Arrangement of Business
The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, I commence, as I am obliged to on these occasions, by advising the Grand Committee that if there is a Division in the Chamber while we are sitting, the Committee will adjourn as soon as the Division Bells are rung and resume after 10 minutes.
Non-Domestic Rating (Multipliers and Private Schools) Bill
Monday 24th February 2025
(1 day, 10 hours ago)
Grand CommitteeNon-Domestic Rating (Multipliers and Private Schools) Bill 2024-26 View all Non-Domestic Rating (Multipliers and Private Schools) Bill 2024-26 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 61-I(b) Amendments for Grand Committee (Supplementary to the Marshalled List) - (24 Feb 2025)
“PurposeThe purpose of this Act is to vary some non-domestic rating multipliers and to remove the charitable exemption from private schools.”Member’s explanatory statement
This amendment sets out the purpose of this Act and is intended to invite the House to consider whether the Bill meets the Government's stated aims of protecting the high street and encouraging investment.
Lord Fox (LD)
My Lords, I welcome the Minister back to his place and say that the whole House was sorry to hear of his family’s loss.
We on these Benches welcome this Bill as a narrow tinkering of a broken system. It may have some beneficial effects, but I remind your Lordships that the non-domestic rates system has been broken for years, and if this tinkering distracts from a full and proper review of the system, then it is a malign influence rather than a benefit.
From scrutinising the Commons debate on this Bill, it seems that the Government sought to limit debate by asserting that its purpose was to use multipliers to manipulate the non-domestic rates of a subset of businesses in what it calls high streets. This measure is focused on retail, hospitality and leisure hereditaments. Having done this, the broad government claim is that our high streets will somehow be protected and that investment will be encouraged. In wording Amendment 1, we attempted to include words that spelled out the spirit of the Government’s Commons claims, but I have to say that the Public Bill Office resisted all attempts to include the concept of protecting high streets and encouraging investment in the purpose statement. The PBO has confirmed the narrow nature of this Bill.
The Government cannot have it both ways. If they accept the restraints of their own handcuffs and restrict this Bill to varying multipliers for this subset of businesses, the Minister cannot claim to be protecting high streets. There are at least three reasons that make this true. First, high streets are much more than retail, hospitality and leisure, as we will see from various groups of amendments. If the Government’s actual purpose is to protect high streets, they would spread its activity more widely. This will be effectively asserted from these Benches and from those of His Majesty’s loyal Opposition.
Secondly, the Government present no evidence that their claims to be protecting high streets will actually come to pass. As we know, the non-domestic rating system is complex. It is further complicated by the application of reliefs, which will vanish as these multipliers arrive. Increasing the multipliers for larger businesses is another complication. In addition, there is the issue of valuations—this is the elephant in the room that this Bill ignores. They are always up. There are many puts and takes that affect the individual business rates that a business pays and what its competitors pay, yet there has been no attempt at an impact assessment. I have to put it to the Minister that no one actually knows the effects that this Bill will have.
Thirdly, we know that there are some important consequences for activities that fall outside the retail, hospitality and leisure focus that could be badly affected by the consequences of this Bill. My noble friend Lady Pinnock will highlight the issue of medical and health-related premises, and I will seek to demonstrate that an important sector of our creative industry—independent music venues—will be hit hard. In both cases, we need the Minister to confirm that increasing rates for these activities is an unintended, rather than an intended, consequence. Both these activities are important parts of well-functioning high streets, although of course there are other activities that also contribute. This is a consequence of blunt targeting, and it needs to be sorted.
I propose this amendment with a heavy heart, because the narrowness of the purpose allowed by the PBO identifies the limitations and faults of this Bill. But there is hope. First off, the Minister could accept my noble friend’s Amendment 51, when it comes up. That is a good starting point but, otherwise, I am sure that we can work with the Minister to come up with a new Short Title and Long Title that will allow us to properly set about protecting our high streets. My colleagues and I stand ready to help the Minister in this regard. I beg to move.
Lord Thurlow (CB)
My Lords, I stand to introduce the second group, in which, conveniently, there are three amendments, all in my name—
The Deputy Chairman of Committees (Lord Geddes) (Con)
We are still on group 1. We will come to group 2 in the fullness of time.
Baroness Scott of Bybrook (Con)
My Lords, I will speak to Amendment 1 and to my notice opposing the Question that Clause 1 stand part of the Bill. I was pleased and interested to see that the Liberal Democrats had tabled a purpose clause, given that they have criticised purpose clauses tabled by my Conservative colleagues on other Bills. On the purpose clause tabled by my noble friend Lord Davies of Gower—
Lord Fox (LD)
As a point of information, I have proposed purpose clauses for at least six Bills in the last three years.
Baroness Scott of Bybrook (Con)
I will continue. When my noble friend Lord Davies of Gower tabled a purpose clause on the Terrorism (Protection of Premises) Bill, the noble Baroness, Lady Suttie, argued that it was unnecessary because it restated some of the language in the Long Title of the Bill. In contrast to the amendment that we are debating today, my noble friend Lord Davies’s amendment included a legal duty on the Secretary of State, as well as establishing a purpose clause giving it legal effect. This is all water under the bridges, though, and we hope that our friends on the Benches to my left will not criticise our use of purpose clauses when scrutinising future Bills. As I say, we on these Benches are very comfortable with purpose clauses which seek to probe the intentions of the Bills that this Government are bringing forward, so I welcome the noble Lord’s amendment.
As the noble Lord, Lord Fox, says in his explanatory statement, there is a real question mark over the Bill’s impact on the Government’s plan to deliver on their stated aims of protecting our high streets and encouraging investment. Later in this Committee, I will seek to probe the impact of the Bill on larger anchor stores, which are often the key drivers of the footfall on our high streets and keep smaller businesses alive. I will also seek to understand more fully the impact that the Bill will have on the retail and major food shops, including supermarkets, which people across the UK rely on.
We know that the Government’s original intention was to hit international businesses that have large, warehouse-style business premises, such as Amazon and other international tech giants, but it is not clear that the Bill achieves that goal effectively. There is a risk that the increased costs of multipliers will be passed on to consumers in very unexpected ways. The higher multipliers that the Bill will introduce are a tax on business. We need to understand better what impacts this business tax will have on jobs, growth and prices. The impact assessment that the Government have published to date is utterly inadequate. Although I am really very grateful to the Minister for his engagement on the Bill so far, I feel that we will need to hear much more detail from the Dispatch Box on the real-world impact of the Bill if we are to proceed with it.
I turn to my stand-part notice, which seeks to question whether Clause 1 should stand part of the Bill. Clause 1 sets out the Government’s intention to create a system whereby hereditaments over the value of £500,000 pay at a higher multiplier. What they have failed to include in any part of the Bill, or indeed in the Explanatory Notes, is an explanation of why £500,000 was chosen as the threshold for the higher multiplier. Indeed, £500,000 seems entirely arbitrary, and the Government have not explained why that is the number.
As was mentioned by several noble Lords from across the House at Second Reading, the Bill raises more questions than it has answers, and there is a complete lack of clarity. Not only do we not know why the threshold is set at £500,000, but we also do not know what the actual multipliers will be. The Government’s choice of setting the threshold in this way means that many businesses on our high streets will be forced to pay this higher multiplier.
I agree that the business rates system needs reform, but I do not for a second think that this Bill achieves the reforms that our high streets need. There is an understanding across the board that businesses that operate online and occupy out-of-town warehouses should pay a larger amount of business rates, and such reforms have been nicknamed an “Amazon tax”. But the Bill does not achieve that on its own terms. We know that thousands of large shops will be caught by this threshold, and we cannot support a Bill that risks a decimation of our already struggling high streets across the country simply because the Government have failed to do their homework and have got their numbers wrong.
We will be probing the Government’s proposed threshold as the Bill progresses. It is the job of Ministers to get this right, and we will be listening carefully to the Government’s responses to this challenge. The Labour manifesto committed to reforming the business rates system and to
“level the playing field between the high street and the online giants”,
so why does the Bill not do that? The arbitrary threshold set by the Bill will damage many high-street businesses and, coupled with the reduction of retail, hospitality and leisure relief, will not fulfil the Government’s claims that they intend to reduce how much in business rates these businesses actually pay.
Again, the Explanatory Notes reference the higher multiplier as applying to
“distribution warehouses … used by online giants”,
but simply including a cut-off of £500,000, while it will tax online giants, will not protect other businesses. Although the majority of the businesses with a rateable value over £500,000 may be warehouses, not all of them are. Through a failure to target the policy effectively, the Bill is likely to have unintended consequences that will have a ripple effect on other businesses on our high streets.
It is important to look at this Bill in the context of the wider decisions that this Government have made that force businesses to have higher costs. The Government have increased the minimum wage, which we support, and they have increased the employer national insurance contributions—a hidden tax, a job tax, that will hit the retail sector with a bill of £2.3 billion a year. Although this Bill alone may not cripple businesses, when considered with the other taxes that the Government have imposed on businesses, it very well could be the thing that forces businesses to close on high streets up and down the country.
I thank the noble Lord, Lord Fox, who has provided a good contribution to this debate, and I hope that the Minister will consider the concerns that we have both raised.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government (Lord Khan of Burnley) (Lab)
My Lords, let me start by expressing my gratitude for the kind words from the noble Lord, Lord Fox, in relation to my not being present for the Second Reading because of the tragic loss of my mother, and I extend my gratitude to everyone in the House. I had a good look at the Second Reading, and I appreciate all the tributes that were made during this difficult time of my life.
It has been a lively start to this afternoon’s proceedings, but I thank the noble Lord, Lord Fox, and the noble Baroness, Lady Pinnock, for tabling Amendment 1. It will be appropriate alongside this amendment to consider whether Clause 1 should stand part of the Bill. I understand that there is concern that the Bill before us does not deliver on the Government’s stated intentions. I am grateful for the contributions of the noble Lord, Lord Fox, and the noble Baroness, Lady Scott, but I must disagree with their position.
The Bill delivers on the Government’s commitment, as announced at the Autumn Budget, to introduce from 2026-27 permanently lower tax rates for retail, hospitality and leisure properties and, as also announced at the Autumn Budget, the introduction of a higher tax rate on the most valuable properties—those with a rateable value of £500,000 and above—to fund that permanent tax cut sustainably. Clauses 1 to 4 of the Bill enable this.
Lord Fox (LD)
My Lords, I thank the Minister for his detailed response. The nature of this debate has set the scene for some of the groups that we will debate later—the £500,000 limit will certainly come up shortly, as will the other issues. The overall point suggested by the Minister—that we must have this move, or that this move is a helpful precursor to wider reform—is one that I would question. I do not see why this must happen without the wider reform; it is not needed unless it is in the context of something that is more total around the system. Let me repeat myself: there are so many puts and takes in this system that it is hard to know how individual businesses and their competitors are going to be affected simply on the basis of where they stand on a particular road. There is much to be done but, on that basis, I beg leave to withdraw Amendment 1.
Lord Thurlow
Member’s explanatory statement
This amendment, connected to another in the name of Lord Thurlow, seeks to remove the power to introduce higher multipliers for more valuable properties.
Lord Thurlow (CB)
My Lords, after my practice run, for which I apologise, I rise to address this second group. Conveniently, it consists of three amendments, all in my name. Before doing so, I should mention that I was formerly a chartered surveyor and spent several decades working in the realms of commercial property. This included a certain amount of rating, so I have considerable experience. I also beg the Committee’s leave inasmuch as I was unable to take part at Second Reading, but I have read Hansard and spoken to colleagues.
