)
I thank my noble friend. For 12 of the last 14 years, I was a local government leader, so his words definitely strike home to me. The Government are committed to local authority funding reform, with the updated approach that I spoke about from 2026 to 2027. We need to fix the foundations that he spoke about, so this will be developed in partnership with the sector and based on the principle of giving councils early certainty of their funding and a much fairer funding picture across the country. We are inviting views on our principles and objectives for funding reform through a consultation. We want to do this in consultation with the sector, and that consultation closes on 12 February. We will move towards an updated system and possible transitional arrangements to determine how local authorities reach their new funding allocations.
Lord Wallace of Saltaire (LD)
My Lords, we on these Benches share the view of the importance of remembering the Holocaust on this anniversary.
The Minister will be aware that centralisation of taxation in this country is far greater than in any other advanced democracy, and if finance is centralised, decisions will continue to be centralised. Is it not time for the Government to consider fundamental tax reform, in particular of the way local councils are funded? Will the Minister also consult her colleagues on whether we need a cross-party approach to tax reform for local authorities rather than having a tourist tax here and parking charges there, and otherwise depending on the Treasury to dole out funds?
Baroness Taylor of Stevenage (Lab)
The noble Lord makes a very important point about working on a consensus, which is why we have launched the major consultation on how we should take this forward. In addition, our English Devolution White Paper, which we published in December, sets out our plans to reset that balance between central and local government. That includes both funding and powers, and it is a new framework for English devolution that attempts to move power out of Westminster and back to those who know their areas best. That is the whole purpose of the devolution agreement. We want to see that done on the basis of it coming from the local areas upwards. We are committed to fixing those foundations, and we will do that with the people in our local areas and not to them.
Lord Young of Cookham (Con)
My Lords, on that devolution framework that the noble Baroness just referred to, the Minister in the other place said:
“That is why we are moving power out of Westminster and putting it back into the hands of those who know their area best”.—[Official Report, Commons, 16/12/24; col. 36.]
But power involving money was not devolved, leaving local authorities, as the noble Lord, Lord Whitty, said, dependent on a council tax which is regressive and 30 years out of date and business rates which are killing the hospitality and retail industries. Do we not need a much more fundamental review than the one the Minister just referred to?
Baroness Taylor of Stevenage (Lab)
The English Devolution White Paper sits at the heart of the reform we want, and that will involve both funding and money. I understand the pressure for urgent reform of council tax, but we have to be committed to keeping taxes on working people as low as possible. It is for local authorities to decide where they set their council tax. The Government will consider longer-term options to improve council tax billing and all those things, but council tax is a well-understood tax and it has very high collection rates. In terms of business rates, we published a discussion paper, Transforming Business Rates, which set out the priority areas for reform. We have had very good engagement on that and we will publish our update in due course.
The Earl of Clancarty (CB)
My Lords, what guarantee can the Minister give that the most locally funded arts and cultural services—including libraries—such as at district council level, will not be further lost in this reorganisation, against a background where, it has to be said, cuts to such services are continuing in many localities?
Baroness Taylor of Stevenage (Lab)
As the noble Earl said, arts and leisure services took an absolute bashing as local government funding was successively cut over recent years. The purpose of devolution is to put control for that back into local hands and to make sure that more of the money spent in Westminster gets spent in the local areas to protect the services that people really care about and feel are important to them. I hope that will include those key leisure, arts and cultural services that make life around this country so rich and wonderful.
Lord Jamieson (Con)
My Lords, I associate these Benches with the noble Baroness’s comments earlier.
I refer to my interests as a central Bedfordshire councillor. A recent survey published by Southwark Council revealed that 61% of councils have already cancelled, paused or delayed housebuilding projects and more than one-third have cut back on repairs and maintenance of council homes due to pressures on their housing budgets. In light of this and given the Government’s ambitions for housebuilding, will the Minister tell the House how this Government will support councils to build?
Baroness Taylor of Stevenage (Lab)
I have to say that it is very difficult to take lessons from the Benches opposite about local government funding, particularly in relation to council house building. The noble Lord will be well aware of the steps we have already taken to increase overall funding for local government but also that we have taken big steps to alter right to buy so that local authorities can keep 100% of the receipts they get from right-to-buy properties. We are changing the position on new properties built by local councils so they do not have to sell them at less than they built them for. We are fixing the foundations of a very broken system that we inherited from 14 years of the noble Lord’s Government.
Lord Watts (Lab)
My Lords, the last Tory Government spent 14 years taking money from the poorest local authorities and giving it to the richest ones. Will the Minister guarantee that the system that comes forward will be fair and be based on the need to spend?
Baroness Taylor of Stevenage (Lab)
My noble friend is absolutely right. The review that we are undertaking as part of the spending review in the spring will do just that. We made some steps forward in this year’s settlement; we need to take further steps in that regard, and the local government funding formula will be reset to take account of need.
Baroness Eaton (Con)
My Lords, I declare my interest as a vice-president of the Local Government Association. With Labour’s increase in employer national insurance contributions, LGA analysis confirms that the cost to local government will be around £1.7 billion next year. The provisional local government finance settlement confirms that councils will be compensated to the tune of £515 million for 2025-26, well short of the £1.7 billion. Can the Minister confirm from the Dispatch Box whether this compensation funding is a one-off, or will it be continued in future financial settlements? How does she expect local authorities to compensate for the shortfall?
Baroness Taylor of Stevenage (Lab)
As I said, the decision that we took around national insurance contributions was to fill the gap from the £22 billion black hole that was left by the Government of the Benches opposite. We continue to work on fixing those foundations and making the economy stronger. The noble Baroness asked specifically about the £515 million of support that we have provided to local government. That is in addition to other sources of funding that we gave to local government. Whether that will continue into future years will be the subject of the spending review in the spring. We will look at all aspects of local government funding so that we continue to fix and sort out the mess that we were left with.
Avanti West Coast
(3 days, 16 hours ago)
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Lord Bradley
To ask His Majesty’s Government what plans they have to review the service provided by Avanti West Coast between Manchester and London.
The Minister of State, Department for Transport (Lord Hendy of Richmond Hill) (Lab)
My department is clear that the performance of Avanti West Coast has not been good enough. Officials routinely meet Avanti and Network Rail as part of a relentless focus on improving railway performance, bringing together track and train far more than previously and holding both sides accountable. The Secretary of State met the managing director in January to understand Avanti’s plans to address industrial action. I will meet him, together with the Network Rail route director, on Friday, to further discuss performance.
Lord Bradley (Lab)
I thank my noble friend the Minister for that reply and note my interest as a weekly user of Avanti trains and praise the many excellent staff on these trains and the brilliant services provided by Stockport booking office. However, the performance during November and December 2024, as the Minister has mentioned, was utterly woeful and frustrating. Journey after journey was subject to huge delays, with numerous cancellations and subsequent declassification throughout the trains, standing room only or people sitting on the floor of the carriages, and no refreshments, not even the smallest bottle of water, throughout the train. On behalf of Avanti’s long-suffering passengers, will the Minister carefully study again the contract at his meeting with management later in the week, to end this misery and ensure that customers and taxpayers get the value for money that they so deserve?
Lord Hendy of Richmond Hill (Lab)
I strongly sympathise with my noble friend on his experiences in his weekly travelling. My postbag, email and every other means of communication is full of criticism of Avanti West Coast. It was given a contract for three years in October 2023. I assure noble Lords that as hard as we look at the contract, the company has not yet failed to meet the performance target standards that the previous Government set it.
Lord Evans of Rainow (Con)
My Lords, I pay tribute to Macclesfield station staff for their excellent work. I have an idea for how we can monitor the number of delays. There is something called Delay Repay. Does the Minister know much how is paid out by Avanti to passengers? If not, perhaps he could let us know. It may be a good thing for him to keep his eye on, for key performance indicators in terms of staffing and getting staff to work—particularly at weekends.
Lord Hendy of Richmond Hill (Lab)
I will have to write to the noble Lord about the amount of Delay Repay. I have statistics here about the number of trains on time and the number of trains cancelled. Although the number of trains being cancelled has been reducing, it is still far too high. Passengers dislike cancelled trains even more than they dislike them being later than in the timetable. I will write to him and put a copy of that letter in the Library. However, I think that the evidence of Delay Repay is the same as the evidence of the performance statistics—that the performance is just not good enough.
Lord Goddard of Stockport (LD)
My Lords, Avanti has a simple objective in life: to supply three hours of train from Manchester to London. It is not complicated. It is a straight line. I will give a snapshot of this weekend. On Friday morning, the 8.43, a peak-time train, was cancelled with 20 minutes’ notice. On Saturday, five trains were cancelled due to a lack of staff or extra maintenance being required on trains. This morning, the 8.43, a peak-time train, was again cancelled. Five more trains back to Manchester were cancelled this afternoon. It is utterly unacceptable. I feel for the staff, who try to give us a good service every day on the up and down journey, but the management is lamentable. If you gave Avanti a local pub in London with a 24-hour licence, free beer and free food, it would still not make a profit. It is astonishing. I am lost for words.
Lord Goddard of Stockport (LD)
I am rarely lost for words. Seriously, the customers are at the heart of this, day in, day out, with children, having the service that the noble Lord, Lord Bradley, has described. It is unacceptable. I hope that the Minister will take cognisance of what is going on. This is nothing to do with the weather, strikes or lines. This is incompetent management.
Lord Hendy of Richmond Hill (Lab)
The noble Lord is clearly not lost for words. However, it is not within my gift to award free tenancies of public houses in London—probably wisely. A lot of what he says is right, and I will reflect on that with the Avanti management on Friday. My only cautionary note is that the effect of the storms on Friday and Saturday has led to significant disruption to most of the railway in northern England and certainly in Scotland. I have some sympathy with train operators in those circumstances, because there are occasions on which their staff cannot get to work simply because of the effects of the wind and associated damage. One should therefore be a bit careful. As a former operator of public transport, I know that it is sometimes difficult to get the right staff in the right place at the right time, when those circumstances happen. When they do not happen, however, you would expect train operators such as Avanti to have sufficient staff to be able to resource the service and have some reserve of resilience to keep it going in difficult circumstances. I sympathise entirely with what the noble Lord says.
Lord Liddle (Lab)
My Lords, I speak as another regular Avanti user. Has my noble friend noticed that, increasingly, the company seems to regard the northern point of its franchise as Preston, without running trains on to Carlisle and Glasgow, which has very damaging effects for tourism in the Lake District and the Borders? Is this not a breach of its franchise obligations? I notice that Avanti is now telling us that, because of Network Rail improvements, the railway will be closed at certain points in the next two or three years. Is it not the case that it must be deprived of its franchise? It is just not doing its job.
Lord Hendy of Richmond Hill (Lab)
I thank my noble friend for that question. Indeed, I have discussed with him and others the rather too frequent regularity of cancellations north of Preston. I will not reiterate what I have just said about the effects of the storms last week. There have been other occasions when the railway infrastructure has not been up to withstanding the weather and storms. However, I agree with my noble friend, as I agreed with the noble Lord, Lord Goddard, that one expectation of those who run railway services for the department is that there should be sufficient resilience in what they do to cater for the exigencies of normal operation. It is this that I will be discussing in some detail with Avanti and Network Rail on Friday.
In respect of the future renewal and upgrade of the west coat main line north of Preston, the news that was in the papers in the past few days is premature because it was Network Rail’s proposition to renew the overhead wires between Preston and the Scottish border. The arrangements are not yet agreed, and the release of that information to the public—I think by one of the train operators—was premature. That was industry’s consultation, and there will be more to be said about it at a future date.
The Earl of Effingham (Con)
My Lords, I would simply like to ask the Minister exactly the same question that many of his own noble friends felt it was fair and reasonable to ask us when we were working hard to solve the Avanti issue. The noble Lord, Lord Snape, asked:
“What will it take for the Government to do their job and relieve Avanti of any responsibility for being involved in our railway system?”.—[Official Report, 26/10/22; col. 1527.]
The noble Lord, Lord Liddle, asked:
“Why have the Government not acted, as a decisive Government would, and withdrawn the franchise from these disastrous operators?”.—[Official Report, 1/12/22; col. 1947.]
Finally, the Captain of the Honourable Corps of Gentlemen-at-Arms, the noble Lord, Lord Kennedy of Southwark, asked
“why the Government are not doing something immediately to end this shambles and outrage on one of our country’s major lines?”.—[Official Report, 7/9/22; col. 261.]
Lord Hendy of Richmond Hill (Lab)
The answer to those questions is that the contract that these people have been given does not allow the withdrawal of the franchise for performance that many people in this House think is lamentable. Of course, the other action that the previous Government took was to allow Avanti to offer an extraordinary amount of money—£600 to drivers working rest days—which has been the subject of much criticism ever since, particularly recently, but is rarely attributed to the previous Government’s action in allowing Avanti to pay it.
Children’s Rights
(3 days, 16 hours ago)
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Baroness Lister of Burtersett
To ask His Majesty’s Government what role children’s rights will play in their plans to improve children’s wellbeing and opportunities.
The Minister of State, Department for Education (Baroness Smith of Malvern) (Lab)
My Lords, children are at the heart of this Government’s ambitions. We will deliver lasting change for all children, particularly those from disadvantaged backgrounds. From April 2025, we are nearly doubling investment in preventive services, with over £500 million to deliver family help and child protection reforms. Children should remain with their families, and where they cannot, we will support more children to live with kinship carers or in fostering families, helping to ensure their rights to loving families.
Baroness Lister of Burtersett (Lab)
My Lords, I warmly welcome the renewed commitment to child-centred government, although I am disappointed that my noble friend said nothing about children’s rights as such. In view of UNICEF UK’s statement that children’s rights should be central to plans to improve children’s well-being and opportunities and of the many criticisms made of the previous Government’s record by the UN Committee on the Rights of the Child, can my noble friend say what steps are now being taken to implement that committee’s recommendations to better protect and promote children’s rights and, in particular, its call for mandatory child rights impact assessments to improve policy-making and legislation relevant to children?
Baroness Smith of Malvern (Lab)
My noble friend is right that we must consider children’s rights in all our policy-making, and the Government recognise the importance of considering children’s rights in that way. That is why, in the department, we are continuing to encourage policymakers across government to carry out children’s rights impact assessments when they are making policy changes and, with respect to the Children’s Wellbeing and Schools Bill, we have conducted child’s rights impact assessments where children are directly impacted by the policies, or where there are particular groups of children and young people more likely to be affected than others, and we will publish those child’s rights impact assessments.
Baroness Walmsley (LD)
My Lords, is the Minister aware that the most recent UN assessment of the UK’s compliance with the UN Convention on the Rights of the Child expressed concern about the large number of children living in food insecurity and recommended
“increasing social benefits to reflect the rising cost of living”?
In light of this, why has the value of free school meals not risen in line with the cost of food? In real terms, it is now worth 16% less than it was in 2014.
Baroness Smith of Malvern (Lab)
The noble Baroness is right that, for many families and children, the availability of free school meals is very important. That is why we continue with the programme for all pupils in reception, year 1 and year 2 to be entitled to universal infant free school meals. In addition to that, 2.1 million disadvantaged pupils receive free meals on the basis of low income. This Government will also introduce breakfast clubs in every primary school. We will keep our approach to free meals and the quality and amount of them under continued review, including through the work of the Child Poverty Taskforce.
Lord Laming (CB)
My Lords, the most fundamental right of a child in this country is to be protected from abuse and exploitation. Time after time, all the reports about this indicate that the collaboration between the front-line services has deteriorated markedly in recent years. Can the Minister assure the House that, in looking to the future, a great emphasis will be placed upon the different public services working collaboratively in the interests of the well-being of the child?
Baroness Smith of Malvern (Lab)
The noble Lord has an important and distinguished history in challenging Governments and safeguarding children, and he is absolutely right that we must protect children at risk of abuse, particularly by stopping vulnerable children falling through cracks in services and ensuring that we always know where they are if they need protection. That is why, for example, in the Children’s Wellbeing and Schools Bill, we will support professionals to keep children safe, in particular by making provision for a consistent identifier for every child and for a requirement to establish multi-agency child protection teams for each local authority area, ensuring, as he quite rightly asked, that staff and agencies are working closely together to protect children most in need of that protection.
Baroness Chakrabarti (Lab)
My Lords, we have one of the lowest ages of criminal responsibility in the world: in England, Wales and Northern Ireland, it is just 10, and in Scotland it is 12. Troubled children are children in need, not criminals. Will the Minister consider a potential review of those ages to make those children less vulnerable and better able to be protected by agencies and authorities in the future?
Baroness Smith of Malvern (Lab)
In line with the UNCRC, we recognise the age of a child in the UK as being under 18 years of age. In that way, children are treated differently from adults. However, we do have an age of criminal responsibility of 10, and we do not intend to change that at this time.
The Lord Bishop of Lincoln
My Lords, Article 28 of the UN Convention on the Rights of the Child recognises the fundamental right of all children to a free primary education and access to different forms of secondary education. Noble Lords may know that 1 million children are educated in Church of England schools at the moment, and the Church of England’s vision for education is rooted in a Christian ethos for the common good and the holistic well-being of every child, including those of all faiths and none. The Statutory Inspection of Anglican and Methodist Schools framework, which informs best practice in church schools, has a strong and effective focus on children’s rights in accordance with Article 28 in the UN convention. Will the Minister ensure that the substantial and compelling learnings from church schools can be highlighted and shared within her department’s ongoing review of potential reforms to current accountability measures?
Baroness Smith of Malvern (Lab)
The right reverend Prelate is right that there are very many children receiving excellent education in schools run by and sponsored by the Church of England, including the school that I attended—although I think that the accountability and inspection regime has probably been updated since then. I can certainly assure him that we will want to learn from good-quality inspection and accountability, such as he has outlined, in taking forward our reforms.
Baroness Barran (Con)
My Lords, the Minister talked about the use of child rights impact assessments for the Children’s Wellbeing and Schools Bill. I want to raise the issue of the very concerning rise in deprivation of liberty orders for children, particularly their increasing use for very young children, apparently as young as seven. There is currently no age differentiation in the Bill and, unlike in the case of secure accommodation, a child can be deprived of their liberty without the authorisation of the Secretary of State. Can the Minister respond to that, and to the calls from the Children’s Commissioner that the legal framework should be strengthened to protect those very vulnerable children, particularly those with disabilities and at risk of exploitation?
Baroness Smith of Malvern (Lab)
The noble Baroness is right that the lack of suitable provision for children with complex needs, as well as some secure children’s homes, is a very key part of the reason why there has been a big increase in the number of deprivation of liberty orders. That is why our programme of work, including the legislative changes and capital investment, is focused on improving the outcomes for those children. We will, as she identifies, be looking at the legislative framework for deprivation of liberty orders, and I will take on board the point she makes about the particular challenges for very young children. I am sure that we will have the opportunity to debate this in more length and detail when the Children’s Wellbeing and Schools Bill comes before this House.
Lord Laming (CB)
My Lords, another right a child has is to have a good education. The number of absences, especially among young children, is becoming seriously worrying. Will the Minister—I know that she cares about these matters—assure the House that, in moving forward, real attention will be given to attendance at school, because it is in the law—since 1948? We have had a law for attendance for a long time in this country. Please make sure it happens.
Baroness Smith of Malvern (Lab)
The noble Lord is absolutely right that we have a crisis of absence. Children cannot be properly taught, and in some cases they cannot be properly protected, unless they are attending school. That is why we have a wide-ranging set of policies to address that: the better use of data; the revised guidance; and a more granular focus on those schools that are doing well and those schools that are doing less well. The introduction of breakfast clubs in every primary school will also help to encourage children to arrive earlier in school and to be provided with the support to perform better when they are there.
Internet Activity: Energy Use
(3 days, 16 hours ago)
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Viscount Stansgate
To ask His Majesty’s Government what assessment they have made of the amount of energy used in internet activity, and in particular in mining cryptocurrencies.
The Minister of State, Department for Energy Security and Net Zero (Lord Hunt of Kings Heath) (Lab)
My Lords, the National Energy System Operator has estimated that data centres consume around 2.5% of the UK’s electricity. The UK is not a major centre for cryptocurrency mining. We estimate the share of power consumed in the UK for this purpose to be negligible.
Viscount Stansgate (Lab)
I thank my noble friend for that Answer. I do not know whether the House quite realises the staggering quantities of energy involved in normal internet activity and, in particular, in crypto mining. It has been estimated that the usage is approximately the same as that of a mid-sized European country, such as the Netherlands or Denmark. How much of this activity is based in the UK? Who is doing it and where? Does my noble friend agree that it has an adverse impact on carbon emissions and brings with it electronic waste? Will he agree to undertake an assessment of the potential adverse effects on carbon emissions of internet activity and, in particular, of crypto mining, so that we can have an honest discussion about the future and the effect of this on our climate change objectives?
Lord Hunt of Kings Heath (Lab)
My noble friend is right to raise this important question. I should say that the Government keep this under review. In fact, we reckon that only 0.2% of global crypto mining takes place in the UK. The International Energy Agency has estimated that, in 2022, 2% of total global energy demand came from data centres, cryptocurrencies and AI. It expects that to double by 2026. However, it makes the point that it expects that doubling to be met by an increase in clean energy sources. The lesson here for us is that we need to power on with our aim to get to clean power by 2030.
Lord Clement-Jones (LD)
Despite the Minister’s earlier Answer, nevertheless the Government are keen to see the building of data centres. Will the need for additional energy consumption form part of the National Energy System Operator’s strategic spatial energy plan and the centralised strategic network plan? What assumptions are being made about the sustainability of the energy sources needed for those data centres?
Lord Hunt of Kings Heath (Lab)
The work of NESO in mapping out how we get to clean power by 2030 is the start of this process, and we will keep those matters within the review. We are working very hard with the network companies and Ofgem to accelerate investment and reform in the grid and in connection. That is a crucial matter in wanting to see an expansion of data centres in the UK where we have a significant advantage and an increasingly important market.
Lord Holmes of Richmond (Con)
My Lords, I declare my technology interests as set out in register. Does the Minister agree that, going broader, we need far greater transparency about all the power that it takes to fuel these new technologies—compute power, energy power, and financial and natural resources? Is it time that we reviewed the power usage effectiveness measure, or PUE, for data centres? Is it the case that all these new technologies need to be considered not just in respect of how efficient they are and how effectively they are fuelled but, crucially, that this is done in a sustainable manner?
Lord Hunt of Kings Heath (Lab)
My Lords, I certainly accept the challenge from the noble Lord: as we wish to see the encouragement of data centres and the use and development of AI in the UK, clearly we want it to be sustainable. I make the point that, in the first place, newer cryptocurrencies use less energy than the original ones, and, secondly, that data centres are increasingly looking to energy efficiency methods. AI can be used as one way in which to improve our management of energy efficiency.
Lord Patel (CB)
My Lords, the Minister said that current data centres use about 2% of total electricity generation. Can he quantify that in respect of how many terawatt hours are currently being used by data centres? With the Government’s ambition for AI and the development of more data centres, what will be the requirement in terawatt hours by 2030?
Lord Hunt of Kings Heath (Lab)
My Lords, my understanding is that NESO has estimated that 7 terawatt hours will be used by data centres in 2025, rising to 22 terawatt hours in 2030 and to 62 terawatt hours in 2050. As a comparison, it expects annual electricity demand in 2050 to be between 533 and 700 terawatt hours.
Lord Spellar (Lab)
My Lords, the expansion of data centres will require a significant expansion of the grid and of energy sources. In a written reply to me, the Minister indicated that, for the high-level grid, there is something like a four-year lead time for securing equipment. Furthermore, on energy sources, data centres need reliable sources of supply. Inevitably, that will mean the development of nuclear power, including small modular reactors. When will the Government get on and make a decision about the future of the small modular reactor programme?
Lord Hunt of Kings Heath (Lab)
My Lords, I agree with everything my noble friend said. He knows that we have a programme within Great British Nuclear to appraise the technology involved in a number of shortlisted small modular reactors. It is making considerable progress. We expect further announcements to be made in spring. My noble friend will understand that there are discussions taking place within the spending review.
Captain of the King’s Bodyguard of the Yeomen of the Guard and Deputy Chief Whip (Baroness Wheeler) (Lab)
We will hear from the Green Party.
Baroness Bennett of Manor Castle (GP)
My Lords, the Minister has already acknowledged the energy demands and pressures. The noble Viscount, Lord Stansgate, raised the issue of mining and the resource use going into data centres. I would add a further one to that: water use. A typical data centre uses the same amount of water as 100,000 homes. We have a situation where seven out of 17 regions in England are expected to have water stress by 2030, rising to 12 by 2040. Are the Government considering ensuring that all new data centres use closed systems for water, so that we do not put more pressure on this vital resource?
Lord Hunt of Kings Heath (Lab)
My Lords, in wishing to develop their projects, these are the matters that data centre operators have to keep under consideration. If we are interested in the growth of the UK economy, we should welcome the potential in the UK, and build on what has already been achieved, through data centres and through artificial intelligence. We should look at the amount of money that has been spent in those areas and at the number of highly skilled jobs that are being used to employ many good people.
Lord Lilley (Con)
My Lords, will the Minister explain why electricity in this country is more expensive than in any other OECD country?
Lord Hunt of Kings Heath (Lab)
My Lords, I think the noble Lord is in a better position to explain, since that was the position we inherited from his Government. It is our view, as well as that of the Committee on Climate Change, NESO and many other bodies, that the best way to get stability and then reductions in prices is to move fast to clean power.
Lord Offord of Garvel (Con)
My Lords, the stark reality is that the green policies of successive UK Governments, however well-intentioned, have come at a prohibitive cost to the UK economy. The average UK industrial energy price is now five times that of the USA and seven times that of China. The sad reality is that the UK is locked out of the digital revolution in crypto and AI. Does the Minister think there are lessons that can be learned from the new US Administration’s approach to energy supply? Does he agree with me that this is now the time for common sense to prevail? Will he please go to the Department for Energy and persuade his boss to drill, Mili, drill?
Lord Hunt of Kings Heath (Lab)
My Lords, I suspect that the experience in the US will rather depend on the price of oil and gas than on any other intervention. Let me quote the figures. In the AI market, we have 3,000 companies, with £10 billion in revenues, and 60,000 people working in the industry. In data centres, 17,000 people are directly employed, with a total revenue of £4.6 billion a year. These are two very successful industries. Developments are taking place at the moment which will continue in the future. This Government will support them in so doing.
Institute for Apprenticeships and Technical Education (Transfer of Functions etc) Bill [HL]
(3 days, 16 hours ago)
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Baroness Smith of Malvern
That the amendments for the Report stage be marshalled and considered in the following order:
Clause 1, Schedule 1, Clause 2, Schedule 2, Clause 3, Schedule 3, Clauses 4 to 13, Title.
Competition and Markets Authority Chairman
(3 days, 16 hours ago)
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Lord Sharpe of Epsom (Con)
My Lords, the Chartered Institute of Personnel and Development has called on the Government to conduct a meaningful consultation with businesses. Instead, the Government convened the regulators to seek advice on how to drive growth. Is the Minister aware that the union-authored Employment Rights Bill will create another raft of regulations which will further weaken an already damaged employment landscape? As a business founder and employer, does she believe that that Bill, which is due in your Lordships’ House soon, will really drive the growth agenda?