The purpose of Amendments 2 and 4—the latter is consequential on the former—is to remove the power to introduce higher multipliers for the more valuable RHL properties on the valuation list. There is a fundamental flaw in the Government’s proposal to pay for the reduced multiplier, hereditament or—I cannot remember what it used to be called—poundage by taxing the larger organisations. To understand this, we must look for a moment at what characterises a successful high street and distinguishes it from one that withers and fades. Although a high street that has withered will continue trading, it will have lost its heart as a retail centre and lost the social cohesion that it provides to the community. There is a gradual decline in the presence of national multiples, which are the key to high streets’ economic health.
A key presence in a successful high street are the anchor retailers, as we have heard. These may be department stores—though, sadly, few remain—other large retailers, such as Marks & Spencer, or possibly a leisure centre. Importantly, nowadays, it may also be a large supermarket. Most larger towns now have a town centre shopping scheme, of course. These are developments that have been carried out behind the retail frontage, usually, but with one or two shopping units providing access to the prime section of that high street. They are anchored by a large retailing presence: the department store or the supermarket in the shopping centre. They also frequently have the advantage of providing car parking and bus station services to the high street, which are particularly important these days with traffic restrictions and general congestion.
It is important to understand that anchor retailers are the lifeblood of our high streets, many of which are pedestrianised to improve the experience and safety of pedestrian traffic. The proposal to charge the larger retailers or RHL traders premium rates will cause yet more of these anchors to close down. This will structurally destabilise the complementary nature of a balanced retail offer. These anchors, including supermarkets, are already under extreme financial pressure.
It is no accident that the large department stores are fast disappearing from our high streets. To ask the higher NDR companies to pay this extra tax is punishment in the extreme. British Home Stores has gone, as has Binns in the north-east. C&A, which many of us will remember, is a good example of another that was forced to close by its parent because it could not afford all the costs, yet it trades healthily and thrives across continental Europe and in other countries around the world. It closed in this country because it could not afford to trade any longer; there was nothing wrong with its product.
Ironically, the only retailers that can afford the high street costs are the mail order giants, and the Government know who they are. Yet we must tread carefully in taxing the fulfilment centres, which are linked to the remaining high street operators and which, by managing to operate away from the high street, can control their costs and keep operating. They are a very different category from the Amazon generic, if I may use that phrase, which the noble Baroness, Lady Scott of Bybrook, already mentioned.
Amendment 45 probes the wisdom of asking the large ratepayers—£500,000-plus is proposed—to subsidise the RHL discount for smaller traders. As already mentioned, the sweeping and inclusive size-related premium will impact many high street retailers attempting to stay afloat by resourcing their mail order businesses elsewhere. They are not the Amazon generic. Asking the larger retailers to subsidise the smaller ones is robbing Peter to pay Paul. The unintended consequence is that the larger retailers will find it harder to continue. It will be another financial burden for them to bear, and it is too much. High street shops will then close to save costs, impacting in turn the economic health of the town.
The key to all this is to separate the fulfilment centres operating behind the scenes of the high street retailers—the big organisations—from the Amazon generic. Dealing with this is complicated and difficult, and it is a matter of definitions. The solution is to ask the experts. There has been consultation on the Bill, but there has been no impact study of this aspect. There needs to be a simple invitation to the experts in the field—the Rating Surveyors’ Association, the RICS and one or two others—whose profession is focused on these subjects, to come up with proposals, ideas and suggestions that can then be refined and considered as a satisfactory solution to funding the discount that the small RHL players will enjoy. Amendment 45 addresses that funding problem. It should not be the highest ratepayers; they suffer enough. I beg to move.
The Earl of Lytton (CB)
My Lords, I am very grateful to my noble friend Lord Thurlow for introducing this point. I support the general thrust of what he said, although I do not see any great likelihood that this will move the government position at all.
Baroness Pinnock (LD)
My Lords, at this point in our first day in Committee, I ought to remind the Committee of my relevant interests as a councillor—we are reliant on business rates for what we do—and as a vice-president of the Local Government Association. I also remind the Committee, given the further amendment that I have, that I am a vice-chair of the University of Huddersfield’s council.
I very much thank the noble Lord, Lord Thurlow, and the noble Earl, Lord Lytton, for speaking to this group of amendments. The thrust of the amendment in the name of the noble Lord, Lord Thurlow, is to remove the higher multiplier. Without really understanding the combination of potential higher multipliers and the loss of what we could call the Covid business relief, because we do not have an impact assessment from the Government, it is difficult to understand the financial impact on businesses of both those changes. I will urge the Minister at every opportunity to provide for the Committee the financial impact on businesses; otherwise, we are debating in the dark a bit because we do not know exactly what the totality of the impact will be on different sectors of the business community.
One of the comments from the noble Earl, Lord Lytton, concerned the lack of targeting of specific businesses in the whole range of proposals in this Bill. It is really difficult to see how the current valuation assessments will result in a fair share of property taxation. I say “fair share” because, in his response to the first group of amendments, the Minister talked about the purpose of this Bill—I quote him—as being to create a fairer system. As we will come to understand in our debates on later groups, this Bill fails to do that because it fails to target businesses except on the basis of valuation. The purpose is ostensibly—I think it was the noble Baroness, Lady Scott, who called it the “Amazon tax”—to try to extract a fairer share of property taxation from distribution warehouses.
At this point, I shall quote what I have, I think, quoted before. The Valuation Office Agency has a figure for an Amazon warehouse near where I live in Yorkshire of £25 per square metre, whereas, in my own small town, a local shop is valued at £250 per square metre. That is at the heart of the problem, which this Bill does not address; it is fundamental. What is absolutely essential to getting a fairer system is a total rethink about property taxation.
Things have changed enormously since the non-domestic business rates regime was introduced. There are now significant out-of-town developments in warehouse distribution which did not exist 20 years ago, and large out-of-town retail parks, which did not exist 25 or 30 years ago. However, they do now, and they are benefiting from the way property is valued by the criteria set by the Valuation Office Agency, and they are benefiting at the expense of high streets. If the Government are certain in their aim to provide a fairer system for our high streets, then absolutely essential is this fundamental change to the way properties are valued, so that taxation can be fairly shared between out-of-town distribution centres, which currently benefit from very low rental values, as opposed to city and town centres, where rental values are high and landlords want to keep them high, because that is important for their income.
We will achieve nothing in this Bill unless that basis of the system is addressed. I agree with the thrust of what is being said, though I do not see how you can let people off a high multiplier if you introduce a lower one without losing that taxation take. I also agree with the final point that both the noble Lord, Lord Thurlow, and the noble Earl, Lord Lytton, made, which is that this arbitrary £500,000 figure as a cut-off between the lower and higher rates will lead to appeals. If I ran a business which had a rateable value of £510,000, I know what I would do: I would do my best to make it come up for £499,000.
I look forward to what the Minister has to say in response, but I hope it will be thoughtful.
The Earl of Lytton (CB)
My Lords, if I may, I will intervene a second time, first with an apology because I should have properly declared my interests as a chartered surveyor and a member of the Rating Surveyors’ Association and of the Institute of Revenues, Rating & Valuation.
That apart, I will follow up on what the noble Baroness, Lady Pinnock, has said. First, we are of course dealing with either the rental or the imputed rental value of properties. I get that point that this is reflecting much lower figures per square foot for some giant distribution centre somewhere upcountry, as opposed to a high-value shop in a sought-after city centre location. However, if that is not the right basis, then we cannot go on slavishly following that. We then have to start thinking about how we split the basis, so that the rental value forms one part of the thing only and something else happens to top the thing up. It cannot be beyond the wit of man to do that, and it cannot be beyond the wit of the Labour Party in opposition to have thought of something when it said in its manifesto commitment that it would replace business rates and
“level the playing field between the high street and online giants”—
and I think I have that verbatim.
More recently, the description of the Bill has been a “rebalancing”. The other way you deal with the whole question of imbalances is to look at the scope of the tax base. The Government have looked at the scope of the tax base; they have decided to take certain private schools out of the exemption and that has increased the tax base. However, that tax base is not retained at all in the business rates pool on a fiscal-neutrality wicket; no, it will be split between government and local authorities for other purposes altogether, so there is a net attrition from the system by that means. What could have been an improvement of the tax base resulting in a reduction across the board will not be there. We have to look carefully at what Governments and the Treasury think they are using business rates for. If they are to go on, bluntly, flogging this poor donkey to death, then things might well start unravelling quite quickly within the timeframe of a valuation list.
Lord Fox (LD)
The noble Earl alluded to a balloon being squeezed; we should remind ourselves that this is an expanding balloon. The costs faced by local authorities, of which a huge proportion—well over 50% and approaching 80% in some areas—is adult social care, are a rapidly expanding balloon that we are seeking to get our hands around and fill. This has enormous ramifications for not just high streets but the other services that local authorities are required and able to deliver on the budgets they get from rates and central government.
Baroness Scott of Bybrook (Con)
My Lords, I will speak to all the amendments in the name of the noble Lord, Lord Thurlow. I understand that he may be concerned by the lack of transparency surrounding the higher multipliers. We share this concern. We need to hear more detail from the Government. They are wrong to seek legislative powers to implement the higher multipliers without giving Parliament—and, more importantly, businesses—any clarity on what they are likely to be. We do not have an estimate of the revenue from the new multipliers. This is clearly not a satisfactory situation.
In principle, we are open to and understand the big concerns surrounding online giants, but more details are needed on this Bill, which we do not believe meets the policy aims. The principle of higher multipliers for certain ratepayers is a sensible idea when done well, so I cannot support the noble Lord’s Amendments 2 and 4. This Bill does not do it well with its arbitrary £500,000 threshold, but the principle of a higher multiplier for businesses that tend to pay less of other taxes can benefit small independent shops.
I cannot support the noble Lord’s Amendment 45—although I understand the sentiment—because, in the way the Bill is structured, high street businesses will be supporting other high street businesses through the higher multiplier. This is not sufficient reform. If we are to engage with the Bill on its own terms and seek to make it effective, the threshold will need changing the most. If the online giants were to pay a larger proportion of tax to enable a tax reduction for high street businesses, I would be inclined to support the Bill.
Before I finish, I thank both the noble Lord, Lord Thurlow, and the noble Earl, Lord Lytton, because, when you hear them talking, you will understand this sector of our economy. They understand what businesses know and think. The noble Lord, Lord Thurlow, is right to say that there should have been a much more in-depth consultation with all types of businesses, but it is difficult to do that when you do not know the effects on those businesses then or cannot give any indication whatever of that.
I also thank the noble Baroness, Lady Pinnock, because I have heard her stories of online giants in Yorkshire. I was pleased when I saw this coming, as perhaps the Government were going to deal with that issue for her. Sadly, I think they are dealing with part of it while, at the same time, putting our high streets in danger.
I am sorry that I disagree with the noble Lord that the Treasury should fund this reduction, but these are important points that the Government should consider carefully and answer fully. I hope the Minister will respond with much more clarity than so far.
Lord Khan of Burnley (Lab)
My Lords, I will address Amendments 2, 4 and 45 from the noble Lord, Lord Thurlow, which concern provisions relating to the new higher multiplier and the funding of the new lower multipliers.
At the Autumn Budget 2024, the Chancellor set out a Budget to fix the foundations—a Budget that took the difficult but necessary decisions on tax, spending and welfare to repair public finances, to increase investment in public services and the economy, to rebuild Britain and to unlock long-term growth. Part of that agenda included transformation of the non-domestic rating or business rates system, including delivering on the Government’s manifesto pledge to support the high street.