The Minister of State, Department for Business and Trade and Treasury (Baroness Gustafsson)
My Lords, commenting to the regulators about supporting the Government on their number one ambition of growth is entirely appropriate. Effective regulation is essential to delivering growth. The Prime Minister has been clear that regulators have a vital role to play, and that includes the CMA. I do not believe that working on things like the workers’ rights Bill is at contradiction with the terms of both powering economic growth and making sure that our workers are protected.
Lord Clement-Jones (LD)
My Lords, I welcome the Minister to Questions. The Chancellor has said that every regulator, no matter in what sector, has a part to play by tearing down the regulatory barriers that hold back growth. Given the Minister’s background, she will understand the benefits of strong and healthy competition in the digital economy, particularly for SMEs. What assurance can she give the House that the sacking of the chair of the CMA and the appointment of Doug Gurr, a former country head of Amazon, which itself is subject to current and recent CMA investigations, will not lead to weaker competition and consumer protection enforcement? Are the Government still committed to the new digital markets regime that we have all taken several years to install? Are they now going soft on US big tech in a whole range of digital services—operating systems, app stores, browsers, search engines, digital advertising and cloud services—or are we meant now to include our UK SMEs among the so-called blockers?
Baroness Gustafsson (Lab)
I thank the noble Lord for his question, which I have broken down into four points that I hope to address. First, I thank him for his welcome; it is very much appreciated, and it is a pleasure to be here answering questions in front of noble Lords. Secondly, I do not accept the characterisation of us sacking the chair of the CMA; Marcus Bokkerink resigned as chair and the Government are committed to the operational independence of the CMA. Thirdly, on whether the CMA is going soft, especially regarding digital markets, the CMA has new powers under the Digital Markets, Competition and Consumers Act and is already using them fervently for investigations into Google and Apple. The Government are committed to the independence of the CMA and making sure that we create an industry that is open to free and fair competition.
Lord Lansley (Con)
My Lords, the newspapers all seemed to think it was relevant to cite the decision of the CMA in relation to Microsoft and Activision in the Government encouraging the chairman to step down. Does the Minister agree that, in standing up to Microsoft over Activision and the cloud gaming market, the CMA was doing what it ought to do, which is promoting and maintaining effective competition in cloud gaming services?
Baroness Gustafsson (Lab)
I agree that the role of the CMA is to make sure that it is providing fair, open and transparent competition within all industries. While I will not comment on the specifics of any individual case, I think the CMA in that example is doing its best to represent that competition. The Government will continue to stand by that; supporting the CMA’s operational independence, so that it can carry on doing that role as effectively as it can, is something that this Government prioritise.
Baroness Wheatcroft (CB)
How does the Minister expect the CMA to balance the desperate search for short-term growth with the long-term needs of consumers? Is there not a risk of a repeat of what light-touch regulation in financial services produced, leading to the 2008 financial crash?
Baroness Gustafsson (Lab)
I do not think this is about short-term growth. This Government are committed to prioritising long-term sustainable growth, and I think that goal unifies us all. The regulators have a part to play in that, which is making sure that they are reviewing the regulations through the lens of growth and understanding whether they are still fit for purpose. This is not about tearing down regulation for regulation’s sake; it is about viewing it through the lens of our goal as a Government and making sure it is aligned to that.
Lord Watts (Lab)
My Lords, many of us think it is about time that we had accountability for regulators. The regulators appointed by the previous Government failed to protect the public or boost the economy. Do we not need proper regulation to be applied and to make sure that the regulators are on the side of the public?
Baroness Gustafsson (Lab)
I thank my noble friend for that question. He is right; regulation and growth need not be mutually exclusive. This is about creating sustainable long-term growth that protects not only consumers but businesses, so that they have a fair, competitive and open ground on which to compete.
Lord Fox (LD)
My Lords, whether you characterise the change in chairmanship of the CMA as a sacking or not, all the government statements are clearly designed to create a change in behaviour within the CMA. If this change of behaviour had been applied for the past two years, say, could the Minister tell us which decisions the CMA made would have been different? How much more growth would we have had over those two years, had the CMA been applying the Government’s new strictures?
Baroness Gustafsson (Lab)
I come back to a prior answer; this is not about how we look at independent tactical decisions on a case-by-case basis and reflect on what would or could have been. This is about no longer accepting dormant growth within the economy, viewing our regulators through the lens of how we create long-term sustainable growth and making sure that we are aligned with that. To that end, we are consulting on a new strategic steer regarding the CMA, which is expected soon.
Baroness Stowell of Beeston (Con)
My Lords, I welcome the CMA’s recent commitment to review its approach to mergers and acquisitions and would welcome any further moves in that direction. Can the Minister tell the House what, in the implementation of the digital markets and competition regime, she has asked the new chairman to prioritise in support of UK businesses and economic growth?
Baroness Gustafsson (Lab)
As has been referred to, the CMA has new powers under the Digital Markets, Competition and Consumers Act. There has been no change regarding that specific policy. We have a consultation open around the strategic steer for the CMA as a whole. That is something we are expecting soon, but is more around the ongoing direction of the CMA.
Lord Bridges of Headley (Con)
My Lords, last weekend at Davos, the Chancellor said that growth trumps net zero. If that is the case, will the Government review and revise regulators’ remits to reflect that?
Baroness Gustafsson (Lab)
I thank the noble Lord for his question. As I reflect on my experience in driving investment, I do not think the two need to be mutually exclusive. When I reflect on our successes with driving investment, the green energy sector is a region in which we have seen considerable successes. This does not need to be a choice between one or the other. Executed correctly, there is an opportunity for us to drive growth while supporting sustainable energy initiatives.
Lord Berkeley (Lab)
My Lords, a large number of SMEs supplying Amazon have been complaining about its attitude, saying how very unfair it is and how anti-competitive some of Amazon’s policies are. Given that the new chair comes from Amazon, can the noble Baroness say that he will not bring those bad tendencies from Amazon into our wider competition environment?
Baroness Gustafsson (Lab)
I can hopefully provide some reassurance to my noble friend. There have already been instances where we are investigating Amazon regarding the supply of knives. There is no indication that we have any intention to go soft on these big technology companies. The new chairman’s role and experience within this industry, as well as other experiences such as the directorship of the Alan Turing Institute, will provide a wide raft of experience, which can only be advantageous and beneficial to the role.
Attorney General’s Office: Conflicts of Interest
(3 days, 16 hours ago)
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Lord Wolfson of Tredegar (Con)
My Lords, in the other place, the Solicitor-General said that there was a rigorous system for managing conflicts of interest, but she did not say what she meant by a conflict of interest or who decided when one existed; nor did she say whether, because of his work for previous clients, the noble and learned Lord the Attorney-General has in fact recused himself from personally giving advice to the Government on any current issue. Policy Exchange’s paper has comprehensively shown that none of this involves any breach either of legal privilege or of convention, so please may we have some answers to these questions? What precise definition of an actual or potential conflict of interest is used by the Attorney-General’s Office and who decides when one exists? On what matters has the noble and learned Lord the Attorney-General recused himself from personally advising Ministers?
The Attorney-General (Lord Hermer) (Lab)
My Lords, it is vital that the public are reassured that the highest standards of propriety are applied by my department, and I welcome the opportunity to answer questions today. As the House will be aware, I am constrained by the law officers’ convention, which prohibits me identifying particular instances in which law officer advice has been sought, even by implication. But I hope that reassurance can be found in the description of the rigorous system for managing conflicts provided by the Solicitor-General in the other place.
May I make it plain that if ever there is or will be reasonable doubt as to whether a law officer should be recused, my department will always err on the side of caution. Compliance with that process has led me to recuse myself from certain matters. As I said, the convention precludes me identifying in those instances, because to do so would inevitably reveal the issues on which advice has been sought. I can assure the House that recusals have no material impact on my department’s work. Where one law officer is conflicted, another is asked to act instead, and I am fortunate to have the support of a Solicitor-General and an Advocate-General for Scotland with highly successful careers in law.
Lord Thomas of Gresford (LD)
My Lords, two years ago, the Constitution Committee of which I was a member concluded that the law officers’ convention not to disclose advice was based upon legal professional privilege and the possibility of future litigation. With the Diego Garcia 61 matter, which has been in the press, the conflict of interest is so obvious that I am sure that the noble and learned Lord will not have advised on the special permission to permit their entry into the UK when he has acted professionally for them in private practice. Legal privilege in future litigation will not be applicable if he simply informs the House that the issue did not cross his desk. I ask him to do so.
Lord Hermer (Lab)
I thank the noble Lord for his question. The law officers’ convention is not a convenient rock for law officers to hide behind; it is an essential principle that allows law officers to properly discharge their functions by providing legal advice to the Prime Minister and to government, and for that advice and the contents of that advice not to be revealed, because to do so would fundamentally undermine the efficacy of our work. I understand the basis of the noble Lord’s question, but I do not think I can properly answer that question directly, save to reiterate that we have in place a rigorous process for the identification and management of conflicts.
Baroness Chakrabarti (Lab)
My Lords, I am grateful to my noble and learned friend the Attorney-General, not least for bringing such a distinguished career and experience to this vital role. Can he reassure me that the processes that are currently in place for dealing with conflicts are the same as were in place under the last Government and their law officers? Does he agree that if we examined commercial conflicts of interest with the same zeal and enthusiasm that we assign to legal professional interests, that would be great for trust in democracy and would definitely assist the Government in pursuit of what went wrong during Covid, with corrupt contracts and other favours given to certain individuals and organisations?
Lord Hermer (Lab)
It is my understanding that the same rigorous process has been applied to me and my fellow law officers as was applied previously under Governments of all different colours. As to pre-existing experience, Parliament and various Governments have been lucky to enjoy the assistance of lawyers with a range of experience of public, commercial and criminal law. I anticipate that the same rigour has been applied to identify conflicts for all of them.
Lord Garnier (Con)
My Lords, I am not sure whether the Government I served thought it was an advantage to have me in office, but there you are: I was once a law officer. The convention is that a law officer should not disclose his work in such a way as to embarrass his client. The client in his case is—and in my case was—the Government. The Prime Minister could release him from that convention if he thought it appropriate. Has he asked him to help him?
Lord Hermer (Lab)
The noble and learned Lord served with great distinction as a law officer and will know that the question as to what I may or may not have advised the Prime Minister is itself covered by the law officers’ convention.
Lord Falconer of Thoroton (Lab)
My Lords, nobody doubts the integrity of my noble and learned friend the Attorney-General, nor that he has complied with the conflicts principles, as has been attested to by the Cabinet Secretary. Can my noble and learned friend say what effect seeking to undermine the convention by scraping the bottom of the barrel in this way has on the good functioning of government and of his office?
Lord Hermer (Lab)
I have two answers to that. In terms of the current law officers, it has none, because we will not be distracted in the work that we seek to perform with this Government to enable them, through law, to deliver on their objectives. My concern is not for myself nor my colleagues; it is that, where people seek to scrape the bottom of the legal barrel in order to drive short-term political point-scoring, it undermines this country’s important institutions in the eyes of the public.
Lord Caine (Con)
My Lords, as Advocate-General for Northern Ireland, the noble and learned Lord might well have to advise on matters relating to highly sensitive national security interests in legacy cases, as happened when I was in government. Would it not serve the interests of transparency and public confidence in his office in Northern Ireland if he were to state unequivocally, yes or no, that, in any cases that might involve known associates of people he has acted for, or indeed those individuals themselves, he will simply recuse himself?
Lord Hermer (Lab)
I can assure the noble Lord that in those instances, and, indeed, in any subject matter that I am asked to consider as Attorney-General, we will apply the rigorous conflict process to identify and manage conflicts. Beyond that, I am afraid I cannot go.
Lord Faulks (Non-Afl)
My Lords, the noble and learned Lord has described the rigorous system that is in place and has been for some time, but he is, of course, the chief government legal adviser and head of the Government Legal Service. As in private practice, ultimately, the decision is his. Does he feel it is in the public interest not to release any information about whether he was recused from these vital matters?
Lord Hermer (Lab)
My Lords, I do. We have set out, and the Solicitor-General set out in the other place, details of that rigorous process. We have explained it and I consider that, without offending the law officers’ convention, that is as far as we can properly go.
Lord Butler of Brockwell (CB)
My Lords, so that the noble Lord does not have to comment on particular cases, could he just say, as a general principle, whether there is a conflict of interest when a law officer is asked to advise on a matter in which he has been retained in a private professional capacity?
Lord Hermer (Lab)
I hope I manage to capture the noble Lord’s question. I do not think it possible, without offending the law officers’ convention, to identify circumstances and instances in which I have recused myself because in so doing, it would identify matters upon which my advice was sought. However, I have made it plain to the House that, as a result of the application of the rigorous system we have in place for the identification and management of conflicts—and what I have described as the conservative approach we apply to managing those conflicts, erring on the side of caution—there have been matters, since coming into this office, on which I have recused myself.
Agricultural and Business Property Reliefs: OBR Costing
(3 days, 16 hours ago)
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Baroness Neville-Rolfe (Con)
My Lords, I refer to my register of interests: a third share in two small Wiltshire fields—what is left of the marginal family farm of my childhood.
I am not surprised that the increases in agricultural and business property taxes in the Budget have proved to be friendless, except in some deeply urban areas. This was demonstrated in last week’s debate on this Question about costs in the other place.
The truth is, the Government have miscalculated. They expected a vindictive tax grab on large estates to be welcomed by those of an envious disposition. Instead, the difficulties faced by the working family farms which produce so much of our food have been noticed, even by the supermarkets. Elderly farmers are especially desperate.
The Government have the ghastly choice of brazening the matter out or making some sensible concessions. There are already whisperings about the latter. Will the Minister help to ensure that the Government reduce the harm to agricultural investment and food security of this misguided policy?
The Financial Secretary to the Treasury (Lord Livermore) (Lab)
My Lords, I am grateful to the noble Baroness for her question. I do, however, totally dispute her characterisation of this policy. At the Budget, we had to take some very difficult decisions on welfare spending and tax that were necessary to fix the public finances and support our public services. We had to do that to address the mess that we inherited from the previous Government. We took those decisions in a way that makes the tax system fairer and more sustainable.
As a result of the measures we are taking, individuals will continue to be able to claim 100% relief for the first £1 million of combined business and agricultural assets, and 50% thereafter. Given the nil-rate bands, that means a couple can pass on up to £3 million between them to a direct descendant inheritance tax-free. In answer to the noble Baroness’s question, the measures will go ahead as planned.
Baroness Kramer (LD)
My Lords, my colleagues on these Benches have made it clear that we oppose this tax change; we are concerned about the impact of it on family farms and the rural economy, and the knock-on effect on food pricing and food security. We have proposed alternative taxes in lieu. However, in the spirit of compromise, I propose that the Minister looks at lifting the individual thresholds for inheritance tax and agricultural property to £3 million. It would provide great relief for the genuine small farms and would still capture those who are seeking to use investment in farm property as a loophole for tax avoidance. Frankly, having seen the OBR numbers, it would be a very little loss to the Exchequer.
Lord Livermore (Lab)
I am very grateful, as always, to the noble Baroness for her spirit of compromise. As I said in answer to the previous question, given the nil-rate bands, a couple can pass on up to £3 million between them to a direct descendant inheritance tax-free.
Lord Carrington (CB)
My Lords, growth, a government priority, requires investment. What assessment have the Government made of the effect of reducing the reliefs on investment in farming?
Lord Livermore (Lab)
The Government set out their modelling at the Budget and, more recently, the Chancellor provided very extensive additional details to the Treasury Select Committee on exactly that point, including in her follow-up letter. That modelling was backed up by the OBR, as shown in the publication last week.
Baroness McIntosh of Pickering (Con)
My Lords, can the Minister say how much the Government expect to raise from the abolition of APR and its consequential impact on inheritance tax relief? The Office for Budget Responsibility, in its Supplementary Forecast Information Release of 22 January, stated very clearly, in paragraph 1.11 on page four:
“The central estimate for the costing is an increase in revenue of £0.5 billion by 2029-30”.
Is that really all that the Government expect to raise from this very cruel measure?
Lord Livermore (Lab)
Yes, it is—and it will go a very long way to help our public services after years of neglect. I completely disagree with the noble Baroness’s characterisation of this policy.
Baroness O’Grady of Upper Holloway (Lab)
My Lords, does my noble friend the Minister agree that big supermarkets could do more to support farmers in Britain, who are under pressure from the squeeze on prices that big supermarkets are setting? At least one big supermarket achieved more than £2 billion of pre-tax profits—an increase of 15%—last year.
Lord Livermore (Lab)
I certainly agree with my noble friend on the specific point that farmers’ incomes are under pressure, and we must do everything we can, as a Government, to support farmers in that respect. It is worth adding that we will continue to work in partnership with the large supermarket chains. We are determined to work with businesses right across the country to drive economic growth.
Lord Macpherson of Earl’s Court (CB)
My Lords, does the Minister agree that the OBR note confirms that farmers and businesspeople have a large number of options for reducing their inheritance tax liability? Does he agree that, in so far as the measure encourages farmers to pass on their farms to younger, more dynamic successors, it is as likely to increase productivity as to reduce it?
Lord Livermore (Lab)
I absolutely agree with everything that the noble Lord said. Last week’s publication from the OBR does not contain any new information about its view on the fiscal impact of this policy; it remains the same as it set out in its Economic and Fiscal Outlook for the 2024 Budget. The noble Lord’s question relates to that of the noble Baroness, Lady McIntosh of Pickering. The OBR described this as “highly uncertain” because such a wide range of tax planning options are available to respond to this policy change, including being able to pass on up to £3 million tax-free. The noble Lord was also correct to say that the current system, particularly the extent to which it drives up land prices, has locked out young farmers from being able to own property—and them being able to do so is undoubtedly a good thing.
Baroness Penn (Con)
My Lords, the costings we have seen for this policy tend to put APR and BPR together. Can the Minister provide figures for the effects of each separately?
Lord Livermore (Lab)
They have been costed jointly at £0.5 billion, as the noble Baroness, Lady McIntosh of Pickering, said.
Lord Whitty (Lab)
My Lords, while I am not entirely happy about this policy, I recognise that it has been done and that it will stand. However, I suggest to the Treasury and Defra that, if they are looking for taxation from landowners, they should look at the companies, individuals and institutions buying agricultural land to set against their profits elsewhere—or indeed to greenwash their carbon-creating activities elsewhere—and at those who make a killing from a change of use, rather than directing their tax increases at small family farms.
Lord Livermore (Lab)
Just to be clear with my noble friend, we are not doing what he says at the end of his question. I think it is worth revisiting the rationale for this policy in the first place. Of course, the Government recognise the role that reliefs play in supporting farms and small businesses. Importantly, the reliefs will continue to play that role, but the reality is that the full, unlimited exemption, which was introduced in 1992, has become unsustainable. Under the current system, the 100% relief on business and agricultural assets is heavily skewed towards the wealthiest landowners and business owners. According to the latest data from HMRC, 40% of agricultural property relief is claimed by just 7% of estates—that is just 117 estates claiming £219 million of relief. It is neither fair nor sustainable to maintain such a large tax break for such a small number of claimants.
Lord Berkeley of Knighton (CB)
Can I ask for clarification on one thing? Using the Minister’s figures, if a farm was worth, say, £2 million or £3 million—and of course many farms, and I would say most, are worth at least that, if not a great deal more—what would be the situation if the farmer is unmarried or does not have a civil partnership? That is not a farm that he would then be able to pass on to the next generation, given the Minister’s figures. Am I correct?
Lord Livermore (Lab)
They would, absolutely; of course they can pass that farm on. To be very clear: there is 100% relief for the first £1 million of combined business and agricultural assets. Above that amount there will be 50% relief. This means that inheritance tax will be paid at a reduced effective rate up to 20%, rather than the standard 40%. The reliefs also sit on top of all the other spousal exemptions and nil-rate bands. So full exemptions for transfers between spouses and civil partners will continue. I accept that in the example the noble Lord gives that is not the case, but any inheritance tax liability after that, on relevant assets, can be paid in 10 annual instalments, in most circumstances completely interest-free. All those circumstances are vastly more generous than in other parts of the tax system.
Southport Attack
(3 days, 16 hours ago)
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Lord Davies of Gower (Con)
My Lords, I think I can best begin by repeating the opening sentences of the Statement:
“None of us will ever forget the events of 29 July. The school holidays had just started, and little girls were at a dance class to have fun, dance and sing. A moment of joy turned into the darkest of nightmares”.
This was one of the most despicable criminal acts in my lifetime. In my previous career—32 years as a detective policing in London—I saw some of the most violent and atrocious criminals at work, but this certainly ranks as the most heinous of crimes. Let me be clear: Rudakubana should never be released from prison. His age means he has not been given a whole life sentence, despite the countless lives he destroyed on that dreadful day and the legacy of mistrust he has sown across the country.
My heart goes out to the victims and families. Not a day has passed since the sentencing that they have not been in my thoughts and in the thoughts and prayers of the nation. I could not possibly imagine their pain but, as a father, albeit of a grown-up family, I can only send them my heartfelt condolences and offer any support I can give. We owe it to the victims, their families and the wider public to ensure that justice is not only done but seen to be done.
In this vein, I must express my grave concerns about the limitations of our current sentencing framework. The public will rightly question how someone capable of such monstrous crimes could one day walk free among us. This is undoubtedly a question of moral clarity and public confidence in our justice system, as I am sure noble Lords will agree. There is a strong case here for amending the law to give clear judicial discretion to award whole life sentences to under-18s. Can the Minister confirm whether the Government will conduct a full review of sentencing guidelines for the most serious offences committed by under-18s? Will he also commit to consulting with legal and policing experts, as well as the victims’ families, to ensure that our laws reflect the severity of such crimes and the need to protect society from those who commit them?
Furthermore, this case has highlighted the importance of support for victims and their families, both immediately following an attack and in the years that follow. Perhaps the noble Lord can outline what specific measures the Government are taking to provide such support, including access to counselling, financial assistance and legal advice where needed.
It is right that the Prime Minister highlighted the sale of knives, and we took action on this when in government, banning the sale of zombie knives. As the leader of the Opposition rightly said, we also need to understand issues relating to integration and British values. Can the Minister confirm that integration issues will form part of the Prime Minister’s review into this?
The people of Southport, and indeed the entire nation, are watching. They expect action, accountability and assurance that this will never happen again. We on these Benches are committed to working constructively with the Government to ensure that the lessons of this tragedy are learned and that justice, in its truest sense, is achieved. Let us honour the memory of those we lost by striving for a society where such horrors are not only condemned but prevented.
Baroness Suttie (LD)
My Lords, I thank the Minister for this opportunity to discuss the Statement on the Southport attacks that was made in the House of Commons last week.
It is hard to find the words to describe the truly awful brutality that resulted in the violent and shocking deaths of Alice, Bebe and Elsie last summer in Southport: three little girls who set off to enjoy the innocent pleasure of dancing—something which so many children enjoy—only never to return. My heart goes out to their families and friends left behind, as well as to the many left physically, emotionally and mentally scarred after the barbaric events of that day.
From these Benches, we welcome the announcement of the inquiry. A public inquiry is necessary because the Government have a duty to the families to learn the lessons from what happened. An extremely violent young man was identified, by many different people and organisations, yet he was still able to carry out these abhorrent attacks.
Multi Agency Public Protection Arrangements exist to enable the police and other relevant agencies such as youth offending teams and social services to manage the risk presented by violent offenders, but many are underresourced and lack experienced or qualified participants. Can the Minister say whether the inquiry will aim to establish whether the risks presented by such cases are best managed through MAPPA teams? What are the Government doing to ensure that MAPPA teams are properly staffed and resourced?
Last September, the Committee on Statutory Inquiries of your Lordships’ House published its findings. Paragraph 46 of that report says:
“Ministers should keep in mind the option of holding a non-statutory inquiry (given its relative agility) and then converting it if witnesses fail to cooperate. Ministers should also consider selecting non-judge chairs or appointing a panel. Ministers should meet and consult victims and survivors’ groups before publishing the terms of reference”.
I would be grateful if the Minister could confirm that this is in line with the approach that the Government intend to take on the public inquiry.
The announcement last week of the introduction of greater checks on age before buying knives online is to be welcomed. As the Home Secretary said last week, it is truly shocking that Axel Rudakubana was easily able to buy knives on Amazon when he was only 17. However, can the Minister clarify what is the current situation for buying knives online from an outlet based outside of the UK? Can he confirm whether it is the intention to introduce age verification for the import of knives to this country?
A great deal has been written and said about the effectiveness of Prevent and the definition of terrorism since the Prime Minister’s and Home Secretary’s Statements last week. It is welcome that there is to be another review of Prevent. I believe the Prime Minister’s Statement raised some important questions. Is a lone attacker—unfortunately, usually a young man—who is obsessed with terrorism and previous terrorist attacks but who is not ideologically driven or working within a recognised terrorist organisation, a terrorist? It is important to consider what would be the consequences of changing Prevent’s engagement in such cases.
Does the Minister agree with Neil Basu, the Met’s former head of counterterror policing, when he said last week that a “Prevent for non-terrorists” is now necessary and will require a “big bill” if we want to be safe? Will the Home Office carry out an assessment of the risks of diverting counterterrorism officers from their core task if the definition is expanded to include extremely violent, physiologically disturbed people who are clearly a danger to society but not necessarily a threat to the state?
The brutal murders in Southport raise questions about dangerous individuals and the internet, as Rachel Reeves acknowledged yesterday and as is made clear by the Home Secretary’s letter to the many tech companies appealing for a change in their attitudes. There have always been dangerous and violent individuals who pose a risk to society, but society now faces an additional threat from individuals who have easy access to radical, violent and extremist views on the internet, which can provide an incentive for attacks and sometimes an utterly misguided sense of identity and justification. Do the Government intend to take further measures to remove such dangerous content and to work with search engines such as Google to divert searches to more positive content, with signposting to organisations that can help such individuals?
The misinformation spread on social media after the attacks last summer in Southport, including from Elon Musk, was truly sickening and shocking. It did absolutely nothing to help the victims and survivors, and had much more to do with identity politics and a right-wing agenda. These are not simple matters with quick-fix solutions. We should be wary of knee-jerk reactions which result in bad legislation. However, the victims’ families deserve to know that we will ask the difficult questions and try to find workable solutions, and, most importantly, learn from the mistakes.
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
My Lords, in addressing the Statement made by my right honourable friend the Home Secretary in the House of Commons, our first thoughts have to be with the victims of this horrendous incident: Elsie, Bebe and Alice. Our thoughts are also with the people who were attacked, their parents and the brave people who ran to the defence of those young children, both those at the playgroup event and, later, the security forces, the police, the fire services and others. All of them showed that this horrendous crime will remain with us for years to come.
I will try to answer in detail the points from His Majesty’s loyal Opposition’s Front Bench and the Liberal Democrat Front Bench. So the House is aware, the Home Secretary’s announcement last week ensured that we will have an independent public inquiry which will look not just at what happened in Southport but at the issue of rising youth violence and extremism. It will look at the issues raised by the noble Baroness, Lady Suttie, in relation to the Online Safety Act and the importance of taking action to remove content. Members will wish to know that, on 17 March, illegal content removal comes into effect. We have written to online providers to ask them to speed up their response, as is their statutory responsibility, prior to that date.
We will undertake a learning review of the organisation of Prevent generally, which has now been in operation for well over 20 years. The situation within the terrorist community and the areas that Prevent relates to have changed in that time and we need to make sure that it is up to speed. We have appointed the noble Lord, Lord Anderson of Ipswich, as independent commissioner of Prevent and to review this case on a temporary basis.
We will look at knife sales in the police and crime Bill which will come before this House shortly. I will reflect on the points that the noble Baroness raised in relation to overseas sales, as well as the verification of sales that have been brought to the door.
We must remember that the individual who committed these crimes faces a life sentence, given down last week, with a 52-year minimum sentence. The issues that the noble Lord, Lord Davies, mentioned about the whole-life sentence are tempered by the fact that the UK Government have signed up to the United Nations Convention on the Rights of the Child, which means that we cannot currently give a whole-life sentence to somebody under the age of 18.
The House should not be confused by this regarding our commitment to the victims of this crime, which the noble Lord, Lord Davies of Gower, spoke of. We will give them full support. That is why, taking on board the points made by the noble Baroness, Lady Suttie, we will take some time to appoint the chair of the inquiry and to consult with the coroner and the victims’ families, and to look at the terms of reference for the inquiry. All the points made from both Front Benches are important to be considered by the public inquiry.
The noble Lord, Lord Davies of Gower, mentioned integration. That is key to the assessment of Prevent and to how we tackle those issues generally. I remind him that the perpetrator of this crime was a British-born, British citizen. There are multilayered complexities in the issues that led to the appalling incident in Southport.
The noble Lord and the noble Baroness made points about the review of legislation generally. We have asked the Independent Reviewer of Terrorism Legislation to see whether we are up to speed at the moment. That again will be a considered process, but one which I hope will add value to the work that we need to do.
The noble Baroness, Lady Suttie, mentioned a range of issues regarding multi-agency teams and their determinations. These are all extremely important. I assure her that we will be examining all this in relation to the response as a whole.
I hope noble Lords will recognise that, for those of us who were Ministers in the first few weeks of office, this was a tremendous challenge. We have to look in slow time at how we best respond to this challenge. We have looked at the incidents that have been referred to and at the sentencing that has now happened in relation to Southport, but we have also had a review of the consequences, post-Southport, of the disorder that took place in the light of that event. As Ministers, it is important for us to get to the stage of looking at what we can do to help prevent incidents like the one that happened in Southport occurring in the future.
I hope that, as a start, the points that my right honourable friend mentioned in the Statement last week and in this updated Statement, post-sentencing, give this House the assurance that this Government will be looking at how Prevent is operating, the incidents surrounding this crime and why the multi-agency support mechanisms did not identify interventions earlier, the Online Safety Act and how we can improve those issues, and at all this as a whole, to ensure that if there are things that we can do in the future to prevent this type of atrocity, we will do them.
Lord Walney (CB)
The Minister has pointed to a number of reviews that have been put in place in the wake of this appalling crime. Can I ask him for as much clarity as he can give on the Government’s attitude towards the Shawcross review of Prevent? Obviously, the new reviews will respond to this changed picture, but a programme of work was being enacted by the department to implement those recommendations. Has that now been paused or scrapped, or is it continuing in the interim?
Lord Hanson of Flint (Lab)
I am grateful to my noble friend for his question and for the work that he has done in this field. He will know that 33 of the 34 recommendations from the Shawcross report have already been fully implemented. We have one outstanding recommendation. We have already launched new statutory guidance and new training for front-line professionals, including on Islamist extremism. We are overhauling our decision to take in non-Prevent referrals that enter the system. We have launched pilots to tackle online radicalisation, to support those that do not meet the Prevent thresholds. We have recruited, as I mentioned in my initial comments, the first independent Prevent commissioner.
Everything will be kept under review, but I hope that the Shawcross recommendations that are implemented will make a difference. Self-evidently, failings have happened and, therefore, we need to review those failings independently of ministerial action and, in doing that, bring forward—sadly—further recommendations to tighten and improve the system.
Lord Beamish (Lab)
My Lords, the Intelligence and Security Committee showed in its 2022 report, Extreme Right-Wing Terrorism, the toxic nature of how online extremism is affecting young minds. I accept what the Minister said, that there rightly has to be a threshold for something to be deemed terrorism, but does he agree that the real gap is that, for those individuals who are affected by these images and propaganda online, there is nothing currently in the mental health services that they are referred to for dealing with that?
Lord Hanson of Flint (Lab)
My noble friend raises an important issue. This is an important part of the process that we need to review now: if individuals are being radicalised in their bedrooms in whatever way—right-wing, Islamist or just for the purposes of enjoying killing—we need to try to find a mechanism to remove the content that is leading to that radicalisation. Equally, if people come into contact with social services, the police or other agencies—as indeed the perpetrator did in this case—that needs to be sensitively picked up and support, whether mental health, directional or another form, needs to be given to help change that behaviour. That is the purpose of Prevent and of the regime that both Governments have had in place over a long period of time. Self-evidently, in this case, it failed. The purpose of our public inquiry is to look at why it failed and at the interventions that happened, why they did not work and why they were not picked up and developed further. We need to ensure that, from whatever background violent behaviour is being directed, we take action to mitigate against it.
Lord Paddick (Non-Afl)
My Lords, I accept what the Minister is saying but, on this Holocaust Memorial Day, the Times reports the findings of a Channel 4 survey which found that 52% of young people aged 13-27 said that they thought
“the UK would be a better place if a strong leader was in charge who does not have to bother with parliament and elections”,
while 47% agreed that,
“the entire way our society is organised must be radically changed through revolution”.
Not only did the internet apparently incentivise or motivate the Stockport murderer, it is producing wider, very worrying, attitudes. What will the Government do to counter these dangerous ideas; for example, by supporting the production of positive content?
Lord Hanson of Flint (Lab)
We have to do two things. First, we have to look at where there is material online that breaches criminal thresholds and then work with the hosts of that material to take it down. That is what the Government are trying to do with the Online Safety Act. My right honourable friend the Home Secretary and the DSIT Secretary, Peter Kyle, will be looking in the longer term at that type of illegal material which fosters, for example, ideas of using ricin, promoting potential attacks or encouraging violent behaviour. That has to cross a criminal threshold.
There is also a wider point about promoting a decent society and the values of tolerance, understanding, respecting differences and allowing people to live their lives with tolerance. My parents’ generation saw great loss fighting fascism in the Second World War—members of my family died. I grew up in the knowledge that my family and their generation had fought fascism in the Second World War. The Holocaust memorial services today remind us of where fascist ideology leads. We need, in my view, to gain an open, tolerant society. That is the second half of what I hope all of us can do to make sure that we respect and celebrate our differences.
Lord Hope of Craighead (CB)
Does the Minister agree with me that, leaving aside our obligations under the Convention on the Rights of the Child, it would be unwise of us to use an incident as extreme and horrifying as this as a ground for changing the law to enable a judge to impose a whole-life sentence on an individual aged under 18? The problem is that if the law is changed, it is changed generally, applying over a wide range of cases. It would not capture, without a very difficult definition, a case as extreme as this. It would be wiser to leave the matter as it is and of course go along with what the convention tells us.
Lord Hanson of Flint (Lab)
The noble and learned Lord speaks wise words. He will also note that Justice Goose indicated in his sentencing that it was likely to be a whole-life term, even though he could give only a 52-year sentence. The perpetrator will not be considered for any form of parole, at any stage, until he is 70; he is currently 18. That is a severe sentence, for which I am grateful for the work of Justice Goose and the judiciary in dealing with this difficult case in a sensitive way.
Baroness Fox of Buckley (Non-Afl)
My Lords, on the Statement’s points on contempt of court, will the Minister comment on the CPS’s refusal to release full background details about Rudakubana, even after his guilty plea? This led the Crime Reporters Association to note
“a worrying pattern whereby forces wanting to provide information to the press have been instructed to stay silent”.
I raise this because I want to know what the Minister thinks about the information vacuum that followed the incident. Yes, some bad-faith players stirred the pot, but most of the people who were speculating and asking questions about, say, terrorism were parents who were just sickened by the carnage of those little girls, and I think felt resentful, frankly, at being called out as either far-right or somehow the problem themselves. Can we have more openness and information, not less?
Lord Hanson of Flint (Lab)
The Government have tried to be as open as possible at every stage of this process, which is why we made Statements to the House of Commons when the incident occurred, on sentencing and now. I hope the noble Baroness will recognise that the Government have a duty also to make sure that information does not prejudice a trial and/or a sentencing result, even after a guilty plea.
If information that the Government held, or were party to, or had already prepared to begin to promote ideas that we are acting on now, had been put into the public domain at a time when the Government either became aware of that information or acted upon it, we may have had a situation whereby a trial would not have been a fair and open trial; a conviction may not have happened in the way it has happened; and, even after the guilty plea, which the Government were not expecting on that day, we may have had the sentence subject to potential appeals because of anything the Government had said.
Certainly, the Government’s role is to now have an inquiry, for all the reasons I have mentioned, and to look at all the issues that noble Lords and noble Baronesses have raised today. But the Government also have a responsibility to make sure that members of the judiciary fulfil their job appropriately.
Lord Goodman of Wycombe (Con)
Further to the answer that the Minister has just given, Jonathan Hall, the Government’s independent reviewer of counterterror legislation, said, in the aftermath of these heartbreaking killings, that
“if there is any information you can give, put it in the public domain, and be really careful that you don’t fall into the trap of saying ‘we can only say zilch, because there are criminal proceedings’”.
He continued:
“Quite often, there’s a fair amount … that can be put into the public domain”,
and that
“just saying ‘there’s a charge, we can’t say any more’, is not going to cut it these days”.
I appreciate, as the Minister says, that the position is very difficult, and one does not want to prejudice a trial. But will he reflect on what the independent adviser said, and did he agree with it?
Lord Hanson of Flint (Lab)
I am grateful for the way in which the noble Lord has put his question. We have now charged the independent reviewer of terrorism legislation to examine the lessons from this case. He is responsible for the comments he has made. But he will present a report, which this Government will publish and present to both Houses in due course, on the issues that he thinks are relevant; we will respond, and that is the right and proper way to do it. I am not about to make policy now at the Dispatch Box, nor is my right honourable friend, on issues which demand and need reflection, and I hope the noble Lord understands the reasons I have responded in that way.
Lord Reid of Cardowan (Lab)
My Lords, I beg the indulgence of the House, as I missed the opening statement from the Minister. I recognise the difficulties that he faced. Although, obviously, as the previous speaker said, a fair amount can be put into the public domain and, equally obviously, everyone wants as much as possible, nothing would have been more disastrous than if Ministers had put information into the public domain that put the trial in jeopardy and this man got off completely. May I say to the Minister in solace that whatever criticism he and the Government have had for the actions they have taken or not taken, it is as nothing to the criticism that he and his colleagues would have received if they had put that trial in jeopardy and this murderer had gone scot free?
Lord Hanson of Flint (Lab)
My noble friend has faced decisions such as those that we have faced in these past few months, and he knows the difficulty of dealing with incidents such as the one that happened in Southport in the summer of last year. I understand and take his point, and I am grateful for his support. I hope the House will understand that the Government not commenting on certain issues is not about them trying to cover up or be secretive or not divulge information; it is about ensuring that that information is divulged at a time when it is most effective to secure convictions of individuals such as the one responsible for an atrocious act that took three lives.
Lord Gascoigne (Con)
My Lords, I have two quick questions for the Minister. First, obviously, the state has failed with horrific consequences here. The Minister mentioned a review. Can he set out what the timeline is? How fast can it be done? How thorough will it be? Will the Government undertake to accept any recommendations or changes that are suggested? Secondly, there have been a few comments about the rights of a child, which are obviously important, but there are also the rights of the victims to consider. If there are, sadly, future incidents such as this, and if the Government go ahead and lower the voting age to 16, does that then mean—and this is not a political point—that a 16 year-old is considered to be an adult, or is a 16 year-old who is able to vote still a child?
Lord Hanson of Flint (Lab)
On that latter point, the Government’s legal binding for this potential area of policy is signing up to the United Nations Convention on the Rights of the Child. We are determined by the convention that is signed, so that any change in the voting age would not impact on the convention unilaterally by the United Kingdom as a whole.
The noble Lord mentioned the inquiry. I hope he understands that this relates partly to the speed of the events of last week, with a guilty plea and the sentencing on Thursday. With the sentencing having taken place, we want to establish the inquiry that my right honourable friend has mentioned, but we want to take time for three reasons and in three areas. We want to take time to consult the families to ensure that they understand what is happening and that they are brought onboard, because the victims are not just the children who died but their relatives. We have a coroner’s inquest, which is ongoing, and we need to consult the coroner on these matters. We have to ensure that the chair has the right skills for this inquiry, and that is not going to be a quick, easy fix. Therefore, much as I would like to give the noble Lord an easy answer on the timescale, I say to him that I will bring back to this House at some point, in a Written Statement or on the Floor of the House, the details of that inquiry, but as yet we are working through those things. We want to make sure that we get it right. We want the families not only to feel ownership of the inquiry but to understand its objectives and terms of reference, to have contributed to them and to have confidence in the chair that we ultimately select.
Mental Health Bill [HL]
Monday 27th January 2025
(3 days, 16 hours ago)
Lords ChamberRead Full debate Mental Health Bill [HL] 2024-26 View all Mental Health Bill [HL] 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-IV(Corrected) Fourth marshalled list for Committee - (23 Jan 2025)
“30AA Overruling a nominated person(1) The appropriate tribunal may, on application made in accordance with this provision, make an order overruling a decision of a nominated person.(2) An order under this section may be made on the application of—(a) the patient,(b) an approved mental health professional,(c) any person engaged in caring for the patient or interested in the patient’s welfare, or(d) any person with parental responsibility for the patient.(3) An application for an order under this provision may only be made on the grounds that—(a) the nominated person unreasonably objects to the making of an application for admission for treatment or a guardianship application in respect of the patient,(b) the nominated person has, without due regard to the welfare of the patient or the interests of the public, exercised the power to discharge the patient under this Act or is likely to do so, or(c) the nominated person unreasonably objects to the making of a community treatment order in respect of the patient.(4) In this section “patient” includes any person by or for whom a nominated person is appointed.”Member’s explanatory statement
This amendment would give the Mental Health First-Tier Tribunal the power to overrule decisions of a nominated person.
Baroness Bennett of Manor Castle (GP)
My Lords, I shall also speak briefly to the other amendments in this group. I warn those who are planning to speak after me that I will be brief, because this amendment is self-evident and set out in our papers. I begin by reflecting on the fact that I think there is universal welcome for the creation of the nominated person situation. This is a good step forward and widely welcomed. What your Lordships’ Committee is trying to do is perhaps to fulfil its traditional role to make sure that it is set up in as watertight, practical, useful and effective way as possible.
This amendment did not originate with me; it originated with the Law Society. It provides for a mental health First-tier Tribunal to overrule the power of the nominated person. I note that the next amendment in the names of the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, suggests not the county court but the Court of Protection. I do not have any particular position on any of these things. It is useful for us in Committee to discuss this in detail. People far more expert than me will outline that, so I shall not go on at length.
I will note for the Committee’s understanding that my Amendment 71 was withdrawn, because it was doubled up with someone else’s but was put in a different place. It was just one of those technical juggles that happens. With that very brief introduction, I beg to move.
Lord Meston (CB)
My Lords, I shall speak to Amendment 69, which would replace the reference in the Bill to the county court with reference to use of the Court of Protection to deal with applications to terminate appointments of nominated persons. The single reference to the county court, currently in Schedule 2, is the only place where the county court is given jurisdiction to do anything in this legislation, which I suggest makes it something of an anomaly as well as an anachronism.
The reference to the county court simply carries forward the use of the county court from the 1959 and 1983 Acts, which provided for that court to deal with applications to displace nearest relatives. When I was first appointed a judge, I well remember being presented with an urgent application to displace the nearest relative, of which I then had no experience and in which I had never had any training. In the days before judicial computers, I had no access to anything but out-of-date and very limited books in the small court, no longer in existence, where I was then sitting for a few weeks and without help from any legal representatives. Few learning curves have been more rapid.
Since then, I would like to think I developed some expertise, but my later experience of those applications has led me to question whether the modern equivalent in this Bill concerning nominated persons would be better dealt with elsewhere. Such applications can involve detailed understanding of psychiatric reports and of the family dynamics for the patient concerned, particularly if the nominated person is unco-operative or disengaged. At the time when the earlier legislation stipulated the use of the county court, there was neither a separate family court nor the Court of Protection, which was created by the Mental Capacity Act 2005.
Of course, I do not suggest that county court judges could not deal with these applications—my life with my present and former judicial colleagues would probably not be worth living if I did so. A judge has to be prepared to turn his or her hand to whatever comes their way. However, I do suggest that the Court of Protection is now better equipped to deal with these applications with its specialist expertise and specifically nominated judiciary.
Baroness Berridge (Con)
My Lords, I shall speak to Amendments 77, 82 and 84 in this group. I am grateful to the noble Lord, Lord Meston, for mentioning my amendments in advance. I am adding the other choice for His Majesty’s Government, which is the mental health tribunal, on the basis that the Court of Protection deals with the Mental Capacity Act and, obviously, at the moment, the mental health tribunal deals with claims under the Mental Health Act.
However, there are one or two points of clarification on the process on which it would be useful to hear from the Minister. As I understand it, for the county court to take an application to displace the nearest relative involves means-tested legal aid, whereas the mental health tribunal, I believe, has Legal Services Commission funding—I am talking in old money here—so it is non-means-tested. I am not aware of what the situation is with the Court of Protection. However, an important concern of people making these applications is whether their legal representation is funded. I expect they are in a situation similar to that outlined by the noble Lord, Lord Meston, when he spoke of getting one of these applications for the first time; for many people making these applications, it will be their first time not only making such an application but being in front of any kind of court or tribunal, and at a time of great distress with a relative detained under the Mental Health Act.
Given that the policy document disclosed last week references this process as the solution to certain situations, could the Minister please outline, either today or in a letter, how many county court applications there are, how long people wait for such applications and what the rate of success is? How many of those who go to the county court currently get legal aid?
Is the Minister satisfied that the county court can act swiftly enough to remove a nominated person who is a risk to the patient? An example given, I think either in the review or in the response to the White Paper, is that, if you have a coercive, controlling boyfriend of a 17 year-old girl as the nominated person, or someone who is suspected of having trafficked that young person to the UK, then time is of the essence for practitioners to have that person removed—on evidence, obviously—from having such powers as, for instance, to apply to discharge the patient from hospital.
At this stage, it might also be appropriate to ask the Minister what is meant in the policy document by the concept of “temporary” nominated persons? We had interim nominated persons in the review, but there is no concept that I have seen in the Bill of temporary nominated persons.
Finally, Amendment 82, although it may be in the wrong group, talks about parental responsibility. We have had other discussions in Committee about this, and I think it was in the review; we must make sure, at the very least, that appropriate people with parental responsibility have the relevant information. That is a baseline. Whether we go on to consultation or being able to apply to remove a nominated person, I would submit—and Amendment 82 outlines this—that they should have all the relevant information. I have exempted the person with residual parental responsibility under a special guardianship order. This reveals some of the complications of the Children Act. In this type of situation, the child has been removed to live with someone else; it is similar to a care order, in that the people with parental responsibility remain there, unless there is an adoption order. One has to be careful even about the rights to information, and who with parental responsibility receives that.
Baroness Butler-Sloss (CB)
My Lords, if I may, I shall start with the amendment tabled by the noble Lord, Lord Meston. I agree with almost everything that the noble Baroness, Lady Berridge, has said. I will talk first about which court it should be in. I agree entirely with what the noble Lord, Lord Meston, had said. Oddly, the county court was one of the only courts in which I did not sit, but I have never heard a circuit judge who was very keen on dealing with these particular applications.
Judges of the Family Division sit in the Court of Protection. As I would hope noble Lords would agree, they are somewhat expert in family law, and they do a great deal of mental care and medical cases. As president of the Family Division, I spent probably 50% of my time doing one sort of medical case or other, quite a lot of them mental health cases. The Court of Protection is probably the best court to deal with this. I do not feel very strongly against the mental health tribunal—I just do not think it would be quite as good. Legal aid is an issue, and I assume that it probably would not be automatic in the Court of Protection.
I turn to my Amendment 70. I entirely share what the noble Baroness, Lady Berridge, has just said. The law is that, until the age of 18, one is a child, regardless of the Gillick case, regardless of being 17 and very nearly grown up. Until a person is 18 they remain, technically, in law, a child. I am very concerned about a child of any age, living at home with parents, who has a mental health problem sufficiently serious to require attention and a nominated person, who is at odds with the parents or guardian and chooses somebody who is totally unsuitable. The noble Baroness, Lady Berridge, pointed out that this could be someone who might be trafficking, or an unsuitable boyfriend.
The one group of people not included in new Section 30B(2) in Part 1 of Schedule 2 where it says that, to discharge a nominated person,
“An order under this section may be made on the application of…”
is anybody who has parental responsibility for the child. This means that when a child who is at odds with their parents goes into hospital, when those parents know the boyfriend and that he is unsuitable, those parents have no voice whatever in saying that he is not suitable to be a nominated person. Subject to the important points that the noble Baroness, Lady Berridge, has made, it seems that there are certain cases where, in what used to be called a custody order or a special guardianship, the parental responsibility of the natural parents is limited.
I would have hoped that the Government would see that, however much they want to empower children, including children under the age of 16, they cannot take away 100% the responsibilities of parents. Under Section 2 or 3 of the Children Act, parental responsibility is defined as having rights as well as responsibilities. I am really talking about the responsibility whereby parents may really want to be able to tell someone, “Look who my daughter is going out with”, but under the Bill they have no right do so, and as far as I am concerned that is utterly wrong.
Baroness Buscombe (Con)
My Lords, perhaps I may quote from our report on the draft Mental Health Bill on this point, while agreeing 100% with both previous speakers. During our evidence sessions, we heard from a number of people who had real concerns about the issue of nominated persons for young people. We heard
“that choosing a Nominated Person outside of the family can put pressure on family relationships. Respondents also noted the importance of ensuring that the families and carer are still given a voice in a patient’s treatment even if they are not chosen as the Nominated Person. This is particularly important for children and young people. Additionally, one respondent who identified as a carer of someone with a mental health condition expressed their concern that not all nominated people may know the patient well enough to assist in making decisions in their best interest … Another respondent noted that, for those under 18, there may be overlap between the rights of those with parental authority and those of the Nominated Person”.
Our belief during that whole process was that this all seriously needs to be clarified, either in law or in the code of practice. I remember that one respondent was very concerned that young people would assume that a nominated person could be a friend and that the friend would really understand their role, but in some cases that just was not happening.
Baroness Butler-Sloss (CB)
My Lords, I hope I may be forgiven for getting up again, because I completely forgot to refer to Amendment 76. It would come in under paragraph 3(2) in Part 1 of new Schedule A1, where the parents and any person with parental responsibility are not even consulted on the appointment. That is exactly the same point as I made earlier.
Earl Howe (Con)
My Lords, with this group of amendments, the noble Baroness, Lady Bennett, my noble friend Lady Berridge, the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, have exposed a crucial set of issues: in my judgment, one of the two or three most important issues that we shall be dealing with during our debates on the Bill. At their heart, I suggest, is the conflict, or perhaps I should say the high risk of a conflict if nothing is done, between the arrangements that the Bill seeks to put in place for the creation of nominated persons on the one hand and, on the other, the law of the land as set out in the Children Act 1989.
Both this group of amendments and those in the next group in the name of my noble friend Lady Berridge focus on matters of the highest significance for child protection and child safety in all its aspects. The assumption inherent in the Bill’s provisions for nominated persons is that the process for appointing a nominated person is rigorous enough to ensure that someone unfit to be appointed to that role will not in practice be appointed, or that, if they are, the system will find them out. I believe that it is evident from what we have heard in this debate that that assumption is a highly dangerous one.
A nominated person will be someone in a position of considerable power. They will be able to exercise all the functions exercised currently by a nearest relative, as well as availing of additional powers as set out in the Bill. Children and young people under 18 will be able to appoint a nominated person. That person will be someone of their own choosing. It could be a parent or someone other than a parent, but the principal qualification for such a person is that they must have the child’s best interests at heart.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I thank noble Lords for an extremely helpful debate. I want to say how much I understand the concerns around the nominated person regarding children and parents, and the great need to get this right in the way that noble Lords have rightly unpicked today.
It is very important that parents are involved in a child or young person’s care. I say to noble Lords, as this has come up before, that we do not intend or wish to undermine the rights or responsibilities of parents. In the vast majority of cases, the nominated person for a child or young person will be their parent or whoever has parental responsibility, either because they have decided that themselves, with the relevant competence or capacity, or because they are appointed by the approved mental health professional.
For under-16s the Bill sets out that if they lack competence to make this decision, the approved mental health professional must appoint a parent, or a person or local authority with parental responsibility. The Bill aligns with the Mental Capacity Act on decision-making capability, with young people aged 16 and over considered to have the capacity to make relevant decisions. We think it is important, as I know noble Lords do, that children and young people have the right to choose a nominated person, and I understand the need to get the nominated person right. Some 67% of over 1,200 respondents to the White Paper consultation supported extending this right to under-16s.
We must have the right processes and safeguards for all patients, and additional protections for children and young people. These safeguards will cover the nomination process and the ability to overrule the nominated person or remove someone from the role if they are not acting in the patient’s best interests. The noble Baronesses, Lady Bennett and Lady Berridge, and the noble Lord, Lord Meston, have all put forward amendments to give responsibility to the tribunal or the Court of Protection in these matters. The county court already has a role in displacing the nearest relative. We believe that it has the expertise, procedural tools and legal framework to handle sensitive disputes involving external parties, such as conflicts of interest or allegations of abuse. I emphasise the word “sensitive”. I believe that the debate today has acknowledged that we are in very sensitive territory and that we need to get this right.
The noble Lord, Lord Meston, mentioned the training of judges. I can confirm that we will be working with the county court to ensure that it is aware of and can fulfil the requirements of the new provision.
The noble Baroness, Lady Berridge, asked for figures on county court applications, and I will be very glad to write to her and answer her fully. Similarly, I will be very pleased to write to her in detail on the matter of legal aid.
The Act and the Bill allow for someone who is not acting in the interests of the patient to be overruled or removed from this role. On Amendment 68 specifically, the Bill enables the responsible clinician to overrule the nominated person on the grounds included the amendment, so I am grateful for its being brought before us today. This will be quicker and will avoid burdens on the tribunal.