Support for the high street is an area on which I know that the noble Lord, Lord Thurlow, and others in this House have spoken passionately in prior debates on business rates legislation. I appreciate the depth of knowledge and experience that both he and the noble Earl, Lord Lytton, bring to these debates.
The Government have made clear that supporting the high streets is a priority. They are a focal point of economic activity and a point of local pride, and they can often reflect the unique character of a community. Yet, as they are property-intensive sectors, the Government are aware that they shoulder a significant business rates burden. Since the Covid-19 pandemic, a one-year relief has been repeatedly rolled over for retail, hospitality and leisure properties as a temporary stopgap. However, this has meant uncertainty for businesses about their business rates bills from one year to the next, and it has created a significant fiscal pressure for the Government.
The Bill will enable the Government to provide a permanent tax cut for qualifying retail, hospitality and leisure properties and, in doing so, better ensure the ongoing vibrancy of high streets up and down the country. However, against the challenging fiscal position that the Government inherited, we have been clear that we must take difficult choices to ensure that this support is delivered in a sustainable way. I repeat: the system should work in a sustainable way.
Specifically, this is why, at the Autumn Budget 2024, the Government announced our intention to introduce a higher tax rate on the most valuable properties. The amendments proposed by the noble Lord, Lord Thurlow, go to the heart of this element of the Bill. They serve to prevent the Government funding the support that the noble Lord would agree is critical for the high street from within the business rates system.
Baroness Pinnock (LD)
Several times already we have queried the decision to make the dividing line £500,000. It would be good to know why that number was chosen. Why not £600,000 or £400,000?
Lord Khan of Burnley (Lab)
I will come to the noble Baroness’s points when I come back to the valuations, rest assured.
The Government have been clear that they intend to fund new lower multipliers by raising revenue within the business rates system. The lower multipliers are a necessary tax cut, but a tax cut that must be funded. By limiting it to properties with a rateable value of £500,000 and above, the Government are asking those with the most valuable 1% of properties to pay more to support the viability of high streets. Moreover, by including all sectors within this group, they are doing so equitably and will capture the majority of large distribution warehouses, including those used by online giants—a cohort that I know the noble Lord, Lord Thurlow, has previously raised in relation to imbalances in the business rates system. We are trying to make sure that we have prudent financial management of the economy and a system that is sustainable.
I come back to some particular points. First, the noble Earl, Lord Lytton, spoke in relation to the potential rise of £39 billion, as indicated by the OBR’s Budget report. The OBR forecast assumes that business rates income will vary in line with forecast CPI inflation, estimated growth in the tax base and the change to business rates relief. The main business rates forecast is gross rates yield, net reliefs, net collection costs and other reductions to contributions. The forecast is higher for future years as it assumes that retail, hospitality and leisure relief is removed. The business rates forecast considers measures only after they have been announced at fiscal events. As in normal practice, forecasts beyond 2025-26 are based on a number of assumptions, as the Government have not yet set out their policy beyond that year. This will take place at the Budget later this year: the main business rates forecast will then be updated to reflect it.
As I have highlighted today, the Bill includes constraints that I hope will reassure Members of this Committee. In addition to limiting it to the most valuable properties, the Government cannot set the higher multiplier more than 10 pence above the standard multiplier. The Government have also been clear that this is not the intended rate. It is there to provide flexibility to adapt to outcomes in 2026 following the next revaluation, while acting as a guardrail against concern about excessive increases.
As the noble Lord, Lord Thurlow, will also be aware, the Government keep all taxes under review, including rates and thresholds. As such, I can assure the Committee that the Government will, as a matter of course, actively consider whether the £500,000 threshold should be amended at the 2029 revaluation, as they approach that revaluation.
Lord Fox (LD)
Coming back immediately on that point, what criteria will the Government be using for that revaluation? In other words, what are they seeking to confirm or otherwise from it? Can the Minister recognise that the point made by my noble friend, which I am sure will be made otherwise, is that when you multiply two numbers together, if one side of the equation is substantially smaller, the sum becomes low? If the valuations are 100 times less out of town, versus those in town, you can mess around with the other number as much as you like, but it will still be a tiny number out of town relative to town centres. Does he recognise that valuations are crucial to this and that, while this is all well and good, until valuations are sorted out, we really are fiddling around?
Lord Khan of Burnley (Lab)
My Lords, on that specific point about criteria, I want to be clear that we have had a one-year ad hoc system and we are trying to build a sustainable system, which will have a three-year rating on non-domestic properties. We want to see how we will get there when we see what the situation is in the fiscal climate; that will be a big part of addressing how the Treasury will set the multipliers. The Bill is not about setting multipliers. It is up to the Treasury to set those. I will come back to the impact in a moment.
In relation to the different level of multipliers, of course it is a complex system. However, the highlight of what we are trying to do is to have a sustainable system that funds itself and, by asking less than 1% of properties to shoulder a bit more, ensures that we support the high street and properties of low valuation. We are trying to have an equitable system that is sustainable and can pay for itself. We recognise that there are different scenarios and situations but, ultimately, we want to ensure that the system is much fairer than it is now and creates more certainty.
Lord Thurlow (CB)
I thank noble Lords who have taken part in this group. The most important takeaway is that it would be too little, too late to postpone until 2027. The acute pain felt in the high street is great enough for there to be substantial loss of retail presence if we do not move more swiftly. We have heard from all sides of the Committee that the lack of impact assessments on the specific, granular issue of definitions is of very serious concern. It needs only another 12-month delay for consultations with experts to take place.
The noble Baroness, Lady Pinnock, revealed with clarity—the noble Lord, Lord Fox, referred to it as well—that there is a harsh difference between an Amazon warehouse with a rental value, on which rateable values are based, of £4.50 per square foot, versus £45 on the high street. That is a massive difference. Amazon are paying 10%. We are tinkering with the deckchairs if the rate poundage is increased for these larger retailers because it cannot be increased—as the noble Lord, Lord Fox, pointed out—to anything near what will be required to provide balance.
The difficulty is one of definitions. I would be grateful if we could speak to the Bill team before the next stage of the Bill. There is scope to introduce a new use class order specifically for the purposes of rating—not for planning, but rating. This would identify the difference between a fulfilment centre for a high street business and an Amazon generic. If that was offered, I would withdraw my amendment.
Lord Jamieson
“(1A) Regulations under subsection (1)(a) must provide discretion for billing authorities with regard to the application of the higher multiplier.” Member's explanatory statement
This amendment seeks to introduce an element of discretion for billing authorities in the application of the higher multiplier.
The Deputy Chairman of Committees (Lord Geddes) (Con)
Amendment 3 leads a substantive group. I suggest that the Opposition might want to move it.
Lord Jamieson (Con)
May I deputise? Before I do, I declare my interest as a councillor in Central Bedfordshire. In moving Amendment 3, I shall speak to Amendments 18, 37 and 43 in the name of my noble friend Lady Scott, and in favour of Amendment 32 in the name of the noble Lord, Lord Thurlow.
Amendment 3 seeks to introduce discretion for billing authorities in the application of the higher multiplier. The other amendments in the name of my noble friend Lady Scott—Amendments 18, 37 and 43—question whether the Treasury is the right authority to define these hereditaments. The purpose of these amendments is to seek the Government’s reaction to the proposal that local authorities should have a role in deciding which businesses pay the newer, higher multiplier. Local authorities are in a unique position to comprehensively understand the challenges and circumstances faced by their local businesses, which a centralised body certainly is not.
For all its strengths, we know that His Majesty’s Treasury does not have the local knowledge and in-depth understanding of the needs of individual high streets to make informed decisions on business rates that work in the best interests of the local areas. Local authorities are on the ground and are intimately familiar with the economic, social and cultural landscape of their high streets and areas. From my own experience in Central Bedfordshire, I know the positive impact that a well-run local authority can deliver for its high streets. We are interested to hear how the Government seek to empower councils in these areas. We have heard a great deal from the party opposite about the value of devolution; this is a good example of where the Government should put these sentiments into action. The amendments in the name of my noble friend Lady Scott look to empower local authorities to tailor policy to best suit their local area’s specific needs.
Fundamentally, policy is about not only implementing rules but creating a framework that works in practice. Therefore, it is essential, even if the Government are unable to accept the amendments in this group, that local authorities are consulted properly before the Bill is passed. Can the Minister set out the consultation process undertaken to date and confirm for the Committee the further steps that his department will take to consult local authority leaders on these changes? Can he also update the Committee on how this change to our business rates system will interact with the Government’s wider plans to reorganise local authorities? We know that the environments in which businesses operate vary dramatically throughout the UK. However, this issue is neglected in the drafting of this legislation.
It is concerning that the broad applications of the definitions of hereditaments, which will be determined by the Treasury, will not address these regional disparities and enable a focus on what works locally. When created by the Treasury, definitions are designed with an overarching and national perspective and may risk creating unintended consequences for local businesses. They do not account for the nuances of local businesses, which are well understood by local authorities, so we must be cautious about adopting a one-size-fits-all approach when introducing legislation that will undoubtedly have significant implications for local businesses. The Government risk implementing blanket definitions that are disconnected from the realities faced locally.
Finally, I turn to Amendment 32 in the name of the noble Lord, Lord Thurlow, which seeks to remove the power of the Treasury to define a retail, hospitality and leisure property; this addresses the fact that it is local authorities who decide what constitutes a retail, hospitality and leisure relief property, in line with the government guidance. In tabling this amendment, the noble Lord appears to have many of the same concerns as those expressed in my noble friend Lady Scott’s amendments. I look forward to hearing his speech. We did not discuss this matter before Committee so I was pleased to see on the Marshalled List that I have a friend on this issue on the Cross Benches; I thank and offer my support to the noble Lord, Lord Thurlow, and hope that we can work together constructively after Committee.
To conclude, I hope that all noble Lords will listen carefully to the concerns raised in this group of amendments. I look to the Minister to engage proactively with the issues addressed in this amendment. I beg to move.
Lord Thurlow (CB)
My Lords, the noble Lord, Lord Jamieson, has taken the words out of my mouth. I support much of what he has said.
The starting place for my comments on this group is that the Bill seems to reverse the attempts to regionalise power from the centre; it would take the ability to define these hereditaments back to central government. As the noble Lord, Lord Jamieson, said clearly, the definition of RHL properties needs local expertise. There are regional disparities, to which he referred; it is terribly important to understand that. Regional disparities are huge. This measure is a generic product, but it is subject to huge regional variations. One size does not fit all hereditaments. That is an important starting place. It is no accident that the government guidelines allow local authorities to define RHL in accordance with the existing government guidance. That is very sensible. They are the people on the ground. They understand the give and take, as well as the commercial flows, involved.
A large supermarket on a high street may be the only anchor present in that town, being vital to the health of the high street, probably with a car park or a bus stop, and the only source of sufficient turnover of pedestrians to justify its presence in the high street at all. It has to be understood that, if these anchors pack up and leave, high streets really do suffer. There is a terrible price to pay for letting them go and anything that imperils their presence has to be terribly carefully decided, which is why it is a local issue, not a central government one. I strongly urge the Government to allow local authorities to continue to make these decisions.
The Earl of Lytton (CB)
My Lords, it may save time later if I rise to make a comment in the context of these amendments. I can quite see that there is an objection in principle to some of what is being put forward here, because of the Treasury need to predict the yield, if it is going to be able to explain to the Chancellor what announcement has got to be made in the Autumn Budget with regard to the multipliers.
That said, this raises the question of the complication that has arisen from the fact that, by virtue of the Bill, the discretion to define RHL properties, which has rested hitherto with billing authorities, will be taken away under the Bill and, as we have heard, the definition will be set centrally. How will central government make the relevant decisions in applying this as between a small seaside town at one end and a bustling urban metropolis at the other? Will it be by reference to the road name—high street or non-high street, depending on whether you want to dance on that glass pinhead—its predominant use or position vis-à-vis the town itself, never mind the range of uses as between different geographical locations?
I am entirely unsure what the outcome of this shift will be, but I am pretty certain that it will be pretty crude and, to local eyes, fairly insensitive of locational differences. That is because it will have to make one rule that applies across everything, from Bognor to West Bromwich—that is what is going to happen. There is a great deal to be said for some sort of discretion being in the hands of local government, which understands the pitch. That said, I do not know how easy it would be to achieve that, because valuation list analysis does not give you that information; it gives you an address, a postcode, a use category and a rateable value, but it does not go further than that, so there is actually quite a lot of qualitative information that we need before we can actually deal with that.
There are other aspects to this whole question of local government billing authority choice, which I will go into when I get to the group starting with Amendment 5, but I thought it was worth making that comment at this particular juncture.
Baroness Pinnock (LD)
My Lords, I thank the noble Lords, Lord Jamieson—also known as the noble Baroness, Lady Scott—and Lord Thurlow, for the amendments in this group. I have always in principle supported more powers and influence for local authorities. What I have always said should go without saying, but I repeat it.
However, I am nervous about the amendments from the noble Baroness, which seek to enable local authorities to have discretion over whether the higher multiplier should impact on businesses in their area. This is because, if you look at the Valuation Office Agency’s billing lists, you find that the vast majority—I have not worked out the percentage—of businesses in the £500,000-plus bracket are based in the south-east and London. Therefore, the income from the application of the higher multiplier in those areas is essential for the totality of the business rate take, which is then distributed to fund local authorities across the country. Areas of the country where valuations are much lower absolutely depend on the business rates raised from the south-east and London, and that has been the situation for ever.
If I were a London or south-east authority, I would see anything to encourage businesses as an opportunity and I would use that discretion, but it would be at the expense of councils in the north. Those such as mine in Yorkshire and the Minister’s over the Pennines—I dare not say the county—would suffer as a consequence, because the totality of the business rate take would reduce and the distribution of funding, which is vital for local services, would be less. If the noble Baroness comes up with an amendment which counters that, I could support it, because I support more power and discretion to local authorities. However, as we have a national system, we cannot have little local changes to the benefit of places that currently are fairly well funded or have better income already.
On the amendment from the noble Lord, Lord Thurlow, on defining retail, hospitality and leisure properties, there are later groups which try to get at the detail of this, but it seems to me—maybe the Minister can tell me whether I am wrong or right—that this whole business is associated with the removal of the Covid rate reliefs. Currently I think they are at 75%, to be reduced to 40% and then to zero. It will be quite a big hit to RHL properties to find themselves suddenly facing the totality of their business rate bill.
It seems to me that the essence of the Bill is removing that with one hand in order to provide some relief with the other hand; that is what we have got here. I think that is why the Government are in difficulty in helping us as a Committee to understand the purpose of this. It seems to me that it is that rather than trying to extract more from distribution warehouses et cetera, which we see from the lists provided are not many—of the, I think, 16,000 properties in the £500,000-plus bracket, only about 1,400 or 1,500 are large distribution warehouses. So, my plea is again: let us have an understanding of what this is about. If we had an impact assessment, we would be better able to understand it. I will keep repeating it, so perhaps before we get to Report the Minister will have extracted and published an impact assessment so we can make the judgments that we need to make.
Lord Khan of Burnley (Lab)
My Lords, Amendments 3,18, 32 and 37, which were spoken to by the noble Lord, Lord Jamieson, on behalf of the noble Baroness, Lady Scott of Bybrook, and Amendment 43, tabled by the noble Lord, Lord Thurlow, are concerned with the role of local authorities in determining the application of the higher and lower multipliers. Amendment 3 seeks to provide local authorities with discretion over the application of the higher multiplier, and Amendments 18, 32, 37 and 43 are concerned with who sets the definition of a qualifying RHL hereditament.
Currently, the Bill includes a power for qualifying RHL hereditaments to be defined in regulations by the Treasury, as I have said. Our intention is for the definition broadly to follow that currently used in the retail, hospitality and leisure relief scheme. The criteria for the current relief scheme are contained in guidance from this department and are implemented by local authorities. Ultimately, under the current relief scheme, local authorities have the final say over and discretion about who should be awarded the relief. I understand that that is the type of arrangement that the amendments are seeking to reinstate from April 2026 for the lower RHL multipliers.
I should, for completeness, explain to the Committee that Amendment 43 replaces the Treasury’s power to define RHL on the central rating list with the relevant local authority. In fact, the central rating list is operated by the Secretary of State for my department and does not require any local authority involvement. Instead, Amendment 43 would create an unworkable section of the Bill. This would be due to the fact that central list hereditaments cross multiple local authority areas, which would create a lack of clarity around the responsibility. In addition, this amendment would inappropriately insert local authorities into the central list process. I do not think that this is the intention of the noble Baroness. I think it is important to clarify there are currently no eligible properties to be prescribed for the lower multiplier on the central list, and nor would we expect there to be in future.
Moreover, I understand from the helpful explanation provided that Amendment 32, tabled by the noble Lord, Lord Thurlow, is, in a similar way to the amendments tabled by the noble Baroness, Lady Scott of Bybrook, seeking to confer on local authorities the power to determine what is a qualifying retail, hospitality and leisure hereditament. However, as drafted, it does not do that. As drafted, Amendment 32 would completely remove the power to define a qualifying retail, hospitality and leisure hereditament in respect of unoccupied properties from the Bill. In essence, it would mean qualifying RHL for unoccupied properties would remain undefined, as the power would not automatically be granted to local authorities.
However, I understand that these amendments are intended to probe the matter of local decision-making, and that is how I have sought to discuss them here today. As noble Lords would expect from me, I fully support efforts to give local authorities more power and discretion in their areas. The Bill does not disturb the already considerable powers that local authorities have to award relief to ratepayers as set out in Section 47 of the Local Government Finance Act 1988.
However, we have to balance this against the needs of businesses. What we hear from businesses is that they really value certainty. They tell us that the current RHL relief scheme, operated through local discretion, does not give them that certainty. We hear that they do not favour a system where a national relief scheme, such as RHL relief, can be delivered differently by different local authorities. It leaves businesses, especially those with multiple stores, unsure as to where and when they will be awarded relief.
The new lower RHL multipliers will therefore operate through a single set of regulations for all of England, made by the Treasury. Those regulations will still be implemented by local authorities, using their local knowledge, but the definition will be set by the Treasury. This is something that businesses in general would support. We will work with local government over the coming year to prepare these regulations. That goes to the direct question asked by the noble Lord, Lord Jamieson, in relation to our relationships and work with local government; we are doing that already.
Lord Thurlow (CB)
Does the Minister have any comments to make on the possibility of redefining the use classes for the purposes of rating, which would focus on the Amazon generic problem?
Lord Khan of Burnley (Lab)
I forgot to mention this to the noble Lord, Lord Thurlow; it would be helpful for him to sit down with me to discuss that, as well as his previous request, as soon as he has time in his diary. This is a discussion that we should have to engage on that particular point.
Lord Jamieson (Con)
My Lords, I thank all noble Lords who contributed to our debate on this group of amendments, which deals with the role of billing authorities and the definition of hereditaments.
During the debate, I listened closely to the noble Lord, Lord Thurlow, whom I thank for his support in raising yet again the impact on anchor stores on the high street, which is quite fundamental. I fully support the sentiment of Amendment 32 in his name. It seems plainly obvious that we are closely aligned; I hope that we can work collaboratively before and during Report and that the Minister will both listen to this argument carefully and see what can be done to improve the Bill’s provisions on the definition of hereditaments.
I thank the noble Earl, Lord Lytton, for his support for discretion. The noble Baroness, Lady Pinnock, was concerned that it may mean somewhat less funding for councils in the north of England. That is absolutely not the intention; I would be delighted to look at this matter further and have a conversation outside this Room.
The Minister made a couple of points about certainty. All businesses like certainty but they also want equity. Our concern is about equity and what is reasonable and fair. I was slightly puzzled by what the Minister said—I would be grateful if we could have a conversation on it later—about this idea of “centrally set but locally implemented”. That does not feel like local discretion; it feels like local implementation. I would be keen if he could speak more on that point.
Finally, local authorities have the ability for some local discretion. However, my understanding is that that would be funded locally, which is not particularly desirable.
Lord Khan of Burnley (Lab)
I think the noble Lord is saying “Let’s have some conversations to follow this up”. As I have said to all here, I am happy to sit down with any noble Lord or noble Baroness to discuss any point, in particular post Committee, before we get to Report. I would absolutely welcome a conversation with the noble Lord.
Lord Jamieson (Con)
I thank the Minister.
We must steer away from blanket definitions issued centrally by the Treasury, which does not have the thorough oversight of local businesses in all parts of the UK. Local authorities have a particular understanding of the business landscape in their areas, so while the definition of hereditaments introduced by the Treasury may work in some places, it will not work everywhere or be appropriate to others. This can be avoided if local authorities are issued with a power to determine a hereditament or other type of property.
As the noble Lord, Lord Thurlow, rightly pointed out in his Amendment 32, local authorities already determine what constitutes a retail, hospitality and leisure relief property. We must therefore ask why the drafting of this legislation provides complete power to the Treasury to define a retail property or a hereditament. Would it not be more suitable for local authorities to define property types? I would argue that, with their first-hand local knowledge, local authorities are best placed to define terms in a way that reflects the realities and suits the needs of their local areas.
Unsurprisingly, many questions have been raised in the debate on this group of amendments, so I look forward to the Minister—I thank him for his willingness to engage with us—providing more clarity on the matters discussed. I hope we will engage positively on the amendments in the name of my noble friend Lady Scott. With that, I beg leave to withdraw the amendment.
The Earl of Lytton
Member's explanatory statement
This would have the effect of leaving large RHL properties paying the standard multiplier rather than the supplement in line with previous policy intentions.
The Earl of Lytton (CB)
My Lords, in moving Amendment 5, I will also speak to Amendments 13, 19, 22, 30 and 38 in my name. I thank the noble Baroness, Lady Pinnock, for putting her name to Amendments 5 and 22.
The RHL sector was particularly badly hit as a result of Covid and it has been used, quite reasonably, as a proxy for the challenges facing urban core economies and town-centre trading. The previous Government introduced reliefs in the form of financial support to ameliorate rate bills for this sector, but that has been progressively reduced. I think I have it correct that the figure currently stands at 40% until April this year, reducing to 25% thereafter until April 2026. But at that point there is a cliff-edge readjustment to zero, as I understand it.
If I am correct in thinking that Governments past and present still believe that RHL properties should be accorded some relief going forward, because of their function, inter alia, in town-centre and urban core activity economies, it seems odd that hereditaments with a rateable value of £500,000 and over that are none the less in that RHL category and are still challenged by the longer-term changes in spending patterns should not be capable of maintaining, at least for the time being, some element of relief—or at any rate, not being at risk of a surcharge.
We clearly have an issue here with defining RHL. That is going to be a problem, because at the moment it is in the hands of the local authority. I have already referred to the difficulties of dealing with that when you take it all on board and try to decide it centrally. We also have the question of what constitutes a high street—we have touched on that before—and, finally, defining where the surcharges and reduced multipliers should actually apply.