On Amendment 69, transferring the role of the nominated person to the Court of Protection would expand the court’s remit to under-16s. Currently, the court can deal only with the financial affairs of under-16s. The Court of Protection makes decisions for those lacking capacity, but patients need to have capacity to have appointed their own nominated person. Where they lack capacity or competence, the approved mental health professional will appoint, and the Bill sets out the grounds for them to terminate the appointment.
On Amendments 77 and 84, the noble Baroness, Lady Berridge, asked about the concept of a temporary nominated person. This is in recognition that such an appointment by an approved mental health professional is only until the person concerned has the relevant capacity or competence to choose their own—that is what is meant by the word “temporary” here.
The First-tier Tribunal (Mental Health) in England and the Mental Health Review Tribunal for Wales are focused on reviewing detention under the Mental Health Act. The provisions of the amendments would add additional burden on that tribunal. My concern is that it would risk undermining its core function and delay detention reviews, which I know is not something that noble Lords would wish.
Amendment 70, tabled by the noble and learned Baroness, Lady Butler-Sloss, would specify that parents, guardians and anyone with parental responsibility can apply to the court to displace a nominated person. The Bill already allows anyone involved in the patient’s care or welfare to apply to the county court to terminate the appointment of a nominated person. This includes parents, guardians and anyone with parental responsibility, as her amendment seeks.
On Amendments 72 and 73, in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Kamall, I wholeheartedly agree that the law has to prevent exploitation and manipulation. The nomination process is indeed intended to ensure that the decision is the patient’s own. I recognise the circumstances that the noble Earl, Lord Howe, and other noble Lords described as possibilities. We have to consider all the potential scenarios, which are very real challenges to us. A health or social care professional, or an advocate, must witness the nomination and confirm in writing that the nominated person is suitable and that there has been no fraud or undue pressure. On the point the noble Earl raised, the code of practice will include guidance on how to determine this.
Amendment 76 was tabled by the noble and learned Baroness, Lady Butler-Sloss. We understand the desire to involve parents in the decision, and for the vast majority this will be appropriate. We are concerned that the amendment’s requirement to consult a parent, guardian or someone with parental responsibility could risk undermining the principle of giving children and young people a choice. It could also, in a different way, pressure the child into choosing the parent, in circumstances that might be far from desirable. Although we do not think that we should require consultation with the parents in all circumstances, we would expect the witness to discuss the nomination with parents and others with interest in the welfare of the child as part of the assessment of suitability. We will consult on guidance in the code on how practitioners should encourage the child or young person to involve their parents, even if they are not the nominated person, unless it is inappropriate.
On Amendment 82, tabled by the noble Baroness, Lady Berridge, I agree that parents and carers are to be given information about the care and treatment of their child. If a child nominates a person other than their parent as their nominated person, their parents retain legal rights under parental responsibility. These rights include the right to be consulted on certain decisions and to receive information about the child’s care. The Bill also introduces a duty on the responsible clinician to consult with people involved in the child’s welfare on care and treatment planning, which includes parents and carers.
With those comments in mind, I ask noble Lords not to press their amendments.
Baroness Bennett of Manor Castle (GP)
My Lords, I thank the Minister for her careful and detailed response to an important group of amendments. It may affect only a small number of cases, but they are cases where we really need to get this right. Those two adjectives apply very well to this whole debate.
I will make a couple of comments in response. We have had three suggestions about where the applications to remove the nominated person should be. Personally, I do not have a strong view. I thought the point from the noble Baroness, Lady Berridge, about legal aid was important. Justice unfunded is justice denied, so it really is important that there is that full and necessary support, wherever they end up.
With that, I pick up the important point made by the noble Earl, Lord Howe, about the witness being such an important person to ensure that this process goes well. The noble Earl talked about making sure the guidance is right. I add that we have to make sure that the resources are there, thinking about our overstretched mental health services. We need to ensure that the person who will be the witness has the time to put in the resources to ensure that they can properly be a witness. It may not be a subject of law, but it certainly needs to be thought about.
Baroness Berridge
“(3) Regardless of whether a person is appointed as a nominated person, if they have parental responsibility that person must be given appropriate and relevant information about care and treatment of a relevant patient.(4) Subsection (3) does not apply to persons with residual parental responsibility for the relevant patient when the patient is subject to a special guardianship order under section 14A of the Children Act 1989.”Member’s explanatory statement
This amendment, along with another amendment in the name of Baroness Berridge, seeks to ensure that regardless of whether persons with parental responsibility are appointed as the nominated person, they should have access to the appropriate and relevant information about care and treatment of the relevant patient (unless a Special Guardianship Order has been made).
Baroness Berridge (Con)
My Lords, Amendment 74 properly sits alongside Amendment 82 in the previous group, so I rise to speak predominantly to Amendments 75, 78 and 79A to 81. This group seeks to ensure that the expansion of choice and autonomy for children and young people under the Bill sits consistently with the child protection law of the Children Act, which I believe the noble and learned Baroness, Lady Butler-Sloss, was involved in creating.
This is not a new issue. The independent review way back in December 2018 stated:
“There needs to be careful consideration of how the powers and rights of the NP”—
the nominated person—
“will interact with other areas of the system, including care orders, guardianship and child arrangement orders, where the overlap with parental responsibility is particularly important”.
Parental responsibility has been dealt with in a series of amendments by the noble and learned Baroness, Lady Butler-Sloss, so I will not address that. It is regrettable that over six and a half years later, we still have not sorted this matter and there is no draft code of practice for noble Lords to refer to.
However, I am grateful for the meetings the Minister has had with colleagues, and for the policy document disclosed last week, which made small steps. I hope the Minister can confirm that she has met the Minister for Children and Families and DfE officials regarding this matter, as they hold responsibility for the Children Act. I am also grateful that the Children’s Commissioner has now stated her concerns in this aspect, as well as for the excellent work of the Children and Young People’s Mental Health Coalition.
To avoid this being dry law, I will give two quick examples that illustrate the conflict remaining between the proposed reforms and the protections under the Children Act.
First, a 15 year-old child is Gillick competent but still does not quite understand why she has not had any contact with dad. However, there are days of evidence in the family court showing that dad is violent, controlling and coercive; a child arrangements order was made, giving him only what is called letterbox contact. The child appoints dad as the nominated person, and dad of course now has contact. Cannily—these people are canny—on the Thursday before a bank holiday weekend, he applies to have the child discharged. The 72 hours to bar this application pass by the locum’s staff, et cetera—we can all imagine the inquiry—and dad has now taken the child and disappeared. I leave it to the noble Lord, Lord Meston, and the noble and learned Baroness, Lady Butler-Sloss, to outline what mum, who has parental responsibility under this Bill, knows is going on. Children and young people should of course be given choice and autonomy—my amendments do not seek to undermine either that or Gillick competency—but surely we must consider circumscribing that when the family courts have, for child protection reasons, restricted the role of adults who should normally care for and love that child or young person.
I turn to the second scenario. A 17 year-old lacks the capacity to appoint so the AMHP is making the decision to appoint the nominated person. However, the 17 year-old is under a special guardship order—maybe they ran away from the special guardian—and was picked up by the police while trying to find dad, whose address they had on them. Dad still has parental responsibility, of course, so the AMHP contacts him and appoints him as the nominated person. Again, he applies for discharge. The child tries to return to the special guardian, who has no idea that the child is about to return home, so no one is there to receive them. The child leaves in distress and harms themselves.
The AMHP can be forgiven for thinking that child special guardianship orders end at 16 years old, as I cannot find them mentioned at all in the Bill. The same scenario would apply to a child in care as paragraph 9 of Schedule 2 to the Bill is blissfully unaware that 16 and 17 year-olds can be under a care order. The AMHP, according to the Bill, is under no duty to appoint the local authority for a 16 and 17 year-old under a care order or a special guardianship order in this scenario.
The solution to the second scenario is in Amendments 79A and 80A; I am grateful that the noble Baroness, Lady Tyler, has added her name to the latter. Where any person under the age of 18 is being detained—that is about one-third of young people—the AMHP is given a list of people who must be the nominated person, not just those with parental responsibility and the local authority in relation to care orders, as in the Bill and as outlined in the policy document.
Dominic Marley, the co-chair of the AMHP Leads Network, has written to me. He says that he
“fully supports the amendment … In its current form, the Bill conflicts with other legislation affecting children, such as the Children Act 1989. The Bill fails to consider the various orders relating to parental responsibility as outlined in the Children Act 1989”.
He goes on to say:
“This is a deeply concerning omission and is likely to give rise to confusion and uncertainty in practice. We believe the amendments you have tabled will provide clarity in this regard, clarity which should be provided by primary legislation”.
My final point on this second scenario is that the Minister’s policy document states that, for under-16s who lack competence, as in this scenario, the AMHP will appoint the special guardian as the temporary nominated person. Can the Minister explain why the Bill says that the AMHP must choose the local authority if there is a care order in place, but not if there is a special guardian? I repeat the point made in the previous day in Committee: the mental health code cannot create a “must” unless it is included in the Bill or secondary legislation.
The solution to my first scenario is more difficult, and I accept that it is less likely to occur in practice. Most of the one-third of young people who are detained under the Act will lack capacity by the time they are detained but, if we want to maintain as much of a child’s or young person’s choice and autonomy when they have capacity, we must act when they have capacity. Amendments 75, 78, 80 and 81 disqualify certain people, such as the no-contact parent under a child arrangements order or the residual person with parental responsibility when a special guardianship order has been made. The amendments also mandate certain people who have to be chosen, such as special guardians.
I accept that that is a very clunky way of doing it. Another option is for His Majesty’s Government to forbid certain people rather than mandating anyone. Another option would be to give the job of disqualifying people to the family court by amending the Children Act. Therefore, the court, on making a care order, a child arrangements order, or a special guardianship order—for which it often hears evidence—would name certain people as being disqualified from acting as a nominated person.
So I hope the Minister can clarify her policy document, as it includes the child-in-care scenario where the nominated person is a parent—usually where the child resides—who has their parental responsibility limited. It states that the witness—the person involved in the process—
“would assess the appointment of such an individual as unsuitable due to the potential risks to the child and therefore prevent this”.
Is that mandatory language? If it is, why not use “must” and put it in the Bill? Are the Government actually giving the AMHP, the young person or that witness the ability to go behind the care order of the family court? If the Mental Health Act code says that the witness just has to document that, if it is “should” rather than “must”, do we really want to enable that?
The policy document then immediately says:
“We will set out in the Code of Practice considerations for the witness to make beyond those set out in legislation”—
I am not sure that makes sense—
“including how to make these judgements”.
That now seems to be truly discretionary language. I again outline the three categories from the code: “must”, “should” and “may”. Which one is this? If this is “should” then, as I say, the child can go behind the family court order as long as the witness writes down the reasons. I expect the Minister to be very clear in her response, if we are undermining the authority of the family court.
Amendment 79 is a quick clarification of whether the child or AMHP can appoint more than one person as the nominated person. Amendment 85 adds the grounds of
“not acting in the best interests”
so that the AMHP can remove the nominated person—for instance, if they discover that they have trafficked the child to the UK. That is not just for children and young people but for all patients.
I return to the risks to children and young people in both the scenarios I have outlined. These are not triggered by the AMHPs, and they will not be triggered by poor training, a lack of resources or levels of staffing—nor triggered by those who the family court said could pose a risk to the child or young person. These would be triggered by how His Majesty’s Government currently propose to change the law. In the worst-case, but sadly foreseeable, scenario where a child dies at the hands of a nominated person who had already been known to be a risk, as outlined by the family court, I expect that the Chief Coroner would need informing of your Lordships’ debate. Otherwise, professional and other staff might take all the blame. Also, would the Secretary of State for Education in fact still be able to do a serious case review of the death of that child, or would she not be conflicted? A dangerous person got access to a child because the nominated person process was a backdoor to the Children Act. So can the Minister outline whether the nominated persons part of the Act will be enforced before the consultation on the code of practice she is so often relying on?
Finally, I quote from the policy document again:
“We appreciate that there are complications inherent in the complexity of modern family structures, (e.g. separated parents) in addition to the existing system around children’s legislation (e.g. special guardianships, child arrangement orders). These are not complications which have been created by the Nominated Person policy and they exist in the context of Nearest Relative as well”.
Yes, of course the current situation is complex, but this view in the policy document is not shared by the independent review, by the response to His Majesty’s Government’s White Paper—where these concerns were also raised—or by the Joint Committee, civil society or the Children’s Commissioner. The Minister is alone in this view. I know that, in your Lordships’ House, we are not entitled to see legal advice that His Majesty’s Government obtain, but I hope the Minister can assure the Committee that Treasury counsel with specialisms in the Children Act and mental health have been asked to give an opinion.
The child protections that the Children Act has upheld for decades are so vital. I hope we will come back to this on Report, when I hope the Secretary of State for Health and Social Care and the Secretary of State for Education will lay the necessary government amendments. I beg to move.
Baroness Tyler of Enfield (LD)
My Lords, I will speak briefly to Amendment 80A, to which my name has been added.
I did not intervene in the first group but I share the general view expressed, which is relevant to this group of amendments, that not enough thought has been given to the interaction between the Mental Health Bill and other key legislation, particularly the Children Act 1989. That concerns me, because that is where really key and important child protection sits. That is a general concern I have.
Lord Meston (CB)
My Lords, I support the amendments in the name of the noble Baroness, Lady Berridge. Indeed, we should be grateful to her for exposing the complexity and variety of situations which may arise and of which mental health professionals must be made aware, so that the decisions they have to make are properly informed by knowledge of the operative orders and the terms of any orders made by the family court. That seems absolutely fundamental. It reinforces the point I wanted to make at the end of the last group before I was very properly curtailed. It applies not only to the county courts if they are to retain some jurisdiction in this area but to the family court. Some serious thought must now be given to judicial training.
Has the Minister considered an approach to the Judicial College with a view to ensuring that both county court and indeed family court judges will be properly trained with regard to the obligations that will arise under this new legislation?
Baroness Butler-Sloss (CB)
My Lords, for the reasons that have been given I also support the amendments of the noble Baroness, Lady Berridge. Just to add to what the noble Lord, Lord Meston, said, I respectfully point out to the Minister that if she does get in touch with the Judicial College, which I think would be a very sensible move, she should also let the President of the Family Division know.
Earl Howe (Con)
My Lords, in this group of amendments my noble friend Lady Berridge has raised an armada of issues which I think it is clear to all of us cannot be ducked. These issues, as she said, were examined at length both during the independent review and by the Joint Committee, but it has to be said that in both instances it proved too much of a challenge to identify a satisfactory resolution to them. For that reason, as we observed in our debate on the previous group, the weight of these matters now rests on the shoulders of this Committee and of the Government.
In summary, we need arrangements that are robust enough to ensure that a nominated person’s appointment can be effectively challenged, and that, in certain circumstances, where necessary, the exercise of their powers can be legally contested and blocked. Without those measures, we shall leave an unacceptable lacuna in the law and, more pertinently, run a high risk of exposing children to personal danger.
My noble friend is to be thanked for assisting this Committee’s deliberations with the clear way in which she has set out the challenge, and I hope and trust that the Minister will wish to grip the challenge with her usual vigour.
Baroness Merron (Lab)
My Lords, like the noble Earl, Lord Howe, I am most grateful to the noble Baroness, Lady Berridge, for introducing an appropriately wide range of scenarios, questions and testing. That is important for the Committee but also for our ongoing work. As the noble Baroness, Lady Tyler, said, to describe this area as complex is to use too small a word, and I think we are all wrestling with that to get it in the right place. I know that noble Lords are aware that the work is ongoing, and I thank them for their engagement and interest in this issue. As I said previously, I very much understand the need for a robust process to keep children and young people safe and ensure that only appropriate individuals can take on the role of nominated person, while giving children and young people that right to choose.
I will respond collectively to the amendments put forward in this group. As I set out earlier, we agree that in the vast majority of cases there is an expectation that a parent or whoever has parental responsibility would take on this role, and that would include consideration of special guardians and child arrangement orders. We also agree that, where parental responsibility has been removed due to care proceedings, in the vast majority of cases it is unlikely to be appropriate for such a person to take up this role. My reference to this being a complicated area—
Baroness Merron (Lab)
Perhaps the noble Baroness will let me make a bit of progress.
Baroness Berridge (Con)
I think I need to clarify a point of law—I am looking to the noble Lord, Lord Meston. In care proceedings, is parental responsibility removed? I do not believe it is; it remains with the parents. That is very important.
Baroness Merron (Lab)
I thank noble Lords for that exchange, which brings me to my repeated point about the complicated area in which we are treading.
As was highlighted by the pre-legislative scrutiny committee, we will set out our expectations in the code of practice as to whom approved mental health professionals would appoint, or the witness would confirm suitability of, in a range of circumstances, including in the more and most complex cases. We will consult on this to ensure that we cover as many scenarios as we can.
I can confirm to the noble Baroness, Lady Berridge, that we are working with NHS England, the Department for Education, the Association of Directors of Children’s Services and others to ensure that our policy and guidance reflect what can be a very complex arrangement for some children under the Children Act.
The Bill is clear that where an approved mental health professional is appointing a nominated person for an under-16 they must appoint someone who has parental responsibility, and the amendments extend this approach to all under-18s. As I said previously, we are allowing more flexibility for 16 and 17 year-olds rather than prescribing in legislation who this must be.
While the amendments put forward a wide range of circumstances, we all know—and the noble Baroness, Lady Berridge, demonstrated this—that there will be nuanced and complex cases, especially for 16 and 17 year-olds. Someone outside the proposed list, such as a step-parent, may be the most appropriate person, or a kinship care arrangement may be in place. These amendments propose regulatory powers in recognition of this but we feel that updating statutory guidance will allow us to keep this up to date and in review as new policy is implemented.
The noble Baroness, Lady Berridge, asked about differences between special guardian orders and special care orders. The Bill says that the approved mental health professional must appoint the local authority or anyone else with parental responsibility as the nominated person. The special guardian, as someone with parental responsibility, would be appointed if a special guardianship order was in place. In relation to the proposal for two people to take on this role, as the nominated person exercises specific statutory functions under the Mental Health Act, we feel it is right that only one person has these limited powers, to avoid the potential for disagreement and confusion about who can exercise the relevant power.
We recognise that there will usually be more than one person with parental responsibility and that the approved mental health professional will need to determine who should be the nominated person. Under the current system, this would be the older parent, which we do not think is necessarily appropriate. We will provide guidance for approved mental health professionals in the code of practice. This may include which of the parents is recorded as the child’s next of kin, who the child lives with and who is accompanying the child.
The noble Baroness, Lady Tyler, helpfully inquired about the status of the nominated persons paper that was sent out in an attempt to be helpful. It was developed very much to support the debate, which it certainly has done, and we intend to develop it further. I very much welcome the further engagement from Peers and we will continue to formally consult as part of the code of practice so that it is an aid to the considerations of noble Lords. I hope it is doing that.
In the current nearest relative provision, only one parent will hold this role. As I mentioned in the previous debate, this will not exclude the other parent from being involved in their child’s care. Whether or not they are the nominated person, parents and carers should be given information about the care and treatment of their child, unless it is inappropriate. This is reflected in the Bill. We absolutely agree that someone should be removed as the nominated person if they are not acting in the interest of the patient. Criteria are included in the Bill for when an approved mental health professional may terminate an appointment, one of which is when the person is
“otherwise not a suitable person to act as a nominated person”.
On the points made by a number of noble Lords, suitability includes whether there is any risk to the patient. This may include if the person is behaving in a way that indicates they are unsuitable for the role; for example, if they are exercising their powers without due regard to the welfare of the person.
Baroness Browning (Con)
Reflecting on what the Minister has just said, would that close the Bournewood gap, which we tried to close in earlier legislation, where a professional carer cared for an autistic man who was not able to articulate for himself, but was overruled by the clinician? I am just trying to get my head round what she has just said because that was the Bournewood gap and, as the Minister will know, it ended up in the European Court before it was resolved.
Baroness Merron (Lab)
We need to be considering that as one of the scenarios and I would certainly be very glad to give the noble Baroness and noble Lords a more considered response to the very important point that has just been raised.
Under this policy, an approved mental health professional would terminate their appointment if the nominated person is not acting in line with the patient’s interests. I really wish to emphasise this.
For all these reasons and the responses I have given, I hope that the noble Baroness will feel able to withdraw her amendment.
Baroness Berridge (Con)
My Lords, I am grateful to noble Lords who have spoken and for the considered nature of the response and the clarification regarding the special guardianship. However, as we have outlined, other people remain having parental responsibility and it seems that under the Bill, as it is only one person, it could be that the residual person still has parental responsibility. It could just be that person under the Bill and not, in that situation, who is appointed.
I am concerned, not only by the outline at the beginning in relation to parental responsibility being removed. I just feel that there is a lack of understanding—with all due respect to the Minister’s diligence, thoroughness and engagement with colleagues—about the depth of the issue that we have here. She mentioned “would” appoint. That seems something that can be under the Mental Health Act code—“would” seems to be that as long as you document your reasons for that, you can move. It seems that from the situation I have outlined, in which the 16 or 17 year-old has been removed from the dad’s care because he has been shown to be, and proven by the family court to be, a danger, he could be appointed as the nominated person. Then we are relying on a speedy process in the county court—which we are not sure we always get legal aid for—to remove him. I am concerned by phrases such as “more flexibility for 16 and 17 year-olds”. Does that include the 16 and 17 year-olds who are under special guardianship or where there is a care order?
It seems that there is a conflict, based on what the co-leader of the AMHPs is saying, what the review has said and what the response says. We have a conflict between two pieces of legislation that we must continue to grapple with. On phrases such as “working with the DfE”, I asked specifically whether there had been a meeting with the Minister for Children and Families. The responsibility for a serious case review sits with that department. If we are to some extent right, this risk to children will manifest itself in an imperfect system. Obviously, there are professionals and clinicians, but we all know of cases that have gone wrong and ended up in inquiries.
I remain concerned by the lack of clarification on legal advice. Legally, in some ways this is fascinating—but it is not fascinating because it involves child protection. I welcome the engagement and I am sure that we will meet again in regard to this, but the severity of the risks that we are exposing, and allowing young people and AMHPs to go behind findings of fact in the family courts made under the Children Act is an incredibly serious issue. I hope that the Minister will be furnished with that kind of geeky legal advice, because for the children’s sake we need that.
However, I am grateful for the manner of her engagement and of course beg leave to withdraw the amendment.
Baroness Merron
Member’s explanatory statement
This amendment, my other amendments to Clause 31 and my new clause inserted after Clause 31 would provide for commencement two months after Royal Assent of provisions about tribunal reviews concerning patients subject to conditions amounting to a deprivation of liberty.
Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Baroness Merron
“References: restricted patients not subject to deprivation of liberty conditions(1) The Mental Health Act 1983 is amended as follows.(2) In section 71 (references by Secretary of State concerning restricted patients), for subsection (2) substitute—“(2) The Secretary of State must refer to the appropriate tribunal the case of any restricted patient detained in a hospital if—(a) the patient’s case has not been considered by the appropriate tribunal within the last 12 months, whether on the patient’s own application or otherwise, and(b) there is no pending application or reference to the appropriate tribunal in relation to the patient’s case.” (3) In section 75 (applications and references concerning conditionally discharged restricted patients)—(a) before subsection (2C) (as inserted bysection 31(3)(a)of this Act) insert—“(2B) Where a restricted patient has been conditionally discharged, is not subject to conditions amounting to a deprivation of liberty and has not been recalled to hospital, the Secretary of State must refer the patient’s case to the appropriate tribunal on the expiry of—(a) the period of two years beginning—(i) in the case of a patient who has previously been subject to conditions amounting to a deprivation of liberty, with the date on which the patient most recently ceased to be subject to such conditions, and(ii) in any other case, with the date on which the patient was conditionally discharged, and(b) each subsequent period of four years.”;(b) in subsection (2D), after “subsection” insert “(2B) or”;(c) in subsection (2E) omit “, is subject to conditions amounting to a deprivation of liberty”;(d) in subsection (2F), after “subsection” insert “(2B),”;(e) in subsection (2H), after “subsection” insert “(2B),”;(f) in subsection (3), after “subsection”, in the second place it occurs, insert “(2B),”.(4) The amendments made by this section apply in relation to any person who is a restricted patient within the meaning given by subsection (1) of section 79 of the Mental Health Act 1983, or is treated as a restricted patient as a result of that subsection, whether the person became such a patient (or treated as such a patient) before or after the coming into force of this section.”Member’s explanatory statement
See the explanatory statement for my amendment to Clause 31, page 42, line 37.
Baroness Murphy
Member’s explanatory statement
The purpose of the amendment is to query the necessity of expanding on “appropriate medical treatment”.
Baroness Murphy (CB)
My Lords, noble Lords will be pleased to know that this is a very small, probing amendment, on a matter that was brought to my notice by some forensic psychiatrists. One of their responsibilities is to train young psychiatrists in the use of the Mental Health Act as it relates to patients who have been engaged in criminal proceedings. In this group of amendments, we are talking about transfers between hospitals and prisons and the use of Sections 47 and 48.
Amendment 96 concerns Section 47 removals from prisons to hospitals. The original Act was very straightforward, stating that
“the said person is suffering from mental disorder; and that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and that appropriate medical treatment is available for him”.
The new version expands the clause by stating that
“treatment can be given for the relevant disorder from which the person is suffering”.
This is repeated in Clause 34(3).
My immediate thought on reading this was, “What else can an appropriate treatment be except one for the relevant disorder from which the patient is suffering?” Also, why is it necessary to expand this clause at all, on the basis that we should be as straightforward as we possibly can, particularly with people who are using this on a day-to-day basis? If the patient is suffering from another disorder, or the patient is not suffering, how could the treatment possibly be “appropriate”?
I understand from the Explanatory Notes, and from what Ben Coffman, special adviser to the Minister, told me about what the Bill team is trying to achieve, that Sections 47 and 48 are generally interpreted to mean that hospital managers are not formally required to provide evidence that a hospital place is available. If an order is made, the hospital specified is under a duty to admit the patient.
However, there was an immigration case, R (ASK) v SSHD, in which the Court of Appeal ruled that, because specialised provision is required for restricted patients, a physical hospital place must be identified for the detention criteria to be met. This did not reflect the government position at the time, which was that “available treatment” should be interpreted to be the same for all Part II and Part III patients. Therefore, the Government are now changing the wording of this to ensure that a physical hospital bed does not need to be identified. This is how “available” treatment is currently interpreted for the detention criteria across the rest of the Act.
With these few words, therefore, Clause 34 aims to correct the divergence in the detention criteria, as opposed to creating one. Well, I must say that I still do not understand why these few words change the detention criteria. They just add more complexity to the wording. I do not understand why they have the effect that the Explanatory Note says they do. I am asking for greater guidance, because I just do not get it. I wrote to my colleagues saying, “This is the answer I’ve got, so maybe this doesn’t need to be asked”. I got a single line back, saying “What?” They simply did not understand the response. So I am asking again.
Those are all my questions on Sections 47 and 48, relating to Clause 34. There are other amendments in this group to which I will say something, in the interests of not having to bob up again. The noble Lord, Lord Stevens, has two important amendments on the reciprocal nature of transfers between prison and hospital. If what is good for the goose is good for the gander, and if we are going to make it a lot easier to transfer people from prison to hospital, which I very much hope we will, we must be able to transfer people back in the other direction.