The problem is that predictability for HM Treasury does not equate to certainty for ratepayers. We keep being told that ratepayers want greater certainty, but I do not see it in what this Bill is trying to produce, or in much else that has gone before in business rates legislation.
This amendment, as your Lordships will appreciate, is an attempt to probe what the Government really intend. The intention would have been made a lot easier, as we have heard, if there had been some sort of impact assessment. The Government seem to be unwilling to do any modelling until the draft 2026 valuation list is published later this year. Frankly, I cannot see that this would prevent having some sort of economic impact analysis of discrete subsets by property type and location, even if the actual values remained unknown. However, the point has already been made, and I will look carefully at what the Minister said in answer to it when this was raised earlier. We are getting to the point of having too many moving parts to give us any clear idea of where this is going, including the ability of policymakers in trying to identify outcomes and trends.
Amendment 5 seeks to remove the risk of surcharge from larger RHL properties. It is as simple as that; what it says on the tin is what it tries to do. This would try to deal with issues of larger shops, restaurants, leisure centres, cinemas, museums, hotels and all sorts of things that operate in a town centre which actually give the thing life and purpose and bring people into that economy. That is the sort of thing that this amendment would try to deal with.
Amendment 13 would provide flexibility in the powers under the Bill to apply the lower multipliers to a wider range of property types. That is not giving local government or billing authorities additional powers. It is saying: let us have those powers in this Bill so that the Treasury can bring them in as and when it sees necessary, without coming back to the whole business of having further legislation. This is made necessary because the range of activities represented by the RHL sector, as I have said previously, may differ between locations and for those reasons that I mentioned. Going forward, it may well require some radical rethinking about what actually underpins the type of use. It might not be RHL but RHL-plus, or something else. It might be minus L, or whatever term we want. We need to be careful that we can understand what underpins local economies.
The explanatory statement with Amendment 13 refers to equalising treatment between losers and gainers in terms of the supplemental or “reduced multipliers”. The Bill provides for the possibility of several supplements but only two reduced multipliers, and more flexibility should be brought in there. As I say, I am suggesting something that would give the Government more powers, rather than fewer, but enables them to fine-tune the outcomes. Amendments 19, 30 and 38 are allied to this last amendment. I will not go into detail, but they are consequential and apply the same principles.
Amendment 22 makes a specific allied provision for unoccupied RHL properties, which, as we know, are otherwise subject themselves to empty rates, even though because of the circumstances relating to the local economy they may not be—in all normal senses of the words—beneficially occupiable, because market demand has collapsed. This is a serious problem for getting town centres back up and running. I appreciate that is an argument if the Treasury wants to control the RHL definition for the purposes of accurately calculating multipliers for future years, but I believe that argument holds good only so long as rating and billing authorities are not required to make an up-front return to the Valuation Office Agency of those properties in their area considered to be in scope.
That may be seen as a fairly imperfect thing but, with all the churn of hereditaments being added, taken away, altered or going temporarily out of rate because they are undergoing major works, or whatever, this is never going to be a precise science anyway. It will always be a little hit and miss. I am quite certain the Treasury has a contingency in the workings to deal with that, so I do not see that there can be any real objection to it.
Baroness Pinnock (LD)
My Lords, I have tabled Amendments 7 and 24 in this group and have added my name to Amendments 14, 31 and 41 in the name of my noble friend Lord Fox. I have also added my name in support of Amendments 5 and 22 in the name of the noble Earl, Lord Lytton, to which he has just spoken. This is an important group of amendments because it seeks to expose the problem that the Government have in applying a higher multiplier to some businesses without targeting them, as we heard on an earlier group this afternoon.
Searching through the Valuation Office Agency’s information reveals, for instance, that about 60 civic centres or town halls, and 80 police headquarters or very large city centre police stations, are included in this higher rate. If the top end of the higher multiplier is applied to these properties, that will add 20% to the business rates bills of those local authorities or police authorities, at a time when both have severe problems with their finances and are struggling to make ends meet.
It is not just police headquarters, police stations and town halls: 80 courts, from the Supreme Court at one end to large magistrates’ courts at the other, are included in the rateable values assessed as being above £500,000—this is in the information that the Minister shared with us at the weekend—as, indeed, are 80 prisons. I am not quite sure why the Government are including town halls, civic centres, police HQs, courts, prisons and 630 schools in the higher multiplier. Why would any Government want to impose 20% higher costs, potentially, for business rates on those publicly funded essential institutions? I am sure the Minister will have a reply; whether it is one I will accept is a different matter. It gets worse: 300 further education colleges are included in this.
We just had a skills Bill passed through this House, which purported to increase the advantages of a skills agenda for young people. Most of us know that FE colleges have been consistently undervalued and underfinanced over the last 10 to 14 years—or even more. Adding this to the list of their problems will not help the skills agenda, nor will 360 state schools. Why on earth would you include state schools in this catch-all of the higher multiplier? Within the budgets and funding for state schools there is an element to cover their non-domestic rates costs. Whether that will be increased for those who are caught up in this higher valuation remains to be seen. I am just quoting from the information that the noble Lord shared.
On top of that, 310 universities are caught up. As I declared earlier, I am a vice-chair of the University of Huddersfield. I know how hard the changes that the previous Government made have hit university funding. Across the country, universities are having to close departments—often those that are vital for the future growth agenda that the Government are following. I need to hear from the Minister how the Government will address this non-targeted way of having the higher multiplier. Will all those state-funded institutions that I listed—local government, police, prisons, courts, schools and FE colleges—be compensated for the potential higher rate multiplier and therefore the 20% increase in their business rates? Universities function as businesses now and have very little income that comes directly from government, but they are facing very challenging financial futures, which is absolutely contrary to what the Government want to achieve from their emphasis on R&D. That cannot happen if universities struggle to make ends meet.
The challenge the Government have is to ensure that the changes result in the same income from NDR as previously. Between 30% and 40% of local government funding now comes from business rate income. As well as my earlier questions, can the Minister assure this Committee that local government will have the same total funding pot from business rates as it does now and—because of the way the system works—that no local authority will suffer a loss in income from business rates as a result of these changes? I will not go into the way it works for local government. The Minister will understand that assuring the total funding pot of business rates does not necessarily mean that each local authority will continue to have the same level of funding.
The question is whether the Minister can assure us that schools, colleges and so on—all those publicly funded institutions that may have to pay considerably higher costs in business rates—will have compensatory funding from the Treasury to meet those additional costs. Otherwise, they are giving with one hand and taking away with the other.
I am going to leave my noble friend to talk about the importance of music venues. The noble Earl, Lord Lytton, knows that I support both the amendments he has tabled, to which I have added my name, and I do not wish to add anything further to what he said. I am looking forward to the Minister’s answers to my questions .
Baroness Scott of Bybrook (Con)
My Lords, I rise to speak to my Amendments 12, 15, 29 and 33 and, in doing so, I apologise to the Committee that I omitted to declare my interest as a vice-president of the LGA. I keep forgetting it. My amendments seek to exempt manufacturing businesses from the higher multiplier.
The manufacturing industry is exceptionally important to the British economy, and to place an additional financial burden on this sector is unsatisfactory. In 2023, the total value of UK manufacturers’ product sales was £456 billion, which demonstrates the value of the sector to the UK economy. The sector accounts for 8.1% of UK employment and, in July to September 2024, accounted for 8.8% of the total UK economic output. Ministers never tire of telling us that growth is this Government’s number one mission, so can the Minister give the Committee a cast-iron guarantee that the Bill will not have a negative impact on the growth of our UK manufacturing sector?
Recently, the global political situation demonstrated the importance of being self-reliant with the rise in energy prices we have seen in the wake of Putin’s illegal war in Ukraine. My amendments seek to protect this vital sector, which has an important role to play in growing the UK economy, by allowing manufacturing hereditaments to qualify for the lower multiplier. This Bill, despite promising business rates reform, will put an arbitrary threshold in place and many businesses will be adversely affected. We will listen carefully to the Minister’s response to this group. Given that the manufacturing sector is likely to be included in this bracket, I would be grateful if the Minister would take this opportunity to outline exactly what impact his department expects the changes to business rates will have on the UK manufacturing sector.
This sector is already facing higher costs due to the increase in the cost of labour, and the Government are hitting it with a triple whammy of increasing costs with the increase in the minimum wage, which of course we support, and the increase in employer national insurance contributions, which is a damaging jobs tax. The House will have the opportunity to debate the national insurance measures tomorrow, and we will be speaking up for the number of sectors that will be devastated by this government policy. But why would these businesses invest to increase the value of their business and risk it going over £500,000? Labour-intensive sectors are already paying the cost of a Labour Government, and if businesses are forced to pay the higher multiplier suggested in this Bill that will only worsen their predicament.
Amendments 5 and 22, in the name of the noble Earl, Lord Lytton, seek to exempt retail, hospitality and leisure businesses from the higher multiplier. They are sensible amendments, and several of my amendments touch on very similar issues. I have referred in my amendments to specific types of stores on our high street, which are yet to be debated, but the sentiment of the noble Earl’s amendments is certainly one that I support.
Amendments 14, 31 and 41 are in the name of the noble Baroness, Lady Fox, who I do not see in her seat.
Lord Fox (LD)
They are not from the noble Baroness, Lady Fox. They are in my name.
Baroness Scott of Bybrook (Con)
Once again today, I apologise to the noble Lord.
Lord Fox (LD)
For the Committee’s information, there is a misprint. It should have read “grassroots music venues and larger venues”. If I had spoken before the noble Baroness, I would have explained. The Royal Albert Hall is clearly not a grass-roots venue.
Baroness Scott of Bybrook (Con)
That confused me, but I thank the noble Lord.
Amendments 7, 13, 19, 24, 30 and 38 all seek a similar thing: to allow the Treasury the power to exempt other hereditaments from the higher multiplier as it sees fit. While I understand the desire to introduce flexibility into a Bill that does not seem to have been fully thought through, it is important that we empower local authorities rather than afford the Treasury further powers. I look forward to the Minister’s response.
Lord Fox (LD)
I will speak for myself rather than the noble Baroness. What we have seen in the various themes in this group is the malign effect of a blunt instrument. My noble friend Lady Pinnock raised the important issue of public sector buildings that fall into the trap of high value and therefore the higher multiplier. Clearly, we need to understand the overall financial effects on those organisations. The noble Baroness, Lady Scott, spoke well about manufacturing. We tabled the same amendments in the Commons, where one of the implications of what the Government said was that manufacturing does not have to be in a town centre, on the basis that there is somehow an ability to up sticks and go without huge capital implications and lots of other things.
If we are talking about a mixed economy in town centres, things such as light engineering and printers, as well as other businesses such as accountants, design agencies and all sorts of things, add to their plurality and success. When you remove from a town centre the people who work or live there, you remove a huge proportion of the trade that the sector that the Government are seeking to boost relies on. Not everybody has to come in a car to buy a sandwich from a shop. They might work or live there. That is an important part of trade that this Bill seems to ignore.
I turn to my Amendments 14, 31 and 41. I was going to clarify at the beginning that the explanatory statement should have read that they are to probe the impact of the higher multiplier on large venues and, for other elements of the Bill, on grass-roots venues. There were two issues, and I somehow managed to conflate them into a mess.
I spoke earlier about unintended consequences. This Bill has lots of potential unintended consequences. The Music Venue Trust calculates that just the move from 75% to 40% business tax relief from April 2025 will create a demand for £70 million more in additional premises tax from the GMV sector, as I am going to call grass-roots music venues, that in 2024 returned an entire gross profit across all 810 venues of just £25 million. In other words, the sector will be asked for well over twice—nearly three times, in fact—what it made in profit last year. Some 43% of grass-roots music venues in the UK made a loss in 2024 and, in 2025, they continue to operate an overall profit margin of just 0.5%. This is a very marginal activity. I believe that, given the tone of the Budget and the commitment to consider the culture area of our economy in the spending review, this must have been an unintended consequence or an omission of protection, rather than an intended tax rise. I look to the Minister to confirm this.
As an aside, GMVs have specific space issues in their business characteristics that are not recognised properly in the general rateable value process. That is a separate issue with which a review would, I hope, deal.
I return to the consequences of this Bill. There are two areas. The first is an option for the Government to create multipliers that are designed specifically to encourage activity we wish to see. This goes back to the flexibility point that other noble Lords mentioned. For example, specific multipliers for cultural spaces would go a long way to support creative growth and the regeneration of our high streets, both of which are key elements in the Government’s wider agency, but there is an immediate, separate issue facing cultural spaces that operate in properties over the rateable value threshold of £500,000.
Just like schools and universities, there are big venues around the country, such as the Royal Albert Hall, the Underworld, the Roundhouse and the Royal Festival Hall—there are others, I am sure, but not a huge number—that fall above the £500,000 threshold. For those businesses, there needs to be some differentiation according to their activity. I come back to what my noble friend said about universities. Why are we including them in this measure? Why are we including police stations? Also, why are we including large-scale cultural icons? The idea of flexibility will help with other issues, about which the noble Baroness, Lady Scott, and my noble friend will talk in our debate on a future group of amendments. Without that flexibility, what we have is a blunt instrument, as I have said before.
I come back to music venues: we believe that these venues will be penalised unless something is done. Can the Minister respond to either this debate or some consultation with experts so that we can make sure that that does not happen? Grass-roots music venues are the R&D of our music industry. They are where almost every band starts. Bands start in their bedrooms, they then move to the streets, and then get to a grass-roots music venue. They may end up in the Royal Albert Hall, on television or whatever, but GMVs are where our music industry comes from. That ecosystem also supports wider nightlife and hospitality businesses in the UK, including pubs, food businesses, takeaways, taxis and nightclubs, all of which have physical premises in the community.
There are two issues here. One is the removal or reduction of relief for grass-roots music venues across the country, which will, on average, put them out of profit and into loss. The second is the application of the higher multiple on particularly large venues around this country. I do not think that the Government intended to deliver either of these outcomes for our music industry, but they must intend to improve and change the system in order for these catastrophic issues not to happen. So I hope that the Minister, either now or with consultation, can come back with two different solutions for these two sides of a very important industry.
Lord de Clifford (CB)
I speak in support of this group of amendments. I declare my interest that I do not have the expertise that I have listened to this afternoon, so I will just do my little bit. I thank the Minister for his reply to the questions I sent him on the multiple retail shops that will be affected by this increase due to the larger rate for valued properties.
I support Amendment 5 in the name of the noble Earl, Lord Lytton, and the noble Baroness, Lady Pinnock. There will be 3,260 retail shops affected by these changes, many of which are supermarkets. If the Government increase the multiplier by 0.1%, this would increase costs by about £3.7 million per year on these properties. This would be passed directly on to customers who shop in these shops, supermarkets and hypermarkets, and would also damage the large anchor stores in shopping centres, which are under pressure already from the online warehouses which this Bill tries to target. The noble Lord, Lord Thurlow, has already detailed the value of these large retail stores to the high street and shopping centres much more expertly than I. Therefore, I ask the Minister to consider these amendments urgently, because they will add costs to these businesses.
The Minister also made clear why no detailed impact assessment or calculations have been done. This is due to these rates being set in the Budget, and the revaluation, which will be a disappointment to the noble Baroness, Lady Pinnock. The cost to large businesses is unknown. The Bill could damage these larger businesses just to support smaller ones. As the noble Baroness, Lady Pinnock, stated, we just do not know what the final financial impacts of this will be. I spoke to a leisure business this weekend. It has no idea what its rates will be in 2025-26 and therefore finds it very difficult to budget for what it will have to charge and how it will manage its subscriptions in the coming year.
Regarding Amendment 13, as the noble Lord, Lord Fox, said, the Bill tries to protect the high street. The high street is not only retail, hospitality and leisure, so I support the amendment of the noble Earl, Lord Lytton, to try to ensure some flexibility in the future for these types of businesses to be added in. High street businesses will change in the coming year as high streets need to prosper, with new types of business. These could include veterinary surgeons—a business that I have an interest in—who want to come to the high street and need to be encouraged with possible lower rates.
I support the amendments of the noble Baroness, Lady Pinnock, who spoke with passion about government and local authorities, the noble Baroness, Lady Scott, who spoke in support of the manufacturing industries and the noble Lord, Lord Fox, who spoke in support of music venues—all of which need more clarity and information in this Bill.
Lord Khan of Burnley (Lab)
My Lords, the amendments in this group and the three groups that follow seek to change the Bill in two broad respects. They seek to carve out properties from the higher multiplier and to widen those hereditaments eligible for the lower multipliers. These amendments and those that follow would have a significant impact on the scope of Clauses 1 to 4, the potential cost of the lower multipliers and the revenue flowing from the higher multiplier. They would therefore reduce the Treasury’s ability to set sustainable and worthwhile higher and lower multipliers. As such, it is important that we consider these amendments—and those in the three groups that follow—in the overall context of the wider purpose of Clauses 1 to 4.
In the Budget, the Government announced their intention to introduce a permanent tax cut for retail, hospitality and leisure properties from 2026-27 by introducing two permanent lower multipliers for these properties. It is important that any tax cut is sustainably funded, which is why the Government also announced their intention to introduce a higher multiplier for the most valuable properties—those with a rateable value of £500,000 and over—from 2026-27.
Lord Fox (LD)
I think I clarified that there were two issues. If the Minister looks in his data, he will find that the Royal Albert Hall is classed as being over £500,000, and I specifically asked about the Royal Albert Hall, so we require an answer to that. The point about grass-roots venues was not about the £500,000; it is about the loss of the relief, from 70% to 40% in the coming financial year, which will put them below the waterline, on average. That was a specific and different question that the Minister may want to answer separately.
Lord Khan of Burnley (Lab)
I did say that I would come back to the noble Lord on his specific question.
Baroness Scott of Bybrook (Con)
Will the extra burdens on local authority budgets that might come be funded by the new burdens policy?
The Earl of Lytton (CB)
I have just looked up the Royal Albert Hall. It has a £1.9 million rateable value.
Lord Khan of Burnley (Lab)
I thank the noble Earl very much for that clarification, but if he looks at my remarks later, he will see that I said that we do not expect “many”—not any—grass-roots music venues to fall above the £500,000 threshold. As I said, although we do not hold data specifically on music venues, we know, for example, that pubs, which often play an important role in the grass-roots music scene, have an average rateable value of only £16,800.
The noble Earl, Lord Lytton, asked how the lower multipliers will affect vacant property. The Bill allows for the lower multipliers to apply to vacant RHL properties. I assure the noble Earl that we intend to apply these new multipliers to occupied properties in the same way as we do to vacant properties. That will be consistent.
The noble Lord, Lord de Clifford, and the noble Baroness, Lady Pinnock, touched on the important point of why an impact assessment has not been prepared. Let me be absolutely clear and repeat my previous points on this: policies and legislation concerning tax and the administration of tax fall outside the meaning of regulatory provisions and are therefore not required to be accompanied by an impact assessment. However, His Majesty’s Treasury committed to publishing an analysis of the new multipliers at the Budget.
A further set of amendments seeks to expand the set of properties eligible for the lower multipliers. This includes widening the lower multipliers to manufacturing properties. I repeat this for the noble Lord, Lord Fox, and the noble Baroness, Lady Scott, who raised this in particular: a further set of amendments seeks to expand the set of properties eligible for the lower multipliers. This includes widening the lower multipliers to manufacturing properties and, more generally, a power to widen the lower multipliers to other sectors.
I acknowledge the intention of the noble Earl, Lord Lytton, to provide greater flexibility within the Bill, should it be deemed appropriate, in future, to apply the lower multipliers to other types of property. However, the Government were clear at the Budget that the intention is for the permanently lower tax rates to apply to qualifying RHL properties from 2026-27, ending the uncertainty of RHL relief that has been extended year on year. This has been an ad hoc system, and year on year is not the most effective way for businesses to plan.
Lord Fox (LD)
I think I heard the Minister say, on a different group, that this will apply for three years. On that basis, we cannot really expect a root-and-branch change of the system until either the end or beyond the end of this Parliament. Would that be a reasonable assessment?
Lord Khan of Burnley (Lab)
The noble Lord makes an interesting point. This will come into force in 2026-27; we are talking about the revaluation and review being three years after that. Again, this provides more certainty, because we do not want year-on-year unpredictability in an ad hoc system. This is a sustainable process, and it will give us a chance to see what the environment and fiscal climate will be at that time. Again, it is for the Treasury to set the multipliers.
Against the current fiscal backdrop, widening the scope of properties eligible for the lower multipliers would potentially reduce the level of tax cut that could then be provided to that cohort. Similarly, widening the scope may require a higher tax rate on those properties paying the higher multiplier to enable the Government to deliver a permanent tax cut.
The amendments for manufacturing could, of course, widen the lower multipliers somewhere beyond the town-centre and high-street environment. As we have heard from stakeholders, retail, hospitality and leisure businesses tend to occupy properties in higher-value locations with higher footfall, which in turn drives up the rateable value and rates bill. The Bill will rebalance this. The same cannot generally be said for manufacturing, so the case for special treatment for it here is weaker.
The Government are supporting our manufacturing sector through other means. At the Autumn Budget, we announced £975 million for the aerospace sector over five years, over £2 billion for the automotive sector over the same period and up to £520 million for a new life sciences innovative manufacturing fund.
I turn to a point raised by the noble Lord, Lord Fox. Live music venues are currently eligible for the existing RHL relief. The definition of RHL, in terms of the new multipliers, broadly follows the current definition, which will be set later in secondary legislation.
Lord Fox (LD)
I am sorry; I am just trying to process that. Are you saying that, going forward, they would continue to benefit from the lower multiples as RHL-qualified businesses?
Lord Khan of Burnley (Lab)
In terms of over £500,000, we are going to have the same policy applied to all sectors. We are not doing carve-outs, but in terms of any relief that music venues are having below that, the definition of the new multipliers will broadly follow the current definition and will be set out in secondary legislation later this year.
I think I have answered the question asked by the noble Baroness, Lady Pinnock, but I will make a few points again about the impact on the public sector. The fiscal inheritance demands tough choices in order to fix our public services to create long-term growth and investment that will support businesses, but we have sought to mitigate the worst impacts of these choices. It would not be fair on businesses if we excluded the public sector from the higher multiplier.
In relation to the points made by noble Lord, Lord Fox, and the noble Baroness, Lady Pinnock, I repeat, in particular, that the Government will work to ensure that, as far as practically possible, local government income from business rates is unaffected by business rates tax rate changes. The Government are making good on the promise to reform the local government funding system. I talked about this on the previous group. We will pursue a comprehensive set of reforms for public services to fix the foundations of local government in partnership with the sector and with the principle of giving councils early notice.
There has been a wide-ranging debate on this group. For the reasons that I have set out, I hope the Committee will understand, as we consider these amendments and those in the three groups that follow, that we should not seek to carve out certain properties from the higher tax rate or bring other properties into eligibility for the lower multiplier. I hope that the noble Earl will withdraw his amendment.