I know that this was an issue very close to the heard of the noble Baroness, Lady Watkins, who is not able to be in her place today. She has run wards where that very frustrating situation arises where you have somebody desperate to come into the ward from a prison who has been identified by the consultant, but no space can be made available because somebody is blocking that place. I will therefore be giving my support to the noble Lord, Lord Stevens, on those amendments. I beg to move.
Lord Bradley (Lab)
My Lords, I shall speak to Amendments 96A to 96C and 163A in my name in this group. They deal with the transfer of prisoners from prison to hospital in a specified timeframe of 28 days. I am obviously pleased that this has been included in the Bill under Clause 35, but I briefly give some background.
I first recognised a need to incorporate a time limit in legislation in my independent report to government in 2009. At that time, the Department of Health had piloted a 14-day waiting limit with strong support from stakeholders to roll this out nationally, and I recommended this in my report. Although it was accepted in principle, it was not implemented. However, Sir Simon Wessely’s review picked it up again with a more realistic 28-day time limit, which was then included in the draft Bill and now in this Bill, ensuring a statutory requirement rather than relying on good practice guidance.
My amendments are therefore probing amendments to understand how the 28 days will work in practice—essentially, when does the clock start? First, Amendment 96A would replace the words “As soon as practicable” with
“No later than two days”.
HM Inspectorate of Prisons found that one factor contributing to delay was confusion around when the 28-day transfer period starts, with 34% of patients not referred on day zero of the 28 days. This amendment would ensure that the referral notice is made no later than two days after an initial request, therefore clarifying on what day counting begins.
Secondly, Amendment 96B would change “must seek to ensure” to “must ensure”. The scrutiny committee, of which I was a member, heard that “seek to ensure” is quite vague and open, and therefore recommended this amendment. I believe, as do many organisations such as the Prison Reform Trust, that the inclusion of “seek to” in the current wording of the Bill implies only an attempt to successfully transfer within the 28-day time limit, rather than it being the guaranteed outcome, save for exceptional circumstances. It would provide a clearer, more definitive commitment to adhere to a 28-day time limit for referral.
Amendment 96C would require that a specified, accountable person be appointed by the relevant referring body to ensure that the specified 28-day transfer period is met. While there are many agencies involved in arranging prison transfers, I am concerned that there should be a person to whom accountability is assigned. As it stands, the Bill lists in new Section 48A(3) the persons to whom the referral notice must be given—the notified authorities—but there is no person, agency or authority assigned, either with overall accountability or accountability for each part of the process. I believe that there is significant merit in creating a single role to help increase and assure accountability—for example, a dedicated official whose primary function would be to ensure efficient transfers with the ability and power to liaise and intervene at the most senior level where necessary.
The amendment would clarify accountability and support the desire expressed in the impact assessment to increase,
“accountability for all agencies involved in the transfer process to meet”
the deadline. This was supported by Sir Simon Wessely’s independent review, which stated that it would help
“unblock the institutional barriers and … give … the teeth it needs to push the transfer through”.
I absolutely agree with this, and I hope that the Minister will too in his conclusion to this debate.
Finally, Amendment 163A would require the Government to publish guidance on what counts as “exceptional circumstances” specified in new Section 48A(4) and (5), as inserted by Clause 35. That provision provides for a 28-day transfer period for acutely mentally ill patients held in prison to be transferred to hospital. Examples are given in new subsection (5) of what exceptional circumstances are not, for example:
“a shortage of hospital accommodation”
or
“a shortage of hospital staff; unless occurring as a result of other exceptional circumstances”.
This amendment would provide an opportunity to clarify what does constitute exceptional circumstances. This would help to avoid doubt, confusion and subjective judgment over what may or may not be an exceptional circumstance and to help ensure smooth and efficient transfer. Again, I hope the Minister will be able to respond positively to that, perhaps with examples of what are exceptional circumstances.
Finally, I just note that, for transfers to be successfully completed in the 28-day time limit, the Government must ensure that appropriate bed provision in psychiatric intensive care units and secure care settings in every geographical area of the country is developed, together with a skilled workforce. I am sure that we will return to this topic at a later stage in our debates.
In conclusion, as I mentioned earlier, it is 16 years since I made my proposals on transfers, and I hope that that they are now coming to fruition. I am grateful to the Government for that and for not trying my patience any longer.
Lord Stevens of Birmingham (CB)
My Lords, like the noble Baroness, Lady Murphy, and the noble Lord, Lord Bradley, I too support the aim behind Clause 35, which is to ensure the speedy access to specialist mental health support for people in prison. Like the noble Lord, Lord Bradley, I also think that there is great merit in his Amendment 163A, which seeks to ensure that the Secretary of State produce statutory guidance on the definition of what will count as exceptional circumstances for the reasons that the noble Lord has given.
The Explanatory Notes give examples of what might count as an exceptional circumstance where the 28-day standard would not apply: prison riots, hospital floods or exceptional clinical reasons. Those are three examples, but it would be good to see more precision on this question because, as the Government’s Delegated Powers Memorandum says, the meanings of these words will be litigated. They will show up in judicial review and private law action. Therefore, the clearer the Government are prospectively, the less frictional cost and time there will be through the justice system and health system in giving effect to the new standards that are set out here in what hopefully will become the Act.
However, having supported the noble Lord, Lord Bradley, on that amendment, I will disappoint him now by just injecting a note of caution on his Amendment 96B. As we have just heard, it would leave out “seek to” in respect of delivering on the 28-day standard; excising those words, as he said, would in effect make it an overarching requirement—a “must”—even if there is a shortage of hospital accommodation or no staff available.
If the thought behind this is that the principal drivers of delays are essentially administrative processes then a “must” on 28 days can, in a sense, be given effect without a downside. But I wonder whether we actually have sufficient evidence to know that that is the root cause of such delays as occur. As I understand it, about four-fifths of the transfers from prisons to our specialist mental health facilities in the first half of the current financial year were to psychiatric medium-secure units and psychiatric intensive care, both of which are in very high demand and incredibly expensive resources, with highly constrained supply.
The impact assessment rather glosses over this question. When describing whether this new standard for transfers to hospital from prisons might introduce additional cost, it says at paragraph 169:
“Costs for the measure have not been monetised because they are principally driven by wider systematic changes which are supported by the legislation”—
that is, its administrative friction. It goes on to say something which I do not quite understand. I would be grateful if the Minister could interpret for us what the department meant when it wrote that an additional reason the costs were not being monetised was to ensure that
“resources are available to achieve transfers within the time limit in a greater proportion of cases”.
What are these “resources available to achieve transfers”? Are they additional or substitute resources? What is the scale of them? What was meant in the drafting of that paragraph?
My hypothesis is that this is not just about administrative friction. It is actually due to constraints on the supply in expensive and specialised mental health services, and therefore the unintended consequence of mandating, through excising “seek to” and making 28 days a trump card for people coming from prisons, would be one of three consequences.
Prisoners with severe mental health needs would find themselves in unsafe and poorly staffed facilities; or, by virtue of being in prison, you would displace a non-prison-based mental health patient who might have higher needs, as that is what the statute requires; or, under the Clause 49 powers, you would, effectively, see the Department of Health using the Henry VIII power, which it has in this Bill, to quickly rewrite 28 days and make it 180—or something else—because, as the delegated powers memo said, it might do so in that circumstance
“where insufficient beds are available to meet demand over a sustained period of time”.
For all those reasons, there may be unintended consequences of Amendment 96B which require further scrutiny.
However, in the spirit of wanting to make this work practically, I have laid down Amendments 97 and 98, which, essentially, as the noble Baroness, Lady Murphy, said, look to reciprocate the 28-day requirement. If you are aiming to get prisoners transferred to mental health facilities in 28 days or, similarly, when their treatment is complete, one should expect that the Prison Service or Immigration Service will ensure the return the prison estate to free up those scarce and specialist beds for other prisoners or patients who require treatment.
In a way, my amendment is a very gentle one. All I suggest is that if there are people stuck in specialist mental health beds who ought to be being returned to prison, that would constitute an exceptional reason for being unable to accept new intakes of prisoners being transferred. The reason this is such a gentle amendment is, of course, that the Government pray in aid the June 2021 best practice guidance for the transfers, which says that, although it should be a 28-day standard for moving from prison to mental health facility, it should be 14 days if moving back the other way to free up the bed. I have not proposed a 14-day requirement on the Prison Service, just the reciprocal 28 days, so, in that spirit of joint working, I hope these amendments will find wide support.
Baroness Fox of Buckley (Non-Afl)
My Lords, briefly, I am with the noble Lord, Lord Bradley, as opposed to the noble Lord, Lord Stevens, on the “seek to” question. When I read Clause 35, I was very excited about what it promised; I thought that, at last, this was being taken seriously. I talked to a range of people who worked in criminal justice, and they said: “Oh, it is not going to happen; what are you excited about?”—they just did not believe it. At Second Reading, I cited Richard Garside from the Centre for Crime and Justice Studies saying that Clause 35
“while welcome, feels aspirational rather than practically implementable in the current system”.”.—[Official Report, 25/11/24; col. 549.]
I started to look at it again and thought that the danger for those of us who are following this debate is that we get bought off by this aspiration, and that, in practical terms, it will not mean what we all thought it was meant to. I am quite keen that we toughen up the statutory requirements.
Baroness Tyler of Enfield (LD)
My Lords, I will just add a couple of brief points. This is a really important set of amendments and the issue of making it easier to transfer people between prisons and hospitals is critical. If you like, it is at the heart of some of the reforms that we are looking at. I have a lot of sympathy for the amendments put forward by the noble Lord, Lord Bradley. I am also aware that he has waited a very long time. Did he say that it was 28 years?
Baroness Tyler of Enfield (LD)
Just the 16. Anyway, it is a long time to wait.
The amendments aiming to make it clear, as the noble Lord said, when the clock starts ticking are really important, so that there is real accountability injected into the system. Often, when things go wrong it is where no one really feels responsible for something, so it does not happen. I will also be interested to hear what the “exceptional circumstances” do and do not include—I hope we will get some examples—because if they include just things such as shortage of staff or beds, we will not get very far at all, given the current state of mental health beds.
I understand the rationale behind the amendments tabled by the noble Lord, Lord Stevens; the reciprocity is a really important point to make. I just have slight concerns that we might be saying that this cannot happen in the way that the noble Lord, Lord Bradley, wanted to see, because we know that we have not got the scarce and specialist beds. They are just not available; it is very important to be practical about it.
It comes to the heart of the matter of this whole Bill: we know that, unless proper resource is put into the implementation of the Bill, it is not going to work at all. We know that, with mental health provision, particularly a secure unit, particularly with the state of the estate, the shortage of staff and all of that, there has to be wholesale investment in it for these things to work. I think the time has come. I simply add my voice to others to say that I hope the noble Lord practises patience—but I think he has waited long enough so I hope his patience will not be tested any longer.
Lord Kamall (Con)
My Lords, I thank all noble Lords who spoke to the amendments. I also thank the Government for allowing the Minister for Prisons, Probation and Reducing Reoffending to reply to this group. That is very much welcomed by the Committee. I think it was the noble Lord’s father who once said, “Kindness is good for business”. In this case, he might find that kindness is good for his noble friend the Minister. Given how hard she has been working on the Bill, I think she deserves some respite, so I am sure that that is very welcome.
So far, we have debated the importance of limiting detentions for those with autism or learning disabilities without co-occurring mental disorders. We have also debated the community treatment orders. But until now, we have not covered the provisions of the Bill relating to this new statutory 28-day time-limited period for transfers from prisons to hospitals. As the noble Lord, Lord Bradley, has said, he has been very patient. Therefore, the Government enshrining this target in law is welcome. Unfortunately, progress towards the goal of 28 days, as set out in the 2021 guidance and the White Paper, has been slower than anticipated.
His Majesty’s Inspectorate of Prisons, in its 2024 report The Long Wait—I am sure the noble Lord is aware of this—said that
“people linger in prison for weeks, often months and even, in the worst cases, for more than a year waiting for their transfer to be completed”.
Unfortunately, even though the 28-day guidance was there from 2022-23, only 15% of patients in that period were transferred to hospital within that timeframe. Sadly, the average wait was 85 days, and one prisoner was identified as waiting 462 days for transfer to hospital.
These Benches welcome the 28-day limit being put on a statutory footing, but, as other noble Lords have said—not only on this group of amendments but on others—once again, there is an issue of implementation here. Just because it is in legislation does not mean it will deliver the improvements that are necessary.
The noble Lord’s colleague—the noble Baroness, Lady Merron—has been very candid with noble Lords, saying that not everything in the Bill will be delivered now, and that there is a 10-year timetable for implementation. Given that, will the Minister say, at this stage, whether the 28-day limit is an aspiration or something that could be delivered immediately? If, at this stage, it is an aspiration and—understandably so—awaiting future spending reviews, is he able to give an indicative timeframe? Is the hope for the next 12 months, the next five years or, perhaps, up to 10 years? That information would be very welcome to noble Lords. Many noble Lords have been asking this throughout this debate. We understand that not everything is going to be solved overnight, but it would be good if we could have as much information as possible on the Government’s intentions and aspirations, including indicative timetables, where they are possible. We also understand that not everything is going to be clearly tagged at this stage.
Another finding from the prison inspectorate’s report was that there were serious flaws with the data held on patients who were awaiting transfer. I understand that there is no publicly available data describing the access and waiting times for beds. The Minister might be able to correct me on that. Some of the data on the numbers of prisoners awaiting transfer obtained from providers had significant gaps, due to a lack of consistent and accurate reporting, and some data contained errors and unreliability. This might also impact on Amendments 97 and 98 from the noble Lord, Lord Stevens.
The noble Baroness, Lady Merron, may well tire of hearing me repeat the importance of collecting accurate and complete data, but, as I and many other noble Lords have said on many occasions, we really cannot solve many of the problems we face without data that is as accurate and timely as possible. Therefore, I urge both Ministers to take up the issue of data reporting for patients awaiting transfer from prison to hospital with their respective departments.
Turning to Amendment 96C in the name of the noble Lord, Lord Bradley, which creates an accountable person who will be appointed to oversee the transfer process and ensure that the statutory 28-day limit is completed, I think this, once again, speaks to the point of implementation. This could be a sensible way of holding providers to account and working with them to address the shortcomings in patient transfers. Given the Government’s 10-year timeframe for implementation, noble Lords have raised the importance of oversight and accountability. Therefore, in the remarks from the Minister and in any subsequent letter, I hope that the Government will be able to address the issue of implementation and to give an indicative timetable. I look forward to the Minister’s response.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
My Lords, this is the first time that I have helped take a Bill through Committee, so I am grateful to noble Lords for bearing with me while I acquaint myself with the procedures. I appreciate the questions and suggestions from noble Lords because this is a subject that is very close to my heart, as someone who has recruited many of the people whom we are talking about, over many years. I have always thought it was very sad when colleagues whom I had recruited often had to leave because of their mental health problems and other complexities that they then found themselves in within the system.
Amendment 96, tabled by the noble Baroness, Lady Murphy, would remove the change to the detention criteria in Clause 34, provided for prisoners who become mentally disordered in prison and require transfer to hospital. This would mean that a physical hospital place must be identified before the detention criteria are met for transfer from prison to hospital under the Act. This differs from how “available” treatment is interpreted across the rest of the Act, and therefore risks delaying access to treatment. It would also affect the implementation of the statutory time limit in Clause 35, as the Secretary of State would not be able to issue a transfer warrant until a bed is identified, regardless of the patient’s needs.
Clause 34 aims to correct a divergence in the detention criteria, as opposed to creating one. I appreciate that the noble Baroness is seeking further clarity on how Clause 34 will operate and the intention of the wording. My officials would be happy to hold a teach-in with the noble Baroness on this. I therefore ask the noble Baroness to withdraw her amendment.
I turn to Amendments 96A to 96C, tabled by my noble friend Lord Bradley. We have known each other for nearly 10 years, six years after the important topic came on to his radar. Amendment 96A would place a legislative time limit on the referring body to issue a referral notice within two days of receiving a request for an initial medical report to assess whether an individual meets the criteria for transfer. The timing of the statutory referral notice being issued will not impact when the time limit begins. This starts from the day that the healthcare team requests the assessment, referred to in the Bill as “the initial request”. This amendment would therefore not benefit transfer timeliness. Additionally, placing a statutory time limit on the healthcare team in a detention setting to issue a referral notice would not be operationally viable, because not all services operate seven days a week. The current wording of “as soon as practicable” accounts for this and encourages the referral notice to be issued at the earliest point for each case.
Amendment 96B would place a duty on all relevant agencies to ensure, as opposed to “seek to ensure”, that the transfer is completed within 28 days. Due to the multiagency co-ordination required in the transfer process, there is no one body that could ensure punctual transfers. This is why we softened the duty, so that those in receipt of a referral notice must seek to ensure that the patient was transferred within 28 days. Having consulted with relevant agencies, we are confident that this is appropriate, given the complexities in the transfer process.
Amendment 96C, also mentioned by the noble Lords, Lord Kamall and Lord Bradley, would introduce a “specified accountable person”, appointed by the healthcare provider for the relevant place of detention, who would be responsible for ensuring that people are transferred within the 28-day time limit in Clause 35.
Lord Stevens of Birmingham (CB)
Can I just make sure I heard the Minister correctly? I think he said the that one of the reasons it would not be appropriate to do as the noble Lord, Lord Bradley, suggested—that is, to set out a statutory definition—was because it would take too long to do it and would delay implementation of the 28-day standard. I think he now just said it is intended that that will come into force in 18 to 24 months, the implication being that he thinks it would take 18 to 24 months to produce a piece of statutory guidance about what constitutes an exceptional circumstance. Is that correct?
Lord Timpson (Lab)
Having been in discussions with colleagues over the past couple of weeks on this point, I tested with them the processes involved in making sure that we can make this as robust as possible. One of the issues surrounding exceptional circumstances is the need for flexibility so that some of our professionals do not unwittingly break the law in exceptional circumstances. I am happy to write to the noble Lord with further details.
Lord Bradley (Lab)
Before my noble friend completes his summing up, I welcome him to his first Committee session. He kindly offered to meet me to discuss the accountable person for the process of transfer. Can he assure me that that meeting will take place well before Report?
Lord Timpson (Lab)
I will very happily meet as soon as possible and well before the next stage.
Baroness Butler-Sloss (CB)
I appreciate that this is this Minister’s first time, but I would like to speak to his team in the department through him. I find it very difficult to understand why the Minister’s team thinks it is necessary or, indeed, appropriate to invite my noble friend Lady Murphy for a “teach-in”. Does the Minister really mean that? It seems to me utterly inappropriate, and my noble friend could not say it.
Lord Timpson (Lab)
I thank the noble and learned Baroness for her comments. I hope the noble Baroness accepts my apology for the way it was phrased. As this is my first Committee, I have been getting a number of messages from officials, and I was trying to work out what I said at which point. I apologise. I will very happily meet the noble Baroness.
Baroness Buscombe (Con)
At the risk of giving the Minister a rather hard time on his first outing in Committee, on the point made by the noble Baroness, Lady Fox, about people saying that it will not happen, is he not fearful, as I am, that, given the way life is, if we do not rid ourselves of words such as “as soon as practicable” and “seek to”, as suggested in Amendments 96A and 96B, in practice it really will not happen?
Lord Timpson (Lab)
I thank the noble Baroness for the question. One of the questions that I have been asking colleagues is on exactly this point around whether this will happen. I have been reassured by asking policy colleagues many probing questions that the points in the Bill make it as tight as possible without conflicting professionals in the way they are going about their role.
Lord Scriven (LD)
I welcome the Minister to his first Committee. Clearly, a lot of work has been done on this to work out within 18 months what is required. Will the Minister let the Committee know what the gap is between existing provision and what would be required in terms of beds and staffing for this 28-day provision to come into force? That is an important piece of information that the Committee needs to understand to see whether it is just an aspiration or there are the resources needed to make it real.
Lord Timpson (Lab)
I will ask officials to get me that information and to pass it on.
Baroness Murphy (CB)
My Lords, it is my great pleasure to respond to the Minister. I will keep it brief. I have been using this Act for 40 years since 1983, and I assure the noble Lord, Lord Timpson, that this is the only clause which is interpreted, before the amendment, as somebody can apply for transfer and you have to find a bed. It is only the very new immigration Act that has led to this extraordinary transfer of information that has enabled somebody to put in these extra words, but they do not relate in any way to the immigration Act on which the amendment is based; in other words, it seems to me that we should just stick with what we have. I was trying to say that in as easy a way as I possibly could. It just seems to me that it is making it complex at a time when we need to be simple. There is a lot to learn in this Bill. There is a lot to be done. Nevertheless, if the Minister would like to give me a “teach-in”, I shall be delighted. I beg leave to withdraw the amendment.
Lord Kamall
“Duty to record patients not in the criminal justice system escorted to hospital by police(1) The Secretary of State must by regulations make provision to require the police and hospital trusts to record the number of patients who are not in the criminal justice system but are escorted to accident and emergency departments in hospitals by the police for treatment for mental disorder.(2) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.”
Lord Kamall (Con)
My Lords, I beg to move Amendment 99 in my name and to speak to my further Amendment 137; both are also in the name of my noble friend Lord Howe.
Our Amendment 99 places a duty on the police and on hospital trusts to record the number of patients not in the criminal justice system who are escorted to accident and emergency departments by the police for treatment for a mental disorder. The reason behind this amendment is that a number of people are taken into accident and emergency by the police because they exhibit behaviour that is a cause for concern, resulting from a diagnosed, or even an undiagnosed, mental disorder or learning disability. These patients are not necessarily placed under arrest, since they may not have committed any crime, but they are escorted to hospital by police.
Once in A&E, it is quite common that they could wait for six, 12 or even more hours before they see a clinician. This is obviously not an efficient use of police time; I know that my noble friend Lady May spoke to this earlier in Committee. More importantly, a police officer escorting a patient who is demonstrating challenging behaviour could exacerbate the problem. Also, a patient who arrives with or without a police officer may behave in a way that is seen as threatening by other patients, which could lead to their being arrested, as they are seen as at risk of harming themselves or others. The patient then finds themselves in the criminal justice system.
To avoid situations such as this, we are probing the Government to try to understand how often the police take patients into hospital for treatment for a possible mental disorder when they are not under arrest. This data should help us to understand how much police time is being spent accompanying these patients. This is not to take a particular view one way or the other; rather, it is to say that we need to have this information available so that we can fully assess the situation.
Our Amendment 137 states that the Care Quality Commission
“must publish a report on the efficacy of systems designed to prevent the introduction of illegal drugs into mental health units”.
Hospitals are entitled to prohibit patients from misusing drugs or alcohol on their wards, but what they can do to enforce those requirements is less clear, especially with detained patients. We accept that informally admitted patients can be asked to leave by hospital managers or even escorted off-site by security if they do not abide by a hospital’s rules on illegal drug use. However, patients detained under the Mental Health Act cannot be forced off premises for violating these rules.
The risks of illegal drugs being used in mental health units are obvious and severe. There is a possibility of those drugs interfering with prescribed medication, which could make that medication ineffective or even harmful to a patient’s physical or mental health. Further risks include the effects—such as psychosis or aggravating effects—of certain drugs, which could potentially lead patients to become more violent and cause harm to themselves or to staff. Whatever the result, the use of illicit drugs in mental health hospitals does not contribute to the treatment or therapeutic benefit of patients; I suspect that is a British understatement.
Much of the information and literature on substance misuse in in-patient mental health settings seems to be out of date. The major studies that we looked at were conducted in the early 2000s; these included a paper published by the Psychiatric Bulletin in 2000. I am happy to be corrected if there is more up-to-date data, but it seems that we do not have enough adequate and up-to-date data available concerning the prevalence of illegal drugs in mental health units. Can the Minister tell us whether the department has up-to-date figures? If not, does it have any intention of collecting these figures? Once again, this would help us to understand the scale of the problem.
Whether or not we are fully aware of the prevalence of illegal drugs in mental health units, there must be adequate safeguards in place to ensure that their use is as limited as possible. This amendment probes the Government for some answers on how they are trying to achieve this. By requiring the CQC to publish an annual report on this matter, we hope that a fuller picture could emerge, which would, we hope, inform the development of procedures and processes to reduce the harms related to illicit drug use. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, I shall speak to Amendment 151 in this group, which is in my name. It is a slightly diverse group, in that the noble Lord, Lord Kamall, has just set out his two amendments, which are very focused on specific areas, while mine is a very general one. However, they fall under the grouping as provided to us by the Whips; they are about monitoring and reporting, so there is some kind of sense here.
I start with the words of the noble Baroness, Lady Tyler, who in the previous group said that, without proper resources, this Bill is not going to work at all. That is what this amendment aims to address. I think the reason why it was regarded as within the scope of the Bill without any wrestling from me is that, specifically, the aim of this Bill is to have fewer people sectioned and fewer people under compulsory treatment orders. It aims to reshape and have earlier interventions, so that we do not see problems get so bad that we get to that point.
Baroness Barker (LD)
My Lords, this is an interesting collection of amendments. I suggest that they are all slightly flawed but with good intent behind them.
In relation to Amendment 99 in the name of the noble Lord, Lord Kamall, as members of the scrutiny committee will know, we spent a long time talking about what happens in A&E departments. Our committee was very lucky to have Rosena Allin-Khan as a member; she is not just the MP for Tooting but a practising A&E doctor at St George’s Hospital. When we were wandering off into theoreticals, she managed to drag us right back to what actually happens.
The key issue that we returned to, as a committee, was that no matter what the police’s formal position is about their involvement in mental health crisis treatment, they will be there. First, people will go to A&E because the lights are on and, secondly, some of them will be very distressed, so members of the public and members of staff will expect the engagement of police officers. A lot has been said about the particular legal status of somebody who is detained in hospital. They are not technically detained, because they are not in a mental health facility. Yet we know that there is a need for spaces within A&E that are properly built and staffed as safe havens for a time, so that somebody who arrives in a state of distress can be in an appropriate place where they can become calm and, therefore, not be taken off inappropriately into the criminal justice system.
I can see what the noble Lord’s amendment is getting at. It deals with it in a very partial way. Following our discussions, and the discussion we had the other day with the noble Baroness, Lady May, on her amendment about police involvement in crisis moments for people with mental health problems, I hope that we might be able to come up with an amendment which is a bit fuller than the one which the noble Lord has put forward.
Amendment 137, the second in the name of the noble Lord, Lord Kamall, is about monitoring what is being done about the use of illegal drugs and substances in mental health services. I listened carefully to what he said. Does he think that this does not happen already? I have been to a number of acute mental health services in London. It is clear that staff have to deal with very difficult situations. This cannot be an issue that does not happen; it must be part of the daily risk assessment of anybody working there. Does the noble Lord think that it is extensive enough to warrant this kind of reporting and is this another legal duty that we want to put on staff? Is it the best use of their time, compared to other things? I am in no way against getting good data out to solve problems, if that is the best way to do it, but I am not entirely sure that his amendment does that.