The Earl of Lytton (CB)
My Lords, I thank all noble Lords who have spoken to this group of amendments for the support, some of it qualified, for the amendments that I have put forward. I do not wish to labour the point, especially as the temperature in this Room seems to continue to drop and my feet are getting extremely cold.
To pick up the point that was made by the noble Lord, Lord Fox—that the size of hereditament does not equate with ability to pay—some of our most marginal and most valuable operations operate right on the limit. I hear what the Minister says about the difficulties of dealing with this; I have to say that I do not share his view. We already have two lists: we have a general rating list, and we have a central rating list, and there is no reason why the Government could not split it into more than that if they chose to do so. As I said earlier, when it comes to a digitised list, one can fiddle around with it in all sorts of ways. We are talking about 16,500, or some such number, of entries with a rateable value of £500,000 and above. I would have liked to have had a pointer that the Government sort of get this and want to move more rapidly to, first, making the present system more flexible and responsive and, secondly, that we can have some pointer to where this is going in terms of reforming the whole business rates system. However, that is clearly an argument for another day.
My last point, an entirely frivolous one, is that the contents of the various groups of amendments gets smaller henceforward. I beg leave to withdraw the amendment.
Baroness Pinnock
Member’s explanatory statement
This amendment, together with Baroness Pinnock’s amendments to page 3, line 37, page 4, line 6, and page 4, line 17, would have the effect of retaining the standard multiplier for hospitals, medical and dental schools, or any other healthcare setting to be determined by regulations.
Baroness Pinnock (LD)
My Lords, this group of amendments focuses on the impact of the higher multiplier on hospitals, clinics and other larger health institutions. Amendment 6 is in my name and that of my noble friend Lord Fox, and the other three amendments, Amendments 20, 23 and 39, are consequential amendments. The Minister has spoken several times this afternoon about being “fair and sustainable” and also, just latterly, about “tough choices”.
I have looked down the list shared by the Minister of those properties with rateable values above £500,000. There are some notable exceptions. I could not find Buckingham Palace. Tough choices? Are Parliament and the Parliamentary Estate exempt? I could not find them in the list. Maybe the list is not complete; if that is the case, it would be good to hear from the Minister how much extra the Government expect the higher multiplier to cost the Parliamentary Estate.
Lord Jamieson (Con)
I thank the noble Baroness, Lady Pinnock, for moving this amendment and outlining the unintended consequences of this Bill. The proposal to exempt healthcare from the higher multiplier is an issue that has sparked considerable debate in the wider community.
The amendments in this group propose two key changes: to exempt healthcare from the higher multiplier; and to expand the definition of healthcare to include hospitals and medical and dental schools. These changes seek to address the concern that critical services in the healthcare sector could be disproportionately affected by the Bill’s provisions. These amendments address very real concerns that services could be disproportionately affected through this legislation, revealing further unintended consequences of this Government’s Bill.
Amendment 6 is particularly important as it seeks to remove healthcare from the higher multiplier, directly responding to concerns raised by hospitals and other healthcare providers that are already under significant financial strain. Exempting healthcare from this additional tax burden could protect vital services, ensuring that they can continue delivering essential care without being further impacted by this Bill’s provisions. The National Pharmacy Association has warned that pharmacies across the country are at risk and may be forced to cut hours because of the Government’s triple whammy of increased business costs this April. It cannot be right that access to healthcare is threatened by the Government’s appalling tax policies. Will the Minister give the Committee a commitment today that the Government will change course on their tax policies if it is proven that access to healthcare will be reduced as a result of their policy?
Amendments 20 and 23 seek to clarify and broaden the definition of healthcare, ensuring that medical and dental schools are included in these protections. Given the importance of these institutions in training future healthcare professionals, it is worth considering whether their exclusion from such protections could affect the quality and sustainability of the healthcare workforce—particularly at a time when the sector is facing increasing demand. I would be grateful if the Minister took this opportunity to outline exactly how the Government will safeguard the future of our healthcare workforce in the light of these concerns.
Finally, Amendment 39 repeats the proposal to exempt healthcare from the higher multiplier, reinforcing the argument that this sector should not bear the weight of a tax system that may further stretch its already-limited resources.
I would like to touch on the cliff-edge nature of the £500,000 threshold; this has been mentioned in previous debates by the noble Earl, Lord Lytton, and my noble friend Lady Scott. A local health facility might want to add one consulting room. If that pushes it over the £500,000 threshold, it may no longer be affordable. We need to think carefully about the cliff-edge nature of this measure; I would be grateful if the Minister could provide some additional thought on it and come back to us.
In conclusion, these amendments ask important questions about the impact of this Bill on healthcare sectors. Although the Bill seeks reform, we must ensure that essential services are not disproportionately affected by the higher multiplier or excluded from necessary protections. The noble Baroness, Lady Pinnock, has brought forward a compelling case for the need to reconsider the treatment of healthcare in the Bill. I would be grateful if the Minister took this opportunity to clarify how the Government plan to address these concerns and ensure that vital healthcare services are not unduly burdened; I look forward to his response.
Lord Khan of Burnley (Lab)
My Lords, these amendments seek to change the Bill to remove healthcare hereditaments from the higher multiplier. In the previous debate on the amendments in group 4, just a few moments ago, I explained why the Government have taken a sector-agnostic approach to the higher multiplier and not excluded any sector or type of property. Of course, the same considerations apply here. This Government fully support the healthcare sector, but it would not be fair to exclude some and not others. To sustainably fund the lower multipliers, we must ensure that we can raise money from higher multipliers; the only fair way to do this is to apply it to all hereditaments at £500,000 and above.
As I said in the debate on the previous group, it is important to look at the facts. The Valuation Office Agency’s statistics show that, of the 16,780 properties caught by the £500,000 threshold, based on the current rating list, only 350 are in the health subsector. Of these, 290 are NHS hospitals and only 30 are doctors’ surgeries or health centres. These numbers are rounded to the nearest 10 and we do not have separate data on medical or dental schools. The impact on this sector is therefore limited and, where it applies, much of it falls on the NHS. The Autumn Budget fixed the spending envelope for phase 2 of the spending review, which will deliver new mission-led, technology-enabled and reform-driven budgets for departments. We will consider the full range of priorities and pressures facing departments in the round, including any impact of the higher multiplier, when setting these budgets.
On the questions about the Bill creating more cliff edges in the system, the new higher-rate multiplier will apply to properties above £500,000, which will fund and support the high street in a sustainable way. However, the discussion paper published at the Autumn Budget highlights that some stakeholders have argued that cliff edges in the system may disincentivise expansion. It committed to explore options for reform. The Government have recently completed an initial stage of engagement to understand stakeholder views and areas of interest for reform, and we are open to receiving written representations in response to the priority areas for reform. That is open until 31 March 2025.
On the specific question about examples of properties that the noble Baroness mentioned, it would be inappropriate for me to discuss the rate bills of specific ratepayers, especially as one of them is a domestic property. To conclude, set in the context of these facts and assurances of how we will approach the issue in the spending review, I hope the noble Baroness is able to withdraw her amendment.
Baroness Pinnock (LD)
My Lords, I thank the noble Lord, Lord Jamieson, for his support for the amendments that I have tabled to try to persuade the Government to think again. The Minister talked about an agnostic approach to the application of the higher multiplier. Now, agnostic approaches are all very well until we see what we catch in the trap. What we have exposed this afternoon is that the Government intend to apply higher costs to the very public services for which they are desperate to have higher funding. They cannot, on the one hand, say that they wish to provide higher funding for some of these important public sector services when, on the other hand, they take some of the funding away. That is the consequence of an ill-considered agnostic approach. I urge the Government to think about having a more targeted approach that includes in its catch more warehouse distribution services and fewer public sector providers of important and valuable public services. At the minute, that is not what is happening.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment, along with another in the name of Baroness Scott of Bybrook, seeks to exempt businesses that open for longer than 18 hours a day because they are often the only retailer in the local area.
Baroness Scott of Bybrook (Con)
My Lords, in moving Amendment 8 I will also speak to the rest of the amendments in this group. They focus on protecting the essential services that are provided up and down the high street.
Amendments 8 and 25 in my name seek to exempt community shops that are open for more than 18 hours a day. Within local communities, there is often a shop that is open for longer hours than general retail premises. Often, this can be a garage forecourt which is open 24 hours and has essential things for people working in the night-time economy, who may be on a different clock to us. These shops provide essential services for those living in that surrounding community. Without them, there may be fewer customers on that high street, which we believe would begin to damage the surrounding shops and businesses. People often rely on these stores with longer opening hours, so exempting them from the higher multiplier would ensure that they can continue to provide a vital service to local people.
My Amendments 9 and 26 seek to exempt hereditaments that have a post office on the premises from qualifying for the higher multiplier. A post office does not make the same level of profit as the shop, but it provides essential services that many people rely on. Does the Minister agree that it would be unacceptable for shops providing these services to close because they are inappropriately hit by the higher multiplier?
Amendments 10, 17, 27 and 35 seek to exempt premises shared with banking hubs. Less than two weeks ago, many in this House discussed the importance of banking hubs in a debate on bank closures and the particular impact on rural communities. The shift to online banking inevitably brings to light issues of accessibility. While digital banking services are convenient for many, they are inaccessible to others, particularly those living in rural areas. The elderly and the disabled are often significantly impacted by the lack of physical banking services. Age UK has found that over 4 million over-65s in the United Kingdom with a bank account did not manage their money online, placing them at a high risk of financial exclusion. Bank closures have also been found to negatively affect those with disabilities, with a Which? survey concluding that 50% of respondents would be negatively impacted by not having access to a physical service.
The previous Conservative Government recognised the detrimental impact of bank closures on groups in our society and collaborated with the banking industry to establish shared banking hubs. Operated by both the Post Office and banks, these hubs offer essential banking services, including cash withdrawals, deposits and in-person consultations. We must continue to look to mitigate cases of financial exclusion, and I draw noble Lords’ attention to my Amendment 26.
This group of amendments deals with a matter of utmost importance for millions of people across the UK who rely on these essential services. I therefore encourage the Minister to listen carefully to the concerns raised in the debate.
Lord Fox (LD)
My Lords, this is another example of the blunt instrument in operation. We have talked about increasing tax on public services, some of which have the ability to recover the money via new burdens, while some do not. But these services are offered by private sector organisations, and we know for a fact that they will not get recompense from the Government for this, which will increase their costs, reduce their profit and may eliminate their viability altogether. When post offices and Crown offices are retreating from the high street, this is not a good time for those businesses.
In a moment we will talk about flagship operations. I put it to noble Lords that banks and post offices are flagship operations. People travel to towns to visit a post office and banks, and then they spend their money on other things, so by denuding or putting in peril those sorts of operations, we are removing the attraction of town centres. We are making sure that they do worse rather than better. That is the first point.
Secondly, I have a relative who owns a shop in a country town—I do not have an interest in that shop—and one of their biggest difficulties is banking their money. They have to drive 20 miles twice a week to take bags of money to bank it because there is no longer a bank. The removal of a banking hub would make that even harder. It also drives shops to go fully digital, which means that people who do not want to use digital and want to keep using cash are no longer facilitated by those businesses. I have seen businesses that can no longer handle cash simply because they no longer have the necessary banking facilities.
Once again, we are looking at the RHL sector, but these businesses serve the RHL sector and make their lives operational. I am happy to support the various amendments in this group in the name of the noble Baroness, Lady Scott, and I look forward to the Minister explaining how taxing post offices and banking hubs will help the RHL sector in our town centres and high streets.