The noble Baroness, Lady Bennett of Manor Castle, is absolutely right to focus us again on a question that we have never had answered since 1983, about which resources go into acute services and which into community services. When we have a legal change, as we did in 2006 with the move to community treatment orders, what happens to the flow of resources? Crucially, what is the impact? We just do not have the answer. We have a health system which is very good at delivering itemised care. I suggest that it does not actually deliver that many care pathways. Even when it does, I have never seen any clear evidence that patient information and money flows are sufficiently sophisticated to explain to us whether any of the policy intents that we want to see—that all noble Lords who have ever spoken on mental health in this place have wanted to see—will come about. Her amendment may not be perfect either, but I certainly support the noble Baroness and her intent.
Lord Stevens of Birmingham (CB)
My Lords, I also support Amendment 151 from the noble Baroness, Lady Bennett. Whether such reporting should be specifically confined to community mental health services or be more expansive than that is obviously for debate. Whether it should be bi-annual or more frequently, or once a Parliament, does not really matter. The point is to try to continue to put a spotlight on the gap between need and availability in mental health when, for all the reasons that we have talked about, there is sometimes a tendency to downplay that aspect of health and what the health service does.
As the noble Baroness said, if we cast our minds back to last Wednesday when we had that debate about whether the apparent increase in demand for children and young people’s mental health services was real or not, it was paradoxical that, later that evening, the embargo dropped on the Lancet Child & Adolescent Health paper on mental health. It showed that there had been a genuine and unparalleled increase, particularly in younger women’s needs for specialist eating disorder services. Having young people who are severely ill is not an artefact of culture.
Having those kinds of data brought together in one place and published with the imprimatur of the Government would be helpful, rather than as a sort of periodic post-election exercise of the sort that the noble Lord, Lord Darzi, provided. He, of course, also drew attention to the gap that exists between need and the availability of mental health services. I think he used a figure from April 2024 to point out there were more than a million people waiting for mental health, learning disability and/or autism services, of whom 345,000 referrals had waited longer than a year and 109,000 of those were for children and young people under the age of 18. There is a real gap here and a need to continue to put the spotlight on it, to mobilise attention and resource. I welcome the spirit behind Amendment 151.
Baroness Fox of Buckley (Non-Afl)
My Lords, I have spoken a lot about the dangers of medicalising ordinary life and giving it a mental health label. The contribution I made in the previous Committee day on ADHD managed to get picked up by newspapers and generally cited as, “Cruel Baroness hates everybody that says they have ADHD”, so I have become even more infamous.
I welcome the call by the noble Baroness, Lady Bennett, for a review, because the more information and data we have about what is available in the community, the better. My only word of caution is that we should also recognise that, although we need more data, sometimes that data can be used as part of an advocacy for more resources and that data can be unreliable. My only caveat is that whatever the review does, it should not just take superficial headlines or self-diagnosis and self-ID as the truth, and that we should have some scepticism in that regard. We are going to have to understand the implications of this Bill when it is enacted for community care and provision. Therefore, I would welcome any attempt at getting to grips with the reality of that.
Lord Meston (CB)
My Lords, I briefly want to support Amendment 151 in the context of the delays experienced by CAMHS—delays in obtaining appointments and assessments, and in getting treatment. When I last had to look at this, only recently, those delays were still very serious. They are distressing for the children concerned and for their parents. They are also frustrating for local authorities, social workers and the courts, which need to make informed decisions but are unable to do so because they are still waiting to understand what CAMHS have to say about a particular child’s problems.
Baroness Merron (Lab)
My Lords, I thank all noble Lords for their amendments and considerations, including the noble Baroness, Lady Barker, for her observations on the group before us.
On Amendment 99, tabled by the noble Lord, Lord Kamall, services already capture data on instances of police using relevant powers to take patients to emergency departments. The Home Office collects national policing data on detentions under Section 136 of the Act and removal to a place of safety, including the number of times that A&E has been used. NHS England’s emergency care dataset includes data on mental health, including how patients are referred to hospital and their conveyance methods. I understand the points that the noble Lord was seeking to probe, but we feel that it is not necessary to create a new legislative requirement.
My response to Amendment 137, also tabled by the noble Lord, Lord Kamall, will focus on the position in England, because I imagine that that is what the noble Lord is particularly interested in, and of course different arrangements apply in Wales. We recognise the importance of preventing illegal drug use in mental health units and take the issue extremely seriously. All units must have robust policies in place to prevent the introduction of illegal drugs. To pick up the point that the noble Lord put to me about the recording of drug-related incidents, I assure him that such incidents would be recorded as a patient safety incident. While published data does not break down the nature of an incident to get an aggregate view at national level, details of incidents will nevertheless be shared with NHSE and the CQC to allow appropriate action then to be taken.
As I have referred to, providers must inform the CQC of certain events affecting their services. Inspectors review all reported concerns, as I have said, and that is important to determine the necessary follow-up actions. Issues that relate to the introduction and use of illegal drugs in an in-patient setting would be reflected in the CQC’s regulatory inspection findings where concerns have been identified, with potential consequences for ratings and for regulatory sanctions. We believe that there are already processes in place for the CQC in England to receive information about drug-related incidents. We feel that this is a better use of the capacity—which is not infinite, as the noble Lord knows—of the regulator, rather than having a national report on the overall efficacy of the systems that are in place.
Amendment 151 was tabled by the noble Baroness, Lady Bennett of Manor Castle, and spoken to by a number of noble Lords, and I am grateful for their input. A number of other amendments have called for statutory reports on current community services. As I have said previously in response to those debates, we recognise that reducing detentions cannot be achieved by legislation alone, and will absolutely depend on the right services in the community. The CQC publishes an annual survey on community mental health support, and we will be publishing a 10-year plan for the NHS later this year. Progress in community mental health services is already being made. In the last 12 months, more than 400,000 adults have received help through new models of care, which aim to give people with severe mental illness greater choice and control over their care. However, we recognise that more needs to be done.
I want to pick out a particular focus on innovation in this amendment. The noble Baroness, Lady Bennett, referred to the fact that the impact assessment does not include costs for community services. That is not quite the case. There are significant costs associated with the changes to learning disability and autism, which are included in the impact assessment. I agree that wider reforms in community mental health services are needed for the reforms to achieve their intended benefits in full, but they are not a direct consequence of this Bill. That is why they are not costed in the impact assessment. I hope that will be a useful clarification for the noble Baroness.
As I mentioned last Monday, NHS England is already piloting the 24/7 neighbourhood mental health centre model in England, building on learning from international exemplars, some of which have been brought to the attention of your Lordships’ House by various noble Lords, and I have welcomed that. Six early implementers are bringing together their community crisis and in-patient functions into one open-access neighbourhood team that is available 24 hours a day, seven days a week. That means that people with mental health needs can walk in, or self-refer, as can their loved ones or concerned professionals. We are currently commissioning an evaluation of these welcome pilots, which is due to report in June 2026.
The noble Baroness, Lady Bennett, referred to reports last week of an increase in the number of young people admitted to general hospital wards with mental health concerns. NHS England is in the process of developing a new model for specialised children’s and young people’s mental health services, supported by a new service specification and quality standards. That new model would support the delivery of specialist services in the community and in-patient settings to ensure that children and young people are treated in age-appropriate in-patient environments, as well as the least restrictive environment close to the child’s or young person’s family and home. The noble Baroness’s point is well made, and I hope that will be helpful.
Baroness Bennett of Manor Castle (GP)
I welcome what the Minister has said about the pilots and the significant changes being made to existing mental health services. Short of someone putting down an Oral Question or securing a debate, how will Parliament be able to monitor that? We know that, in the health service and more broadly, successful pilots happen but then disappear without trace and never get implemented. How will Parliament be able to assess progress from the pilot stage to implementation, along with broader changes? What mechanisms are there?
Baroness Merron (Lab)
The noble Baroness makes a fair point, and that is something I shall return to later in Committee. I am keen, as I hope noble Lords know, to speak in your Lordships’ House about progress that is and is not made, and I will continue to do that.
Overall on this group, given the amount of plans and reporting already in place, we do not think that additional statutory review, particularly in relation to Amendment 151, is necessary. For all the reasons that I have put to the Committee, I hope noble Lords will be good enough not to press their amendments.
Lord Kamall (Con)
My Lords, I thank the Minister for her response and thank all noble Lords for their contributions to this group. I should have also mentioned that I am very sympathetic to the intention behind Amendment 151 from the noble Baroness, Lady Bennett. Noble Lords throughout this debate have been speaking about community resources and accountability for those resources; indeed, I have a related amendment in the seventh group. In some ways, the Minister has partly answered that probing amendment.
I am grateful to the noble Baroness, Lady Barker, and will reflect on the points she made. As the noble Baroness, Lady Tyler, said previously, this was a probing amendment to see what data was being collected. Noble Lords will understand that, if we want to improve a situation, we need to collect data. It may not be perfect, and perhaps we can have some conversations between now and Report about that. I am very grateful that the Minister said that this data is collected. I wonder if she could write to us with links to where it can be found. That could address some of the concerns raised by stakeholders who wrote to us, which led to this amendment being tabled.
I remember that, when I read the work of the pre-legislative scrutiny committee, the Metropolitan Police service’s submission said that, in 2021, for the first time more patients were conveyed to a health setting in a police vehicle than in an ambulance. I wonder if that is still true or if that situation has been reversed. The purpose of these amendments was to seek what data was available, so that we can address the problems that Amendment 99 and 137 sought to address. With those comments, I beg leave to withdraw the amendment.
Earl Howe
“(1) An eligible patient shall have a right to create an advance choice document.(1A) For the purposes of this section, an “eligible patient” is a patient who—(a) has previously been detained under Part 2 or Part 3 of this Act, or(b) has been diagnosed with a mental disorder which may lead to the possibility they will be detained under this Act in the future.(1B) NHS England and each integrated care board must make such arrangements as it considers appropriate for—(a) ensuring that all eligible patients for whom it is responsible for the purposes of this section are informed of their right to create an advance choice document, and(b) helping an eligible patient to create an advance choice document.”Member's explanatory statement
This amendment gives all eligible patients the statutory right to create an advance choice document if they so wish.
Earl Howe (Con)
My Lords, Amendment 115 takes us to one of the features of this Bill which has been universally welcomed: the creation of advance choice documents or ACDs. An ACD is a means by which a person can record in writing their decisions, wishes and feelings about their treatment, should they be admitted to a hospital or a mental health unit as an in-patient, whether informally or detained compulsorily.
On that account, ACDs are a major component part of one of the Bill’s key strands, which is to give mental health patients better control over their own care—which, of itself, carries a therapeutic value. Giving that element of extra control also reduces the risk of discrimination creeping into any decisions about care and treatment.
The Explanatory Notes say that the people most likely to benefit from an ACD are those who may be detained in a mental health unit or who are likely to be hospitalised at some point in the future. This is because research has shown that ACDs have the potential to reduce time spent in hospital and, significantly, to reduce compulsory detention rates by up to 25%. So the creation of ACDs carries enormous potential.
Clause 42 sets out the duties of NHS England and integrated care boards in making the necessary arrangements for facilitating ACDs. Each of them is required to make information about ACDs available to the people for whom it is responsible, as defined in the clause, and to help such of those people as it considers appropriate to create advance choice documents.
Baroness Barker (LD)
My Lords, Amendments 117 and 125 in this group are in my name. I tabled them in part to reflect what happened during the work of the scrutiny committee. We had long discussions about the benefits of ACDs, which were originally brought in under the Mental Capacity Act. I speak as the person who spent an awful long time trying to get them into that Act. They were brought in in the face of some resistance from practitioners. In fact, they have worked extremely well. It has been helpful to both patients and practitioners to know in advance, particularly for people who may have fluctuating illnesses, what it is that they want to do.
I point out yet again to the Committee that often, these are referred to as a decision to refuse treatment, but they are not always that. In the case of some advance choice decisions, people may say to their healthcare providers, “At the moment I am well. I know that, when I am ill, I may try to refuse treatment, but I want you to override that; I want you to carry on the continuity of my care”.
My amendment reflects something we were told. It will be no surprise to people that the noble Baroness, Lady Finlay, drew attention to the work that has been done in palliative care not only to make sure that people are aware of their right to make an advance choice decision about what they may wish to happen to them as their care continues, but to make it electronically. That was found to be one of the biggest barriers for practitioners, who would say, “We were in a crisis, and we couldn’t see it”. A lot of work has been done within the palliative care world to bring in new standard ways of doing things electronically. There is a pilot going on with the assistance of a private company, Thalamos—I think King’s has been trialling it—and it has so far been found to be extremely successful.
On a very prosaic level, the noble Earl, Lord Howe, is absolutely right that the more that patients feel empowered, particularly in mental health care, the better they do. There are also rather simple things: it takes a lot less time on the part of staff to read the stuff and not to be for ever filling in endless bits of paper. There are time and money efficiencies that can be put into front-line care.
All I ask is that, in addition to what the noble Earl, Lord Howe, said, we go one stage forward. Let us be honest: some mental health patients can have quite chaotic lives and they might not be the most tech savvy, but they need the same opportunities as anybody else to get on to a system that we know works and which needs to become the default position for all practitioners, rather than, as it is at the moment, an aspiration.
Lord Stevens of Birmingham (CB)
I strongly support the amendments in this group, particularly that in the names of the noble Earl, Lord Howe, and the noble Lord, Lord Kamall. I share the concern, as I think I mentioned at Second Reading, that as currently drafted this proposition could amount to an unenforceable, verging on vacuous, set of requirements, be it noticeboards or helplines. I very much hope that, between now and Report, Ministers will look to adopt the alternative proposition that the noble Earl, Lord Howe, has put forward. If, for whatever reason, that is not the case, I hope that collectively we might return to the question.
I have two small further points. I think I am right in interpreting the Bill as saying that guidance will be issued as part of a Section 118 code of practice which will give clarity on the duties of ICBs and NHS England in relation to the ACD part of the new Bill. I hope that that will, among other things, specify in more detail the categories of people who must be offered an ACD in accordance with the new statutory right which we will, I hope, have created; by whom the offer may be made; the fact that it should be recorded digitally, for the reasons that the noble Baroness, Lady Barker, has set out; and a number of other elements. Expecting individual ICBs to figure it out is a recipe for a subtherapeutic dose, shall we say.
My third and final point is that early evidence suggests that if the benefits described in the impact assessment come to fruition in the real world then there will be a positive impact, including on reduced compulsory admissions. Admittedly these are small and non-UK studies, as the material makes clear, but there is nevertheless a case for getting on with ACDs at scale, if the benefits that are hypothesised might actually be obtainable. It is therefore surprising to see in Annex C III of the impact assessment the suggestion that ACDs will not actually come online until 2029-30. It will take relatively marginal additional staff costs and time to do this, for a relatively small number of people. The suggestion is that it will be a surprisingly precise 55,071 people who might get a new ACD in 2029-30 and about 8,000 people who will get an updated one. These are not huge volumes, and we may be under-egging the pudding, but if the benefits are potentially there to be had, why on earth should we assume that we do not get going on this until 2029-30?
For all those reasons, I support the amendments in this group, particularly that from the noble Earl, Lord Howe, and the noble Lord, Lord Kamall.
Lord Davies of Brixton (Lab)
My Amendment 121 seeks to add financial circumstances to the advance choice documents. I spoke in the last session of the Committee about the importance of the link between financial problems and mental health problems. I draw attention again to work that has been undertaken by the Money and Mental Health Policy Institute, which suggested this amendment, and declare that I am a member of its advisory committee.
It is very welcome to see, in Clause 40, that health commissioners will have a duty to ensure that services inform people about advance choice documents. I listened to the speeches of the noble Baroness, Lady Barker, and the noble Earl, Lord Howe, about extending the reach of these documents. I very much look forward to the reply from my noble friend the Minister, because they sounded pretty convincing to me.
Ensuring that everyone has access to an advance choice document is something that the Money and Mental Health Policy Institute has called for previously. We believe that this clause must go further to advance a specific prompt about people’s financial situation. It may seem a small matter, but for people who have been detained under the Mental Health Act, who are possibly too unwell to keep themselves safe, finances are understandably often the last thing on their mind. As I mentioned in a previous session, this does not stop bills needing to be paid, debts mounting and collections activities being escalated. Including a section on money in the document would help people have greater choice and control over their finances when they are in crisis.
A person recalling their experience of receiving treatment for their mental health shared this comment with the Money and Mental Health Policy Institute:
“I was never asked if there was anyone who was opening mail and keeping on top of my day-to-day living stuff … It’s always the same. I go in for treatment and come out to find my financial world is in a bigger mess than when I went in. The resultant terror, shame and guilt undoes all the work of the treatment and I am back in crisis again”.
This section should include explicit prompts which encourage people to reflect on and stipulate their preferences around finances. That can include consideration of how priority bills will be paid; preferences around access to credit; and advance planning to identify and empower a third party to manage their finances on their behalf, such as a lasting power of attorney or third-party mandate.
By including a systematic consideration of finances in ACDs and offering explicit prompts, people can be supported to have greater control and choice. It would better enable healthcare professionals, as well as the individual concerned, to put in place preventive measures to safeguard individuals from the financial harm that can be caused by, and exacerbate, mental health crises.
As mentioned previously, this is not about requiring healthcare professionals to support people with financial advice, or to deal with issues they have neither the expertise nor the capacity to deal with. It is about empowering them to identify people in need and refer them to the appropriate existing support.
Baroness Browning (Con)
My Lords, Amendment 122 is in my name and that of the noble Lord, Lord Patel. When I read through the Bill initially, it concerned me that there was no mention of lasting power of attorney, which, of course, is a legal document under the Mental Capacity Act. A registered lasting power of attorney for health and welfare will appoint attorneys chosen by the patient—the donor—at a time when they had capacity, to speak and act on their behalf if they lose capacity. This is particularly important for people who may periodically lose capacity due to mental disorder. The attorneys, of course, could also provide information about the patient, which is essential in distinguishing behaviours that may be associated with autism or learning disability but are not mental disorders. This does not, of course, apply to children, who cannot make lasting powers of attorney, but it would be remiss of me not to raise it with the Committee, because I have become rather concerned.
Baroness Tyler of Enfield (LD)
My Lords, I will very briefly underline my very strong support for Amendment 121 in the name of the noble Lord, Lord Davies. I remind noble Lords of my relevant interests in the register.
The noble Lord set it out very clearly so I do not need to add to what he said, other than to say there is a great opportunity for us to ensure that, for the first time in legislation, finances are considered a key part of supporting recovery from a mental health crisis. I am aware of far too many stories of people suffering from severe mental health crises or who are detained whose finances go into complete and utter freefall. It is so difficult for them then to recover their finances. That often means, in turn, that they have further mental health problems. That is all I wanted to say. I support the noble Lord, Lord Davies, very strongly.
Baroness Butler-Sloss (CB)
In the absence of the noble Baroness, Lady Murphy, I will just say that I support all these amendments. I expressed concern about under-16s and those aged 16-18, but that does not stop me thinking that these advance choice documents are an excellent plan. However, I am concerned about the point that the noble Baroness makes with Amendment 120. An independent mental health advocate would be extremely helpful, because there may be quite a lot of people who really would not know how to make an advance choice document, would be very concerned about it and might write down some really not very sensible things, when they could have help as to what they really wanted. I strongly support the noble Baroness’s amendment.
Baroness Merron (Lab)
My Lords, I am grateful for all the contributions in this group. I will start with Amendment 115, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall. Under the Bill, services should not only offer individuals who are likely to benefit from making an ACD information and support to do so, they should proactively support such individuals. This is functionally equivalent to a right to request an advance choice document.
The amendment applies to large groups. We have concerns that, for example, it may be practically challenging or sometimes inappropriate to contact people who were detained some time ago. We intend to identify groups in the code of practice that services should target; it can then be updated in response to changing best practice and emerging research.
On the point raised by the noble Earl, Lord Howe, and referred to by the noble Lord, Lord Stevens, and the noble Baroness, Lady Browning, about how advance choice document information is made available to patients, we will set out in the code of practice detailed guidance on how services should discharge their duties under the Bill to inform and support individuals to make an ACD. Any failure to implement the duty in this aspect of the code could ultimately be challenged in the courts. I hope that gives some indication of the strength of that provision in the Bill.
The noble Lord, Lord Stevens, raised the implementation timeline, as outlined in the impact assessment. We want to ensure that there is appropriate resource in the system before ACDs can be brought in. I am sure noble Lords understand that this is critical, for ACDs to have the right level of impact. For example, the effect of ACDs is dependent on the expansion of the second opinion appointed doctor service. In the meantime, services can, of course, progress with putting ACDs that deal with patient needs and wishes overall should they become detained. That would very much build on the work that South London and Maudsley, and others, have done.
I turn to Amendments 117 and 125 in the name of the noble Baroness, Lady Barker. I confirm that we are committed to mitigating the barriers that get in the way of creating an advance choice document. The code will make it clear that commissioners should provide accessible information in response to individual needs, with flexibility around how individuals make their preferences known—the point that the noble Baroness raised. We plan to create a standard advance choice document template for people to complete, with supporting guidance. That should prompt thoughts about the things that an individual may wish to consider and decide before they become unwell. I can assure noble Lords that the template will be available digitally as well as in hard copy. Our intention is that a digital version of the document will be created for easy access by professionals as needed.
Amendment 120, tabled by the noble Baroness, Lady Murphy, and spoken to by the noble and learned Baroness, Lady Butler-Sloss, has the stated intention that mental health in-patients create an ACD. While the Bill does not prevent this, in most cases it will not be the best time, as patients may be very unwell and lack capacity. Insights from the South London and Maudsley NHS Foundation Trust with King’s College London suggest that encouraging people to create an advance choice document after discharge—when their health has improved and the support network can help—can be useful. The person’s community mental health team is best placed to provide support, rather than an independent mental health advocate whose role is to support people who are detained. The duty on commissioners in the Bill is intended to focus on the community and other contexts outside of hospital. We feel that this is more likely to increase the uptake of advance choice documents.
Baroness Barker (LD)
The crucial question that the noble Baroness is asking is around which staff can access this information and where. That means that the information in the ACD has to be always available to whoever is seeing the patient, wherever they happen to be. Does that mean that, as in palliative care, the ACD will become part of an electronic patient record, and that there will be an expectation that all practitioners, wherever they are, will refer to it all the time?
Baroness Merron (Lab)
The noble Baroness makes a good point. I am sure she is aware that one of the main pillars of change as we move towards the 10-year plan is shifting from analogue to digital. I am sure that this will be part of those considerations.
I now turn to Amendment 121, tabled by my noble friend Lord Davies of Brixton and supported by the noble Baronesses, Lady Tyler and Lady Neuberger. The noble Baroness, Lady Tyler, spoke to this very amendment. We know that financial problems can worsen or trigger mental illness. We agree that individuals should be encouraged to include in their ACD any care and support to help them manage their financial circumstances when unwell. The code of practice will include guidance from professionals on this point, while the template will prompt people to consider financial matters.
On Amendment 122, tabled by the noble Baroness, Lady Browning, and supported by the noble Lord, Lord Patel, it is important for practitioners to be aware of, and, where applicable, to consult with, the person’s attorney. However, we do not agree with requiring people to include all of the information contained in the lasting power of attorney in their ACD. The document is owned by the individual, who should be free to include what matters to them. Some of the information in a person’s lasting power of attorney may not be relevant, and copying over its contents may introduce inaccuracies due to human error. We intend to encourage service users to include the existence of an LPA where applicable in their advance choice documents, and practitioners can then be made aware and take the relevant steps.
On Amendment 123, tabled by the noble Baroness, Lady Browning, we agree with the aim that is stated here. The code of practice will set out all of the groups which services should proactively target to make an advance choice document, including people on the dynamic support register. The code can be updated in line with emerging research and best practice, as I have said a number of times before, and can include detail and nuance that is not possible in primary legislation.
With those remarks from me in mind, I hope that noble Lords will feel able not to press their amendments.
Lord Scriven (LD)
I have one very quick question. Throughout the whole of Committee, since day one, the Minister has referred to the code of practice being updated. Can she tell us the date by which it will have been updated? It is quite important for implementation and some dates that the Minister keeps referring to. If she cannot let us know now, she could write to the Committee.
Baroness Merron (Lab)
I would be very glad to share the date if I could put a date on it. It will be after Royal Assent, and I will keep noble Lords updated.
Earl Howe (Con)
My Lords, I very much appreciate the support from around the Committee for my Amendment 115. I support all the other amendments in this group, each of which is designed to bolster the rigour and thoroughness of the advance choice document process.
It is good to hear from the Minister that the code of practice will include guidance on how information on ACDs will be made known to relevant would-be patients. I shall need to reflect on this, but I confess I retain a worry in this area. The CQC in its annual report of 2020-21 on monitoring the Mental Health Act reported that many patients do not have their rights explained to them during their treatment. This is despite the existing requirement in the Mental Health Act code of practice for hospital managers to provide information both orally and in writing. Clearly, if someone without an existing ACD is admitted to a mental health unit for treatment, it will be too late for them to execute a valid ACD during that episode of care. The time to be informed that an ACD could be an appropriate thing for them to draw up is once they are discharged, to cater for possible future contingencies.
I suggest that the CQCs finding is still relevant, its point being that the NHS is not all that good at providing information to patients in a timely or appropriate way. Therefore, I think that creating a duty to do so would add value—perhaps not in the precise terms I have used in the amendment, but in similar language. That could, incidentally, be achieved quite easily if mental health patients were automatically invited to complete a debriefing report following discharge from hospital in the way that I suggested in an earlier amendment.
The prize, let us remember, could be significant. I refer noble Lords back to remarks by the noble Baroness, Lady Murphy, in an earlier debate, where she indicated that independent advocates have been proved as central to the success of advance choice documents—a facilitator, in other words. She referred to a study in North Carolina that showed that providing a facilitator in the form of an independent advocate increased the number of people making a psychiatric advance directive from 3% to 60%. That is a very powerful set of figures.
I hope the Minister will be open to further discussion on this and the other amendments in the group between now and Report. Meanwhile, I beg leave to withdraw my Amendment 115.
Baroness Merron
Member's explanatory statement
See the explanatory statement for my amendment to Clause 4, page 5, line 20.
Inheritance Tax, National Insurance and VAT
(3 days, 16 hours ago)
Lords ChamberRead Full debate Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Lord Morrow
To ask His Majesty’s Government what consideration they have given to the different impacts in the nations and regions of the United Kingdom of the removal of the agricultural property relief for inheritance tax, the increases to employers’ National Insurance contributions, and the extension of VAT to private school fees.
Lord Morrow (DUP)
My Lords, the government-proposed changes that will come into effect from April of this year present a glaring threat to food security across the United Kingdom. For example, Northern Ireland’s agricultural industry provides food for over 10 million people throughout GB. Over 24,000 family farms in Northern Ireland will have no certainty about their futures, and therefore no certainty about the contribution they make to our food production and security. As farmers struggle to maintain the cost of uptake, little by little farms will be subsumed by the economic burdens, ending the line of succession necessary to continue feeding our country.
Figures from HM Treasury illustrate the impact that our Northern Irish farmers have among the nations and regions of this United Kingdom, contributing £1,333 million to the UK’s total agricultural GVA—gross value added—the highest proportion of all. They give so much to our economy, yet the Government are content to deprive them of succession and stability. The Prime Minister said last year,
“losing a farm is not like losing any other business—it can’t come back”.
How right he was. Their contribution is woven into the social and economic fabric of this country; the farming community gives so much and is rewarded so poorly.
The changes put forward by the Chancellor last autumn will be the death knell for many farming families. Recent years have been characterised by difficult circumstances for the agricultural community, be that unprecedented weather extremities or rising prices amid the cost of living. In Northern Ireland, our agricultural sector has been held in a chokehold by the Windsor Framework, as farmers are subject to onerous regulations and red tape. These inheritance tax reforms compound a serious negligence of the agricultural community, as family members who have worked on farms all their lives will be forced to sell land and assets to cover the bill of a parent’s death. Can the Government in all conscience accept that their reforms will end innumerable careers?
As we consider the impact of the changes to agricultural property relief on inheritance tax across the nations and regions of the United Kingdom, it is worth noting that Northern Ireland will be disproportionately hit by these policies. Although £14,000 per acre is reported as the average price—and I could cite some instances where £24,000 has been realised for the same size of land—an acre of ground is much more expensive in Northern Ireland than in any other region of the United Kingdom. I know that because I worked on that for some 30 years of my life. Many of these small to medium-sized family farms will be made subject to the new rules, with DAERA reporting that 36% of farms in Northern Ireland own more than 27 hectares of land.
I have in my hand an advertisement from one of the local farming papers in Northern Ireland, which is offering an agricultural holding extending to just over 37 acres, with a residential farmhouse. The asking price is just £1,035,000. Yet we are told that most farmers will not be caught in the £1 million trap. I think the advertisement dispels that claim; if anyone wants a copy of it, I am happy to give it to them.
The Institute for Fiscal Studies rebuked any suggestion by the Government that the national insurance increase will lead to anything close to the £25 billion revenue claimed, stating that this move
“will result in lower wages, reducing the amount raised from employer NI and reducing employee NI”.
In reality, the Chancellor has put before business a choice between product prices and staff. This is wrong and immoral. Sainsbury’s announced at the weekend that the Government’s plans will compel it to cut 3,000 jobs, slash 20% of senior management roles and close 61 hot food cafes around the country. Other leading grocers have made similar statements and have announced that job cuts will follow. In the case of Sainsbury’s, 3,000 people’s livelihoods, 3,000 sources of income and 3,000 jobs will now be culled thanks to Labour’s plans. Although the second-largest grocer in the United Kingdom is facing grotesque choices such as these, we ought to spare a thought for the small and medium-sized businesses which cannot afford any remedial measures.
The Government’s plans are detrimental in many ways—not least the reality that many businesses will simply be unable to absorb the increased cost of national insurance contributions or the inflation-busting wage increases—but the bill still has to be paid, and that will be shifted on to the consumer, who will have to contend with higher prices amid an extremely difficult time for many families across Northern Ireland. In Northern Ireland, the rise in the national insurance contribution rate from 13.8% to 15% will hit our agriculture sector hard. Labour has dealt yet another blow to our industrious farming communities, as this will directly impact the security of thousands of jobs and pay conditions. The Government, through their combined economic assault on agriculture, have opened the door to rising food prices, a threat to food security, inflated consumer prices and the dissolution of many farms across Northern Ireland.
At the beginning of this month, a 20% standard VAT rate charge to private, boarding and independent schools came into effect. The Government expect private school fees to increase by around 10%, and it is envisaged that some 37,000 pupils will leave the private sector. It is patently obvious that this is an ideological move by the Labour Government, ending parental choice as to where their child may be educated, out of a fear of inherited classism. This is nonsensical and designed to fit Labour’s plans to redesign the national curriculum; it is a fear of dissidence.
However, Labour has not given consideration to the disproportionately negative impact this policy will have on Northern Ireland compared with the rest of the UK’s nations and regions. Currently, about 2,500 pupils in Northern Ireland attend grammar school preps and Christian and other independent schools, according to the BBC. While some places in England, such as Eton, charge around £50,000, private schools in Northern Ireland charge a substantially reduced amount, often as low as £2,000. The parents of these children will inevitably face a stark increase in their school fees, as principals will have little to no choice but to up the fees they ask for, meaning that many children will have to be taken out of their schools, and that their education will be disrupted.
Of most concern is the Government’s lack of care for the independent Christian schools throughout Northern Ireland, of which I understand there are nine. These schools do not have the same volume of money that others have and, instead, offer a much smaller fee. The Reverend Brian McClung, administrator of Newtownabbey, an independent Christian school in County Antrim told the BBC that they already fundraise to cover the total cost of running the school in order to keep fees affordable, but in this scenario they have no option but to charge parents more.
Religion is a protected characteristic in Northern Ireland, no matter what side of the divide you might come from, and if parents wish to send their children to a school where they can be taught under the auspices of Christian values, then surely that is their right. No Government have any right to infringe upon the practices of Christian schools, by inflating their fees just to appease an ideological battle against class. We know that these schools are far from being classist echo chambers, as the Government might label them. The removal of the VAT exemption for private schools could see funding challenges, followed by a massive enrolment decline and potential school closures, which will reduce educational choice and place greater strain on the already oversubscribed waiting lists.
The voluntary sector does not escape either. I am sure many noble Lords have read the excellent briefing paper produced by Age UK. When asked, Age UK said it may well have to reduce the level of service that it provides because of these costs—it will have to reduce its service offer and seriously consider if it can continue to deliver contracted services without realistic uplifts.
I see that the Whip is looking sternly at me and I do not want to fall out with her, so I will listen intently to what everybody else has to say.
Lord Davies of Brixton (Lab)
We need to thank the noble Lord, Lord Morrow, for introducing this debate. I admire the passion and clarity of the arguments he presented; unfortunately, I just do not agree. I think the Labour Government’s adjustment—the Motion says removal, but of course it is not being removed; it is being cut back—of APR for inheritance tax, the increase in national insurance contributions and the extension of VAT to private school fees are all steps towards greater economic fairness in funding for public services.
We had a debate on the school fees issue, in which I spoke and I do not wish to repeat what I said there. We are having an apparently endless debate in the Committee on the national insurance contributions Bill, and I will save my remarks on that for that arena. But I will add that the point that the money will be spent on improved public services—providing jobs and buying in services from suppliers—is always ignored by the opponents of the increase in national insurance contributions. Perhaps my noble friend could say something about the positive impact that will have on the economy, as reflected in the figures from the OBR.
I am running out of time, but I will say something about inheritance tax. I do not give advice on inheritance tax, but I do read the financial pages. Clearly, until this whole debate took place, the general view was that inheritance tax was essentially voluntary; you paid it only if you did not arrange your affairs appropriately. Now is not the time to provide advice but, given succession planning and insurance, the problems can be overcome.
Baroness McIntosh of Pickering (Con)
My Lords, I congratulate the noble Lord, Lord Morrow, on securing this debate. I will focus my remark on the Budget proposals threatening to break up and cause the collapse of family farms, in turn taking land out of food production while also threatening prospects for tenant farmers.
This proposal is economically illiterate. The current policy was permitted in the first place precisely because farms are capital rich and cash poor. Farmers contribute significantly to the UK economy. The figures from the ONS demonstrate that, in 2022, agriculture contributed £12.7 billion to England’s GVA—of which Yorkshire and the Humber contributed almost £1.5 billion—and in Scotland agriculture contributed £2.5 billion. So why would any Government imperil that part of the economy, and how much would it raise?
In the Urgent Question repeat today, the Minister admitted that figures from the OBR show that these proposals for APR and inheritance tax, taken together, will raise only £0.5 billion and not before 2029-30. As the OBR Supplementary Forecast Information Release of 22 January shows:
“the yield from this measure is not likely to reach a steady state for at least 20 years”
and that
“This policy costing was assigned a ‘high’ uncertainty rating”,
owing to the uncertainty of how farmers would respond to the measures
“given the range of options potentially available. This in turn adds uncertainty to the modelling of the behavioural responses”.
You could not make it up. It is a highly uncertain as well as highly undeliverable policy, representing a complete onslaught on rural life from a metropolitan elite, on top of the cancellation of the rural services delivery grant and planning laws leading to the destruction of the countryside. This is a cruel, nonsensical policy and should be reversed.
Lord Morse (CB)
My Lords, I will focus on employers’ national insurance exclusively in my three minutes of stardom.
An employer’s national insurance has no direct relationship to that employer’s profitability and thus to that employer’s ability to pay more tax. If an employer happens to be in an industry that habitually has payroll costs at a relatively high proportion of its total expenditure, it will necessarily attract a higher cost from the increase in employers’ national insurance than if it had the same turnover but spent a lower percentage of its outgoing costs on payroll but, for example, a higher amount on technology, data and other non-labour costs.
If a business has a very substantial turnover but relatively low margins, such as a lot of the major construction contractors—and, in the past, Carillion—then its ability to pay more national insurance may be much less than it would be in another more profitable sector. Not all big businesses have equally broad shoulders—I know that is a popular government expression—and some big businesses may find the additional NIC charge very much more damaging than others. It may even be the final straw that breaks the camel’s back in some cases.
Different industries form larger or smaller proportions of economic activity in different areas of the UK, and they tend to be concentrated. If a high proportion of local business activity happens to be in a high-payroll model of business, this means that the local economy is likely to be disproportionately impacted. We are hearing examples of that in Northern Ireland, but it is not just there.
What I am saying is not rocket science, I must admit, but I am not sure that HM Government have considered these points of differential damage. If not, they should do so.
The Lord Bishop of Lincoln
My Lords, it is entirely legitimate for the Government to target rich business owners and billionaires who have bought farmland for the sole purpose of avoiding inheritance tax, However, Jeremy Moody of the Central Association of Agricultural Valuers said recently that the reform of APR
“hits the people it is supposed to protect, and protects those it is supposed to hit.
In doing this, we are jeopardising our food security, the resilience of our farming sector and the very livelihoods of many farmers and their families.
On Saturday last, I visited Henry Ward, who farms with David, his 85-year-old grandfather outside Lincoln. They own half the land they farm. David paid off the mortgage only last year. Five generations of the family have farmed there, and now David is made to feel a burden and told me it would be best if he were to die before next April. With an ageing population of farmers, this is a widespread feeling.
The likelihood of the break-up of farms makes tenancies uncertain and undermines the job security of agricultural workers. Inheritance tax would be about £1.5 million for Henry, on a farm that had a net income last year of £45,000. Land only recently finally secured would have to be sold.
The Country Land and Business Association, a rural membership organisation representing half the rural land in England and Wales, has called for a review of the changes to APR, and last week several major supermarkets echoed this plea. Will the Minister commit to further consultation and engagement with stakeholders across the sector, including family farmers, to mitigate what might otherwise be a truly disastrous negative spiral?
Lord Thurlow (CB)
My Lords, I will focus my comments on small farms, and refer to my entries in the register.
The impact of removing APR will engineer the collapse of many small family farms, as we have heard. They struggle to survive as it is. Who would have believed that our own Government would be the assassin? In our fragile countryside, the wider impact will include, among others, schools, shops, pubs, and rural engineering and other small businesses. We will witness the slow destruction of the social cohesion of these communities, which have survived for centuries. Small farms are not an anachronism; they are vital and important contributors. What do the Government think they are doing? This is a clear example of national self-harm from those elected to defend and protect.
It is also economically illiterate, as we have heard. It will raise little money spread over many years, yet the damage to families and communities will be irreversible. This astonishing naivety betrays ignorance of the sector within government. We should not forget that these families work longer hours than any politician or Defra bureaucrat. They are unpaid, often husband and wife teams simply trying to make a profit. They have no paid holidays and no index-linked pension. Government is responsible for assisting small farms with help and encouragement, not wilful destruction, and Labour promised it was business friendly.
What of food security and food miles? Have the Government forgotten climate change: the impact of aeroplanes criss-crossing the world every day, delivering food, much of which can be produced at home? As we heard, even the major supermarkets, which try to buy local, have written open letters asking the Government to think again. Paying IHT, even at reduced rates initially, will undeniably force the sale of small farms, destroying these small family businesses. Many Acts of Parliament are subject to monitoring and review. This is not a proposal which can be monitored or reviewed; it will be too late.
Lord Browne of Belmont (DUP)
My Lords, I support my noble friend Lord Morrow’s Question.
The tax changes made in the recent Budget will clearly affect many parts of society throughout all the regions of the United Kingdom. With reference to the increase in national insurance contributions, it is clear that additional tax burden will fall not only on employers but on other taxpayers, particularly employees, who may face wage cuts or indeed the loss of their jobs. The Office for Budget Responsibility forecast in 2024 that workers would bear around 60% of the national insurance increase, rising to 76% in the medium term. Surely, similar amounts of tax could have been raised without causing such harm to the labour market. How does such an imposition sit with Labour’s pledge not to increase taxes on working people?
I fully concur with the justified criticisms that other noble Lords have made of the abolition of inheritance tax agricultural property relief on farmland. It seems abundantly clear to me that this relief is a financial necessity for hard-working farming families, who have perhaps passed their land on through many generations. Surely the law should have been amended to ensure that those who are not working farmers and who have invested in agricultural land purely to avoid inheritance tax would not be entitled to the relief. Is it not time that the Government started to talk up the economy rather than deal in the negatives?
Lord Elliott of Ballinamallard (UUP)
My Lords, I welcome this debate and I declare an interest as a farmer and a landowner.
First, I want to touch briefly on the national insurance contributions increase. This will be increased on the employers, but who will really pay for it? The people who will pay for are the consumers, the people who use the services and buy the goods, because the employer is going to pass that on. So what is it? It is really a tax—another tax on the individuals and the people of our community. That is what the additional national insurance contributions are.
I move on to the inheritance tax and the APR: damaging, unfair, destructive—we have heard all these terms for the last couple of months around this policy, and that is exactly what it is. It is going to do exactly the opposite of what I believe the genuine intention of the Government is. So there is bound to be a way around it. Look at the active farmer issue: safeguard those active farmers and the small family farms and hit the bigger corporations, because those are the people who will ultimately gain out of it now.
We need to produce food here in an environmentally safe way, that is good for the consumer, and that has better welfare standards than importing it from those countries that do not have the same welfare standards as we do in the United Kingdom, which we pride ourselves on.
So, please, let us not throw the baby out with the bathwater here. I say to the Government: make sure that you protect those family-run farms in the United Kingdom that can produce that good food. I just believe that this is an unfair picking on the family farm that will ruin that sector, and all it will do is provide more land and more income for the big, commercialised people.
Lord Kempsell (Con)
My Lords, I too thank the noble Lord, Lord Morrow, for securing this important and timely debate. Given the time constraints, I intend to confine my comments to the impact of VAT on independent schools in the nations and regions.
I suppose I could not do any better than to associate myself with the noble Lord’s introduction to this Question for Short Debate, because he adumbrated so brilliantly the unintended consequences that Ministers have unleashed with this nonsensical and ill-formed policy. I think that the Government thought they were targeting a certain class demographic and a certain income demographic with their decision to impose VAT on independent school fees, but in fact they have unleashed a mess of unintended consequences across the country.
One that I have been focusing on is the impact of this decision on Armed Forces families, who have been particularly badly hit. Many of them have to send their children to boarding schools so that they are available to be active on operations. They are, of course, based across the whole of the United Kingdom and abroad. I thank Ministers for their concessions on that issue at the Budget, although there is more to be done.
Let me focus the attention of your Lordships’ House on just where this impact is being felt most. It is across the nations and regions, because there have been school closures in the south-east, the West Midlands, the east of England, Scotland—all over the country. The disproportionate degree of closures of independent schools that we see in rural and semi-rural areas is another example of the ill-thought-out consequences of this policy. When the Minister sums up, will he assess that and allow us to have an understanding of the Government’s thoughts on the disproportionate impact across the nations and regions of the decision to impose VAT on independent school fees?
Lord Weir of Ballyholme (DUP)[V]
Whatever the stated intentions of the Government are with this raft of measures, it is clear that the suspicion is that they are, at best, ideologically driven or, at worst, tribal in nature, with farmers, those sending their children to private education and even pensioners above the level of pension credit being seen as fair game. It is economically illiterate and, I believe, runs contrary to the Government’s aims.
No better example of this can be given than the proposed imposition of VAT on private schools. The negative impact of the diversion of pupils is not simply supposition or scaremongering but has been proven by experience. About 15 years ago, the then Sinn Féin Education Minister imposed a similar measure on prep schools in Northern Ireland, with the end result that fees rose by about 20%. The impact on families was that schools became unaffordable; some schools became unsustainable. The unintended consequence was that instead of parents paying 70% of the cost of their children’s education, the state was left to pay 100%. Some 15 years on, the number of prep schools in Northern Ireland has decreased by one-third as a result of these changes and the number of pupils attending those prep schools has declined by 40%. In pure financial terms, for every pound that was saved by the state, £2.30 has had to be spent in additional educational expenditure.
The real victims of this are not the very rich. They will survive all this raft of measures. The people who will really suffer are medium and small farmers, consumers, employees and many pensioners. I simply urge the Government to think again, look at the unintended consequences of this and, even at this eleventh hour, do a U-turn on this raft of deeply damaging proposals.
The Duke of Somerset (CB)
I declare my interest as a farmer and an employer in the West Country. All three of these changes will have a large detrimental effect on the economies of all the UK regions and thus hinder growth.
The Library briefing paper, while exposing some regional differences, indicates that wherever a farm is located the average capital value exceeds £1 million—to which, of course, must be added assets such as tools, livestock, non-agricultural buildings and tractors. A single tractor can be worth several hundred thousand pounds.
These Budget changes come at a time when family farms are fearful for their future, lacking confidence in government policies, with accelerated chopping of the BPS payments, pauses in SFI capital grants and now increased national insurance contributions for their employees. This fear is manifested in investment cutbacks. Farm machinery sales are 15% down on the year—so much for growth. Many of these family businesses, farms or not, have been passed down from generation to generation, each one making improvements and investments to grow the business; all are now to be taxed on these improvements.
It is not farmers’ faults that long-held land has hugely increased in value. Values are determined by factors outwith their control. Landowning farmers are thus asset rich but cash poor, meaning that many who inherit a farm will find it impossible to fund the 10 years of tax from their meagre capital returns, typically of around 0.5%; that is a government figure. There is less money for investment and less growth. It says a lot for the Government’s attitude that they are proposing an amendment to the Finance Bill to alleviate some of the pain for non-doms while ignoring similar representations from our hardworking, indigenous family businesses.
Lord McCrea of Magherafelt and Cookstown (DUP)
My Lords, I refer to my interests in the Members’ register. The decision by the Government to remove agricultural property relief for inheritance tax is going to adversely impact Northern Ireland’s farming community. Succession is extremely important when we consider the farming industry. However, Labour’s decision to abolish agricultural property relief will ensure that innumerable farms across Northern Ireland have their line of succession culled.
Families will struggle to foot the bill after a parent’s death, meaning that family members who have worked on farms for decades will instead be forced to split or sell off assets. Farmers feel misled and betrayed by this Government and although Treasury Ministers have parroted the line that this will affect only a few family farms, that is totally untrue and proves that this Government are out of touch with reality.
The irony of Labour pursuing this policy is its lack of consultation with those actively involved in the agricultural industry. Without farmers, there is no food: that is the bottom-line reality. Labour has declared war upon hard-working farmers and their families, threatening succession, food security, industry workers and consumer prices. Also, Labour’s planned increase in the rate of national insurance contributions will decimate the voluntary sector across Northern Ireland. These voluntary groups provide support for the vulnerable, elderly and disabled, offering mental health services, community programmes, employability support, physical welfare and educational opportunities. How can this Labour Government knowingly jeopardise these organisations and take a blowtorch to the vulnerable?
Finally, the extension of VAT to private school fees will ensure that many of these establishments will close and children will have their future prospects compromised. So much for a caring Government.
Baroness Kramer (LD)
My Lords, the Tory Government, especially in their last years, implemented a scorched-earth strategy on public finances, and I have great sympathy for the Government in facing such an inheritance. That is why, in our election manifesto, we on these Benches listed tax increases which would have avoided the three tax changes under discussion today, none of which we support. We regard family farms as vital and often economically precarious. We are trying hard in the NICs legislation to get exemptions for the health and care sectors and for other crucial groups. We will not support a new tax on education.
However, the question for debate today is the impact on the nations and regions. I thank the Library for its work, which underscores the problem. I have spoken before about Scotland. Scottish public sector organisations will be reimbursed for employers’ NICs not on a per-job basis but based on the Barnett formula, which comes up with a much lower number. That is not within the purview of the Library discussion. Looking at the Library numbers, the north-east looks most affected by the farm inheritance tax changes, and the east of England, London and the south-east are most affected by the NICs changes and the VAT on schools. However, we cannot assess the real impact just by looking at these cost numbers, which do not reflect the underlying economic vibrancy of an area, its resilience or its dependence on particular industries, and therefore the narrower impact.
Cost and impact are different. I can intuit that thriving places such as London and university towns will cope, but existing disadvantaged areas will be far less able to do so. The Tories resisted give us the much greater detail and complex analysis that would have enabled us to understand the impact of changes in taxation and national insurance, but I turn to this Government and ask: so that we can understand these complexities, can we please have that much better analysis? In turn, it might reshape policy.
Baroness Neville-Rolfe (Con)
My Lords, I hope that last autumn’s Budget has been a useful learning experience for the Government. Today’s debate has been about regional impact, especially in Northern Ireland, and I agree with almost everything that has been said about its devastating impact. The CBI has said today that pessimism is widespread across the private sector and that firms expect another significant fall in activity over the next three months.
The truth is that labour-intensive sectors such as retail and hospitality are suffering a triple whammy throughout the country, brought about first, by the changes in NICS; secondly, by the rise in the national minimum wage, especially for the young; and thirdly, by the costly and counterproductive new employment regulations pioneered by Angela Rayner and her union friends. As the noble Lord, Lord Morrow, said, Sainsbury’s announced last Thursday plans to cut 3,000 jobs— a bid to save money ahead of a £140 million leap in costs resulting from the Budget. Confidence has plummeted everywhere. Two of my favourite Wiltshire shops, in Salisbury and Tisbury, are among many shops and pubs that are now closing their doors. In light of these unfortunate events, can the Minister confirm whether the Government value these industries? If so, what will they do to help them across the UK?
The Financial Secretary to the Treasury (Lord Livermore) (Lab)
My Lords, I begin by congratulating the noble Lord, Lord Morrow, on securing this debate and on his opening speech. I am grateful to all noble Lords for their contributions this evening. Due to the popularity of this debate, I know that noble Lords have been restricted to very short contributions. Fortunately, we have had previous opportunities to debate the measures covered by the Question during the Budget debate and the recent Conservative Party debate on agricultural property relief. We will of course have further such opportunities to discuss these important issues during the passage of the National Insurance Contributions (Secondary Class 1 Contributions) Bill and the Finance Bill. As I address the three measures covered by the Question this evening, I assure noble Lords that I have listened carefully to all the points made and that I understand and respect the concerns of all noble Lords.
I begin by considering the context of the decisions that we took on tax at the Autumn Budget, the reasons they were taken and the economic challenge that confronted this Government upon taking office. The Government inherited three distinct crises: a crisis in the public finances, as the noble Baroness, Lady Kramer, said; a crisis in the public services; and a crisis in the cost of living. As the Chancellor has said, this was therefore a once-in-a-generation Budget, on a scale commensurate with the challenging inheritance that we faced.
The Government inherited a £22 billion black hole in the public finances, consisting of a series of commitments made by the previous Government which they did not fund and did not disclose. Public services were also at breaking point, with NHS waiting lists at record levels, children in portakabins as school roofs crumbled, and rivers filled with polluted waste. Working people had suffered from the worst cost of living crisis in a generation, with inflation having reached 11%, coupled with a decision by the previous Government to freeze income tax thresholds, which cost working people some £30 billion.
Faced with this reality, any responsible Government would need to act. That is why this Government took action to wipe the slate clean, repair the public services, protect working people and invest in Britain. We did so in the fairest way possible, by keeping our promises to working people not to increase their national insurance, VAT or income tax. That involved taking some very difficult other decisions on spending, welfare and tax.
One such difficult decision we took in the Budget was the reforms to agricultural property relief, the first measure mentioned in today’s Question and addressed by the noble Lords, Lord Morrow, Lord Thurlow and Lord McCrea, the noble Duke, the Duke of Somerset, my noble friend Lord Davies of Brixton, the noble Baroness, Lady McIntosh of Pickering, and the right reverend Prelate the Bishop of Lincoln. Under the previous system, the 100% relief on business and agricultural assets, introduced in 1992, was heavily skewed towards the wealthiest landowners and business owners. According to the latest data from HMRC, 40% of agricultural property relief is claimed by just 7% of estates making claims. That amounts to just 117 estates claiming £219 million of relief. It is neither fair nor sustainable to maintain such a large tax break for such a small number of claimants given the wider pressures on the public finances.
A secondary issue relates to the purchase of farmland. The reality today is that buying agricultural land is now one of the most well-known ways to shield wealth from inheritance tax. This has artificially inflated the price of farmland, locking younger farmers out of the market. That is why the Government have changed how we target agricultural property relief and business property relief from April 2026, in a way that maintains significant tax relief for estates while supporting the public finances in a fair way. Under the new system, individuals will still benefit from 100% relief for the first £1 million of combined business and agricultural assets. Above this amount, there will be 50% relief. That means inheritance tax will be paid at a reduced effective rate up to 20%, rather than the standard 40%. All estates making claims for these reliefs will continue to receive generous support, at a cost of £1.1 billion to the Exchequer in the first year.
The reliefs also sit on top of other spousal exemption and nil-rate bands which exist. Therefore, a couple with agricultural or business assets will typically be able to pass on up to £3 million of assets without any inheritance tax having to be paid. This change will apply in the same way across all nations and regions, and we expect that up to 520 estates across the UK will be affected in 2026-27. The Government are also investing £5 billion over this year and next to support farming and food security.
The second measure in today’s Question is the increase in employer national insurance contributions, raised by the noble Lords, Lord Morrow, Lord Morse, Lord Browne and Lord Elliott. To protect small businesses, the Government have also more than doubled the current employment allowance from £5,000 to £10,500 and expanded its eligibility. Of course, I understand that some of these measures mean asking businesses to contribute more, and we have consistently acknowledged that the impacts will be felt beyond business too. These are difficult decisions, and not ones we wanted to take. But, taken together, the measures mean that more than half of businesses with national insurance liabilities will either see no change or see their liabilities decrease; 865,000 employers will now not pay any national insurance at all, and over 1 million will pay the same or less than they did before.
These changes will apply in the same way across all nations of the UK. The Government are also setting aside support for the public sector across the UK of £5.1 billion by 2029-30. This support will be allocated to departments, and we have already confirmed that the devolved Governments will receive a share of the £4.7 billion the UK Government have set aside. As the noble Baroness, Lady Kramer, said, the devolved Governments will receive this funding through the Barnett formula in the usual way. Exact allocations will be confirmed in due course; however, this is the normal operation of the funding arrangements between the UK Government and the devolved Governments.
The Government do not publish data covering detailed regional or national impacts. The location of the headquarters of a business and the location of its economic activity are not necessarily the same and are often split across multiple locations. However, the Government have published a tax impact and information note, which sets out a comprehensive UK-wide analysis of this tax measure.
The final measure covered in the Question is the introduction of VAT on private school fees, raised by the noble Lords, Lord Morrow, Lord Kempsell, Lord Weir and Lord McCrea. Nine out of 10 children in this country attend state schools; however, too many children do not get the opportunities they deserve because too often these schools are held back by a lack of investment. That is why the Government introduced VAT on private school fees from 1 January this year: to secure the additional funding needed to improve educational outcomes across the UK, in all nations and regions. Together with our changes to business rates, this will raise around £1.8 billion a year by 2029-30 and just under £500 million in this year alone.
VAT is a reserved tax, and our objective is to maintain consistent VAT treatment of different types of schools across the UK. Therefore, all schools across the nations and regions that meet the definition of a private school, as set out in the Finance Bill, are within scope of this policy. Education is of course a devolved matter, and the circumstances of individual schools will vary across the UK.
Business rates are also fully devolved. Scotland has already enacted legislation removing charitable rate relief from private schools, and the Welsh Government have published a consultation. The Government do not expect that private schools will pass on the full amount of VAT in fees, and the increase in fees in recent years suggests that private school fees are highly demand inelastic.
I can also assure noble Lords that our changes will not impact pupils with the most acute special educational needs, where these can be met only in private schools. Currently, local authorities fund pupils’ places in private schools where their needs can be met only in a private school. In these cases, local authorities will be able to reclaim the VAT from the Government. As the noble Lord, Lord Kempsell, said, we have also chosen to support our diplomatic staff and serving military personnel, who are required to be mobile and are often posted overseas. That is why we have increased funding for the continuity of education allowance, which provides support for school fees to serving diplomatic and military personnel so that their children’s education is not disrupted.
To support children in the performing arts, the Government have also adjusted the music and dance scheme bursary contribution for families with income below £45,000, ensuring that the total parental fee contributions for these families remain unchanged.
This debate has addressed the difficult decisions this Government needed to take, but in doing so, we should not lose sight of the fact, as my noble friend Lord Davies of Brixton said, that public services right across the UK will benefit significantly from and only as a result of those decisions. Overall, the devolved Governments received the largest spending settlement in real terms of any settlement since devolution. Each has seen their budget increase in real terms in 2025-26; and each will receive at least 20% more per person than equivalent government spending in the rest of the UK, a figure which rises to over 24% for the Northern Ireland Executive when including the funding received as part of the 2024 restoration package.
Across Northern Ireland, Scotland and Wales, this translates to £16 billion extra to invest in schools, housing, health and social care, and other public services. People in businesses in the devolved nations will also benefit from our UK-wide tax decisions taken in the Budget. For example, the uplift to the national living wage to £12.21 per hour will benefit an estimated 270,000 workers across Scotland, Wales and Northern Ireland.
The Government will continue to work in partnership with devolved Governments and English regions to drive economic growth and support working people. That is why we have established the Council of the Nations and Regions and the council of mayors. We are also working with local areas in England on the upcoming English devolution White Paper as they develop local growth plans, and we have put “place” at the heart of our upcoming modern industrial strategy.
This Government had to take difficult decisions in the Budget, but they were the right decisions to restore stability, protect working people and invest in Britain across all our nations and regions. As we take forward our strategy of stability, investment and reform, the Government remain committed to delivering a shared economic future for the whole of the United Kingdom, underpinned by higher and more sustainable economic growth. I look forward to continuing to work with all noble Lords who have spoken in this debate on this vital agenda.
Baroness Neville-Rolfe (Con)
Will the Minister say a little bit more about retail and hospitality, which have been particularly impacted by the NICs changes? I am interested in understanding his attitude to that.
Lord Livermore (Lab)
We had to take difficult decisions in the Budget. In multiple debates on that issue, the noble Baroness has never said whether she wants higher borrowing, higher taxes or lower spending as a result of the decisions that she is putting forward.
Mental Health Bill [HL]
Monday 27th January 2025
(3 days, 16 hours ago)
Lords ChamberRead Full debate Mental Health Bill [HL] 2024-26 View all Mental Health Bill [HL] 2024-26 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 47-IV(Corrected) Fourth marshalled list for Committee - (23 Jan 2025)
Baroness Browning
“Power of Tribunals to require a reportIn section 72 of the Mental Health Act 1983 (Power of Tribunals), after subsection (7) insert—“(8) The Tribunal may require a local authority, or an NHS body, to arrange for a report regarding such matters relating to a patient as the tribunal may direct to be made—(a) by one of its officers or employees;(b) by such other person as the authority, or the NHS body, considers appropriate.””Member's explanatory statement
This amendment would recreate the powers the Court of Protection has under section 49 of the Mental Capacity Act 2005, in section 72 of the MHA 1983 to assist discharge.
Baroness Browning (Con)
My Lords, Amendment 128 is in my name. A person with autistic spectrum disorder or a learning disability may be stuck in hospital for years; we know that they often are. We sincerely hope that matters will improve dramatically when this Bill is enacted, but we should not be so optimistic as to think that will happen in the near future. However, when somebody is in hospital that long and no longer needs clinical supervision—some in the autistic and learning disability community, for example, never needed to be in there at all—parents become extremely stressed and frustrated. There may be long periods when a close relative, often their adult child or a younger child, is stuck in these hospitals and the parents cannot get them out.
We heard in debate earlier this evening of the differences between the county courts and the mental health tribunals; of course, there are also people who sometimes resort to the Court of Protection. Although I heard noble and learned Lords giving their different views on these, most seemed not to regard the county courts as the most appropriate course. It is a fact, though, that the Court of Protection has had some success in getting out people who have been unduly held in mental health hospitals.
Amendment 128 proposes that mental health tribunals are strengthened to give them the same opportunity as the Court of Protection to make progress in releasing people from long stays in hospitals. If they are to do that, the mental health tribunals need to have more powers, particularly to require local authorities and the NHS to provide a report to enable discharge for a person who no longer clinically needs to be in hospital. This would give tribunals the same powers that the Court of Protection has under Section 49 of the Mental Capacity Act, because there has been some success.
The Court of Protection has been able to secure discharges because it is able to call for reports from local authorities and health services to put the case that it feels confident that it would be safe to discharge somebody. Parents who do this very often have to fund it themselves. Strengthening the tribunal cases, in line with the sort of powers that the Court of Protection has in getting information collated, to make sure the discharge package is sound is very important. This approach would be stronger and more effective than the Government’s proposal that tribunals make recommendations on Section 117.
That is what the Government propose, but I hope that the Minister will look carefully at this amendment. It would enhance mental health tribunals, increasing the number of people who have proper discharge packages through these tribunals. I do not see this as a competition between the Court of Protection and tribunals. Both have a place, and this will be important if we are to achieve what this Bill wants to achieve: to make sure that people do not stay in health mental hospitals a moment longer than they absolutely have to. I beg to move.
Earl Howe (Con)
My Lords, I believe we would all accept—and, personally, I am in no doubt—that my noble friend Lady Browning possesses a breadth and depth of experience in matters relating to autism and learning disability. By that, I mean that she has not just a familiarity with the day-to-day challenges of life for individuals with one or more of these conditions but a knowledge of the practical frustrations and hurdles that often have to be overcome if the best interests of such individuals are to be properly defended.
It is amply clear from what my noble friend has said that, if this amendment were inserted into the Bill, it would have the potential to make a material and beneficial difference to the process of discharging certain patients from a secure mental health unit in particular types of situations. As my noble friend said, and as we all know, there have been many instances where autistic patients have been detained inappropriately and for long periods under the Mental Health Act and where families have struggled to secure their relatives’ release.
I cannot see a logical reason why a mental health tribunal should not be placed on an equal legal footing with the Court of Protection in this very limited respect. I hope the Minister will agree.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I am most grateful to the noble Baroness, Lady Browning, for tabling Amendment 128 and for her contribution, along with that of the noble Earl, Lord Howe.
On the proposals in Amendment 128, I can tell your Lordships that, under the current tribunal procedure rules, the tribunal can direct responsible authorities, which could be a local authority or an NHS body, to provide evidence. The practice directions that apply in mental health cases place a requirement on the responsible authority to provide reports and records relating to the patient’s detention treatment and any after-care plans. The tribunal can use these reports to decide whether the detention criteria are being met. Therefore, it appears that the tribunal has extensive powers to require responsible authorities to provide the information to support its decision on whether to discharge a patient. I hope that the noble Baroness will be satisfied with this response and will withdraw her amendment.
Baroness Browning (Con)
My Lords, I am grateful to my noble friend for his support from the Front Bench and to the Minister for her reply. Although it was very reassuring, could I ask her to clarify something? Has the level of information leading to a proper discharge plan under the existing powers of tribunals been set in primary legislation, which is what I am asking for under this Bill, or is it in secondary legislation or guidance?
Baroness Merron (Lab)
I am happy to confirm that to the noble Baroness. The important thing for me is that we make sure that, as always, we can move with best practice and keep up with what is needed. With that in mind, I will confirm that later to the noble Baroness to ensure that I am correctly answering her detailed question.
Baroness Browning (Con)
I am grateful to the Minister, as always. She is always helpful with these difficult points. I will just flag up that if the tribunal power to get that information in order to encourage more discharges is not in statute, then perhaps we will return to it at a later date. I beg leave to withdraw the amendment.
Lord Bradley
“Implementation report: removal of police stations and prisons as places of safety(1) Within 6 months of the day on which this Act is passed, the Secretary of State must publish a report on how they will effectively implement the provisions contained with section 46 (Removal of police stations and prisons as places of safety) within the time limit specified by section 53(3A) (Commencement).(2) The report must include an assessment of—(a) how His Majesty’s Government will provide alternative places of safety with adequate capacity and geographical distribution,(b) the availability of remand to hospital under section 36 of the Mental Health Act 1983 (Remand of accused person to hospital for treatment) and,(c) any plans to extend section 36(1) of the Mental Health Act 1983 to Magistrates’ courts.(3) The Secretary of State must lay a copy of the report before Parliament.”Member’s explanatory statement
This amendment (connected with another in the name of Lord Bradley) seeks to ensure that the Secretary of State must publish a report on how they plan to implement the provisions contained within Clause 46 in an effective and timely manner.
Lord Bradley (Lab)
My Lords, my Amendments 128A and 163B concern the banning of prisons and police cells as places of safety. By way of background, in my report in 2009, which I have previously referenced, I recommended that discussions should immediately commence to identify suitable local mental health facilities as the places of safety, ensuring that police stations should no longer be used for this purpose at that time. That sat alongside the development of mental health and learning disabilities liaison and diversion teams based in police custody suites and the courts, particularly to support the police in dealing with people with these issues. There is now 100% geographical coverage of the country with those teams. A crucial further element was the development of what was called street triage, where mental health nurses sat alongside the police in emergency control rooms or in police vehicles around local communities, again to support and assist the police.
The recent policy, “right care, right place”, is rightly based on the same principles debated on Amendment 37B, moved by the noble Baroness, Lady May. Again, at that time there was growing concern that A&E departments were, and still are, a default position as places of safety, and therefore the need to develop alternative facilities, often located close to A&E departments, often called crisis care units, should be pursued. There is an agreed protocol with the police to hand over the patients for care and assessment to NHS staff in the way advocated now by Amendment 128B, which has already been debated and is a model that I believe should be replicated across the country.
My amendments today are an attempt to galvanise the Government into action to achieve that. Amendment 163B to Clause 53 would require that Clause 46 came into force no later than 12 months after the passing of the Act. Amendment 128A to Clause 46 would require that the Government must publish a report on how they would ensure effective implementation of that section within the timeframe specified. I am again concerned at the lack of clarity in the timeline for the implementation of provisions in this clause. The impact assessment currently does not show an estimated commencement date for the provision in Clause 46, stating instead:
“Departments are working together to ensure there are clear pathways and provision in place to safely enact these reforms and the timeline for implementation will depend on the conclusion of this work”.
Amendment 163B would require Clause 46 to come into force within 12 months of the passing of the Act.
Amendment 128A would require the Government, within six months of the passing of the Act, to publish a report assessing: how they will ensure effective provision of alternative places of safety with adequate capacity and distribution across geographical locations; the availability of remand to hospital under Section 36 of the Mental Health Act 1983; and any plans to extend the use of Section 36 of the Mental Health Act 1983 to magistrates’ courts. Such a report will be crucial to the successful implementation of Clause 46.
Further—and this replicates concerns already expressed in Committee—I am concerned about the lack of reliable data on the use of prisons as a place of safety. The impact assessment references this, noting that there is no
“reliable data on the number of people in prison as a place of safety”.
Without knowing how many people are being held in prison as a place of safety, it would be difficult to ensure adequate alternative provision is in place. This data should be recorded and made available to inform effective implementation of this clause. Perhaps the Minister in response might be able to assure us that this information will be made available to the Committee.
Taken together, the removal of police stations and prisons as places of safety can be successfully introduced in a timely way, which many organisations, such as the Centre for Mental Health—for which I am an ambassador—and the Prison Reform Trust, have a long advocated. I hope the Minister will agree.
Lord Kamall (Con)
My Lords, I welcome the amendments from the noble Lord, Lord Bradley. As usual, he has been very sensible and measured in the amendments he has tabled. As the noble Lord reminded us, he has been very patient on many of the measures he is proposing.
I will speak to Amendment 140, which is also in the name of my noble friend Lord Howe, and hopefully touch on some of the amendments from the noble Lord, Lord Bradley. On a positive note, I will say how much we welcome Clause 46 and its removal of police stations and prisons as places of safety under the Mental Health Act. I think that noble Lords across the Committee welcome that, and the Government are to be congratulated on it.
The Wessely review stated:
“Far and away the best way to improve the care and outcomes for those with the severest mental illnesses is to provide more and better alternatives to detention”.
It also remarked that, all too often, opportunities for early intervention were missed. The report noted that this means that the first contact a patient often has is with the police, rather than with a mental health professional. I know we have discussed this and the overall involvement of police a number of times in Committee. I am sure we may come back to this on Report, but all noble Lords are aware that this must be addressed. Clause 46 is therefore very important in implementing that recommendation from the Wessely review.
I want to focus on a sentence that comes after the recommendation in the Wessely report:
“That means that, where they do not currently exist, health-based places of safety will need to be commissioned”.
I think this goes to the heart of the issue the noble Lord, Lord Bradley, was talking about—implementation but also data. Amendment 140 attempts to probe the Government. It would require the Secretary of State to publish a report on alternative places of safety for patients who are liable to be detained, particularly focusing on community care. We need to know this; as the noble Lord, Lord Bradley, said, we need the data.
Noble Lords have raised many times that we know that everything is not going to be done overnight. We understand that. We know there is a 10-year timeframe. We want a better understanding of what will be delivered when. Some of it will be subject to spending reviews, but some of it will be delivered whatever the result of a spending review. It is all very well saying that police stations and prisons and cannot be used as places of safety—no disagreement there—but this will mean that patients have to be placed elsewhere. Clause 46(2)(a) states that a place of safety for an adult is
“any hospital the managers of which are willing temporarily to receive that person”.
So far, the Bill seems to say—the Minister may correct me—that the only place of safety is a hospital. If I have misunderstood, I am prepared to be corrected, but as all noble Lords will know, that is not always ideal. Capacity in hospitals is in short supply. What will happen if a place of safety is needed but there are no appropriate hospitals nearby that are willing to receive that person, for lack of available space or staff? That is why this amendment places a focus on community-based alternatives for places of safety. If we can shift some of the burden here away from hospitals and into the community, part of the problem might be alleviated.
On an earlier amendment, Amendment 151, the noble Baroness, Lady Bennett, said that we all know that capacity in the community is currently quite limited. The report required by my amendment would enable the Secretary of State and the Department for Health and Social Care to consider and create a plan to develop greater capacity in the community for this purpose. We understand that not everything can be delivered now, but we would like to see a plan so that we can understand the Government’s intentions, their own timeframe and how they intend to roll this out. The amendment once again aims to probe the Government on their implementation plan.
I thank the Minister for meeting my noble friend Lord Howe and me to discuss appropriate places of safety. In that meeting, the Minister mentioned the community crisis houses that the noble Lord, Lord Bradley, alluded to, and said that her department was investigating how these might be used as alternatives to hospital or, indeed, police stations. As Mind says on its website, crisis houses provide
“intensive, short-term support to help manage a mental health crisis in a residential setting, rather than in a hospital”.
They can vary; some may simply provide temporary overnight accommodation to ensure that those experiencing mental health crises have a safe space away from other areas of their life, while others may provide treatment as well. Many of these crisis houses are operated by voluntary and civil society organisations.
One of my great passions in politics is to champion the role of local community civil society groups, so that we do not always have to look to the state to provide all the solutions. I think that there is some real promise here, and the Government are to be congratulated on it, for the provision of community crisis houses to be expanded, so that they can act as health-based places of safety, as the Wessely review recommended.
The questions I have at this stage for the Minister are in the nature of a probing amendment. What progress has the department made in exploring these community crisis houses and, indeed, other community-based places of safety, as alternatives to police stations and prison cells? Can the Minister tell us, when the Government are implementing the provisions of Clause 46 and commissioning health-based places of safety, whether they will include discussions with local civil society organisations and charities about how best to implement them, perhaps in partnership? I am sure she will recognise that their expertise will be highly beneficial and that they often know their local community much better than officials do, whether those be national officials or sometimes even local government officials. I appreciate that the Minister will not necessarily have all the answers tonight but, if not, I look forward not only to her comments but to the letter that she will promise to write to us afterwards.
Baroness Merron (Lab)
My Lords, I thank my noble friend Lord Bradley for his contribution and for Amendments 128A and 163B. I also thank the noble Lord, Lord Kamall, for speaking to Amendment 140 in his name and that of the noble Earl, Lord Howe. We are committed to implementing these reforms as soon as is it safe and practical to do so. We will return to this matter on the next day in Committee.
As I have said before—I know that noble Lords have heard this—we are reluctant to commit to enacting single provisions or publishing single plans or reports at specific times, given their dependence on so many other developments, particularly spending reviews. Removing police stations and prisons as places of safety under Section 55, and removing police stations under Sections 135, 136 and 136A will, as noble Lords suggest, require making sure that viable alternatives and clear pathways into support are fully established and in place. Commencing by regulations enables the reforms to be enacted once this is the case.
I know that my noble friend Lord Bradley is aware of this, but I will repeat it in respect of these amendments. Officials from my department, the Ministry of Justice and the Home Office are working with health and justice partners across government to develop the necessary plans to ensure that sufficient resources and the right processes are in place, and to establish clear timelines for implementation.
Lord Bradley (Lab)
My Lords, I am grateful for the Minister’s response and pleased that progress is being well made to develop alternative facilities to ensure that the use of prisons and police stations as places of safety is banned as soon as possible. The purpose of my amendments was to keep momentum behind that programme. I hope we can properly implement these provisions in a timely way, because that would be to the greatest benefit of people affected by mental ill-health or learning disabilities who find themselves up against or in the criminal justice system. On that basis, I beg leave to withdraw my amendment.
Lord Bradley
“Implementation report: mental health care for bailed defendants(1) Within six months of the day on which this Act is passed, the Secretary of State must publish a report on how they will effectively implement the provisions contained within section 47 (Remand for a person’s own protection etc) within the time limit specified by section 53(3A) (Commencement).(2) The report must include an assessment of how His Majesty’s Government will ensure appropriate care and support for defendants with mental health conditions who, under the provision in section 47, cannot be kept in custody for their own protection.(3) The report must review—(a) the extent to which services providing such care and support have adequate capacity, and(b) their geographical distribution.(4) The Secretary of State must lay a copy of the report before both Houses of Parliament.”Member’s explanatory statement
This amendment (connected to another in the name of Lord Bradley) seeks to ensure that the Secretary of State publishes a report on how they plan to implement the provisions contained within clause 47 in a timely manner, and in a way which ensures that bailed defendants with mental health conditions (who can no longer be remanded for their own protection) receive appropriate care and support.
Lord Bradley (Lab)
My Lords, in moving Amendment 128C I will speak also to Amendment 163C in my name. These amendments relate to Clause 47, “Remand for a person’s own protection etc”, and Clause 53, “Commencement”. I will speak very briefly, because the purpose of these two interlinked amendments is substantially the same as the ones we just discussed: Amendments 128A and 163B. However, they stress that remand should always be part of our deliberations when we are talking about people who may find themselves in the criminal justice system.
Amendment 163C would require that Clause 47 comes into force no later than 12 months after the passing of the Bill. Amendment 128C would require the Government to publish a report on effective implementation of Clause 47. These two amendments encapsulate the need to make really rapid progress to ensure that there are adequate community alternatives and community health-based provision to support people who may be placed on remand, where the sole concern is the defendant’s mental health.
We have to ensure that these facilities are geographically spread across the country. We also have to ensure that we can see bail being used in a way that is commensurate with people who may have found themselves going to a place of safety, but with the same support required for their continued treatment as if they were already within the criminal justice system.
With that, I am happy to listen to a positive response from the Minister. I beg to move.
Lord Scriven (LD)
My Lords, I will be very brief because of the time. As with the previous group of amendments from the noble Lord, Lord Bradley, we are very supportive of the intention to try to tease out of government what the implementation plans are. It is really important to understand that being supportive of Clause 47 does not necessarily mean that we believe it will come into implementation in a timely fashion.
By supporting the noble Lord’s amendments, we wish to tease out of government the exact timing and resources that have been allocated; the planning the Government will have to do in terms of the number of provisions that will be required to implement this clause; the gap between the number of those facilities in place and those needed; and the estimate the Government have of when they would seek to put those facilities in place.
As the noble Lord, Lord Bradley, said, the location of those facilities—where there are gaps geographically and where they need to be filled—is very important. It is important that the Government furnish the Committee with those details so that we can fully understand not just the intention of implementation but the scale of the implementation plan required for this clause.
Lord Kamall (Con)
My Lords, just like in the last group, I will speak to and support the amendments in the name of the noble Lord, Lord Bradley. They follow the amendments in the previous group.
These Benches welcome Clause 47—another positive move—which addresses the issues arising from the current situation. As the noble Lord, Lord Bradley, said, bail can be refused solely on the basis of a mental health condition where it might otherwise have been granted.
In simple terms, as the noble Lord, Lord Scriven, said, this amendment returns to the theme that he, and many other noble Lords, have pushed the Government on—and I like the words used by the noble Lord—to “tease out” the plan and timetable for implementation from the Government, since it requires the Secretary of State to prepare a report on how they plan to implement these changes within the time period proposed in Amendment 163C.
We have to remember that the impact assessment states, in regard to the changes to remand for a person’s own protection, that:
“Departments are working together to ensure there are clear pathways and provision in place to safely enact these reforms and the timeline for implementation will depend on the conclusion of this work”.
That has been manifested this evening with the presence of a Minister from the Department of Health and Social Care and a Minister from the Ministry of Justice. However, there is currently no set date for the commencement of Clause 46, so it is all contingent on internal departmental assessments. We all understand how government works—how long it takes for things to happen, to get write-round and to get support across government—so I gently suggest to the Minister that the 12-month implementation timeline would be a useful target for the Government to work towards. It could help them to answer some of the questions that many noble Lords have asked in Committee on the plans for, and stages of, implementation. That is not to force the Government to move faster than they want to go, but just for us to understand the various milestones along the way in developing what is in the Bill.
It would also be helpful if the Minister could set out how much progress has been made both in the Ministry of Justice and the Department of Health and Social Care on establishing the pathways and processes to enable these remand reforms to go forward. This is especially true since the impact assessment also states—this is quite an interesting point—that:
“We expect the number of people on remand solely for mental health reasons to be low and therefore health and justice costs relating to this change are likely to be negligible, and therefore have not been monetised”.
We understand the challenges that the Government are often talking about—they have to wait for spending reviews, et cetera—but the impact assessment states that the number of people affected will be low. Can the Minister say whether either his department or the Department of Health and Social Care know what that means and how many people that will be? Does he know how many will be impacted by this change? If he accepts what is in the impact assessment—that the costs will be negligible—this could be a quick win for the Government in relative terms, depending of course on what other processes he feels have to be put in place before they can deliver this. I hope that the Minister can be a bit more helpful on his noble friend’s amendments, given that the costs are low.
We look forward to the Minister’s response, and I would be grateful if he could give an indicative timeframe or an indication of when a timeframe will be in place.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
My Lords, I am grateful to my noble friend Lord Bradley for bringing this discussion before the Committee. These amendments would require the Secretary of State to publish a report on the implementation of Clause 47 within six months of the date on which the Bill is passed and that the reform comes into force a maximum of 12 months after the date on which the Bill is passed.
We are committed to implementing our reform to the Bail Act as soon as is practicable and as soon it is safe to do so. However, before moving to amend the legislation to embed these changes, we will need to make sure that viable alternatives are properly established and clear pathways to the right support are in place, whether in hospital or in the community. Commencing by regulations enables the flexibility to implement the reform at whatever point the necessary alternatives and pathways are safely in place.
I reassure my noble friend Lord Bradley—just as the Minister, my noble friend Lady Merron, did in relation to the previous groups of amendments—that my officials are working with colleagues across government to develop this and to ensure that sufficient resources and processes are in place. This includes the work of the north-east health and justice hub, which seeks to improve the way that courts, health services and prisons work together at a local level to smooth pathways into care, alongside the pilot team collecting data. That will help us better to understand the number of people remanded for their own protection solely on mental health grounds to inform planning.
The reform is currently due to commence by regulation, so we have the flexibility to implement it at whatever point the necessary alternatives to the pathways are in place. The rollout of the bail information service will be completed by autumn this year. This will help the courts to have the information they need to make decisions on bail for this cohort. However, we need to make sure that we have the reliable data on the number of people remanded for their own protection, because if this is rushed, it could create knock-on impacts for health services.
Lord Scriven (LD)
The noble Lord, Lord Kamall, quite rightly pointed out that the impact assessment says that the Government have already said that the numbers will be small and the costs negligible. Upon what data were those assumptions from the impact assessment made? If the Minister cannot give me the answer to that at the moment, could he provide the Committee with the detailed figures and data used to present that within the impact assessment?
Lord Timpson (Lab)
I thank the noble Lord for his question. I will be delighted to get the correct information, so that we get it exactly right. We will get it to him as soon as is practical.
Lord Bradley (Lab)
I am again grateful to the Minister for his response and pleased that he will provide that information, because it is fundamental to effective implementation of this policy. I also look forward, hopefully before Report, to visiting the north-east health and justice hub to see for myself what model it is developing, how applicable that could be across the country and at what cost. There is lots to do but, on that basis, I wish to withdraw my amendment.