Lord Thurlow (CB)
I will say a few words in support of the excellent Amendments 8, 9 and 10 in the name of the noble Baroness, Lady Scott. It had not occurred to me but is worth saying here that, just as an anchor is critical to the economic health of the high street and the social contribution that comes with it, so are these very small and vital retailers—if that is the right word—for banking facilities, as well as the small facilities open all hours, 18 hours a day or whatever it may be. They are critical. In fact, they should perhaps be considered in a conversation about revising the use classes order because, as we heard with the good examples given, they are essential to the health of the local community.
Lord Khan of Burnley (Lab)
My Lords, in her contribution, the noble Baroness, Lady Scott, said that she hoped the Minister listens very carefully. Just to reassure her, I always listen very carefully and with great interest to everything that the noble Baroness says, as is the case for all noble Lords in this debate.
Six of these eight amendments seek to change the Bill to remove certain high street services from the higher multiplier. In the previous debates on the amendments in groups 4 and 5, I explained why the Government have taken a sector-agnostic approach to the higher multiplier and have not excluded any sector or type of property. The same considerations apply here and I will not repeat them.
As regard detail, it is worth being clear what type of retail properties on the current rating list would be caught in the higher multiplier. The Valuation Office Agency’s published data shows that, of the subsector of shops that are at or above the £500,000 threshold, 72% are supermarkets, large food stores or retail warehouses. That leaves only 900 other shops at or above £500,000 across England, and of these 630 are in London and the south-east. For most regions, the number of shops affected, excluding supermarkets, large food stores and retail warehouses is fewer than 50. These numbers are rounded to the nearest 10.
In particular, the noble Baroness, Lady Scott, mentioned petrol stations, and amendments would support petrol stations but, in reality, from the Valuation Office Agency’s data, the number of petrol stations above the higher multiplier threshold of £500,000 is fewer than five.
The danger with these carve-outs from the higher multiplier is that the benefit could, in part, flow to large businesses in thriving and valuable locations, reducing the ability for us to support smaller businesses and less valuable locations through the lower multiplier. We understand the importance of facilities such as post offices or banking hubs for local communities. The average post office has a rateable value of only £16,000, so we do not anticipate that the higher multiplier will apply to very many premises used by post offices, and post offices are eligible for the existing retail, hospitality and leisure relief.
We understand that Amendments 17 and 35 seek to add to the lower multiplier hereditaments that host banking hubs. In the debate we have just had on group 4, I explained why we feel it necessary to target the lower multiplier on RHL. These amendments could easily widen the lower multiplier to other settings and introduce a loophole to the Bill. I assure the Committee that the Government will continue to work closely with high street banks to ensure that communities and local businesses have access to the banking services they need. I hope the Committee is assured that the Government remain committed to banking hubs. With these facts and assurances, I hope that the noble Baroness, Lady Scott of Bybrook, will withdraw her amendment.
Baroness Scott of Bybrook (Con)
My Lords, I thank all noble Lords who have supported these amendments. This group has dealt with high street services, in particular, post offices and banking hubs. While it goes unnoticed, a post office remains an essential street service, as we heard from the noble Lord, Lord Thurlow. Its use extends well beyond a mail service, and for many, particularly those without internet access, it plays a critical role in ensuring that individuals can pay their bills, collect their pension or access other financial services that a bank would traditionally offer. Indeed, they are the backbone of many of our British high streets, notably those in rural areas. As we enter a digital age, physical banking services offered by bank branches are incredibly hard to come by. When branches close, the impact extends far beyond just customers. It impacts on the whole local economy, as we heard from the noble Lord, Lord Fox, and the noble Baroness, Lady Pinnock.
Many small retailers—farmers and other independent traders—continue to rely on cash transactions. When a bank closes, cash withdrawals become harder, credit becomes less accessible and many face greater financial insecurity. In fact, bank closures may be yet another a blow to small businesses, with the Federation of Small Businesses warning that they could result in reduced
“ability to manage cash flow and productivity”.
Baroness Scott of Bybrook
Member's explanatory statement
This amendment, along with others in the name of Baroness Scott of Bybrook, seeks to exempt anchor stores because they drive business on the high street.
Baroness Scott of Bybrook (Con)
My Lords, I rise to speak to Amendments 11, 28 and 36 in my name, which seek to exempt anchor stores from the scope of the proposed changes in the Bill. These amendments are crucial for safeguarding the health and vitality of our high streets particularly in the context of the ongoing challenges facing retailers and small businesses. I thank all noble Lords who, throughout this debate, have acknowledged the importance of these businesses.
As we are aware, anchor stores play a vital role in the commercial ecosystem of any high street. They act as a significant draw for foot traffic, attracting customers not only to their own establishments but to the surrounding smaller retailers and businesses. It is no exaggeration to say that, without anchor stores, many high streets would be devastated. They are the backbone that supports the smaller independent shops that contribute to the unique character of our local economies.
However, while the higher threshold for non-domestic rates is a well-intentioned measure to ensure that out-of-town warehouses and large-scale online retailers contribute their fair share, we must pause and consider the unintended consequences of this approach. The so-called Amazon tax may be designed with online giants in mind, but the current proposals would also capture larger businesses operating on our high streets—businesses that, in many cases, are anchor stores.
It is a very real concern that these stores become subject to increased rates. They may choose to relocate to out-of-town retail parks where rates are more favourable. This would exacerbate the very problem we are seeking to address—the decline of our high streets and the hollowing out of our town centres. We must ask ourselves what the impact would be on our communities if these anchor stores, which currently act as magnets for footfall, were to disappear from our high streets. Would we see a chain reaction where smaller businesses, already struggling under the pressure of rising costs and changing consumer habits, are left without customers and forced to close? How many small businesses would be driven to the brink if the larger retailers that currently support them were to move away, taking their foot traffic with them? These questions are not just theoretical; they are deeply practical and must be considered carefully if we are to protect the future of our high streets.
Amendments 11, 28 and 36 seek to exempt anchor stores from the broader measures in the Bill and offer a way forward that ensures that we do not punish those businesses that are essential for the economic vibrancies of our town centres. They are about striking the right balance. We must ensure that we support businesses that are critical to the future of our high streets and town centres. Exempting anchor stores from this measure would help to achieve this balance. I ask the Minister to consider whether the current proposals risk harming the very high streets that we all seek to protect. We cannot afford unintentionally to undermine the businesses that are central to our local economies. Exempting anchor stores is a sensible, practical step to ensure the long-term health of our high streets, and I urge the Government truly to reflect on this before moving forward. I beg to move.
Baroness Pinnock (LD)
My Lords, I thank the noble Baroness, Lady Scott of Bybrook, for this group of amendments which seeks to exempt so-called anchor stores from high streets.
We could do with a definition of an anchor store and, indeed, of a high street, but we will come to that in a later group. High streets vary enormously from small town high streets and market town high streets to larger town centres and city centres. When there is a new retail development in a town or city centre, the phrase “anchor store” often comes into play. It is very clear in the business sector that retail works better if there is one major store, which is a sun around which the satellites of smaller shops and businesses operate. This is the description that the noble Baroness, Lady Scott, provided. However, that is just for a group of retail businesses, often in a new situation—such as an out-of-town retail park, a new retail development within a larger town centre or an existing large business in a town centre, for example a Marks & Spencer or a John Lewis store that has a multitude of operations within it. That enables other businesses to exist and thrive from the footfall that the big name store attracts.
I agree with the noble Baroness, Lady Scott, about the importance of these so-called anchor stores, although I would like to see whether the Government have a definition that can be applied. I agree with her argument that smaller businesses develop and thrive as a result of the draw of a so-called anchor store and, equally, the argument that she makes that, because anchor stores are critical to the business environment for the totality of large, medium and small businesses—retail, leisure, hospitality or otherwise, within the sector—it is important to think about whether those often large retail businesses are exempt from the higher multiplier.
I am thinking of a local town high street where the Marks & Spencer closed and moved out some years ago. It was absolutely clear that that was the focus of shoppers going to that town. Once it went, it caused the closure of a whole section of shops in that town and very difficult situation for the businesses that were left. The town will require government money for regeneration to get back on its feet. That is what happens.
So it is important that the Government, in thinking about the Bill and the impact it will have on businesses, think about the consequences of what they are doing. In a previous group, I raised the consequences for public sector-funded businesses, but this is as important for the future health of our town centres. If you take out the key store around which others, like satellites, are drawn because its business sums no longer add up, the whole area will be on a downward spiral.
I will give the Committee an example from some figures that I remember, so they may be wrong. Take John Lewis, which is a big store. It knows that much of its business will move online. I think its business plan expects 60% of its business to move online. If we put an additional cost, as would happen under the large multiplier, on the remaining 40% of its business, I expect that one of the consequences would be that a greater proportion would move out of the high street to online to reduce those costs. That is not what this Government want to happen. They have argued for the importance of the health of our town centres for all sorts of reasons, not just to support small businesses but to support the community which goes there to meet and so on.
It is important that the Government think about the unintended consequences of this rough and ready Bill because it will potentially have very rough consequences on our high streets, particularly those which depend on a big store as the holder of the rest of the businesses around it. I look forward to what the Minister says, but I hope that he does not use “tough choices” and “fair and sustainable”.
Lord Thurlow (CB)
I will briefly add a few comments. I wholeheartedly support Amendment 11 from the noble Baroness, Lady Scott, in principle. The noble Baroness, Lady Pinnock, has clearly illustrated what happens to a town centre when the anchor departs and the economic health of the shopping environment dies.
The problem we have is that of definitions. When a comprehensive town centre development is designed by developers, it contains, without fail, something called an MSU—a major space unit. That is the anchor, the John Lewis or the Marks & Spencer. When that goes, the only possible replacement, generally speaking, is a supermarket.
If the supermarket becomes the anchor of the economic health of the high street, at the back of a shopping centre, filling the space of the department store that was there before, the supermarket really has to be described as an anchor. I do not disagree with the concept, but it makes the problem one of definitions and gets back to the question of use classes, which we will perhaps be able to speak about with the Bill team at another time.
I agree with the principle of this amendment, but I think it is more complicated. We need to get to the bottom of it, but it is one of definitions.
Lord Khan of Burnley (Lab)
My Lords, these amendments seek to change the Bill to remove anchor stores from the higher multiplier. I apologise for being repetitive, but as I explained in the debates on the previous three groups of amendments, we have taken a sector-agnostic approach to the higher multiplier and not excluded any sector or type of property. This is the fairest option.
We have also ensured that the Valuation Office Agency has published data on those properties currently falling within the threshold for the higher multiplier. This shows that the impact on high street shops is very limited. I will not repeat those numbers at this time but encourage noble Lords to look at that information.
Alongside noble Lords, we of course appreciate the role anchor stores can play in the high street, but it should be acknowledged that anchor stores are often part of large retail chains that will also have a number of properties with a rateable value of below £500,000. Where retail properties’ rateable value is below £500,000, they will benefit from the lower tax rates for qualifying retail, hospitality and leisure from April 2026.
The amendment would also be difficult to operationalise and would require the Government to define the meaning of an anchor store. It would be very difficult to define these stores in the way that the noble Baroness is thinking. There are anchor stores in almost every out-of-town shopping centre and retail park, and what is an anchor store beyond a large shop?
While I understand the concerns of the noble Baroness, I do not think it follows that we should exempt anchor stores from the higher multiplier, nor do I think that this can easily be done without, in effect, removing all shops. Some very difficult decisions have been made, and we need to ensure that the system is long-standing and continues in a fair manner. I hope, therefore, that the noble Baroness, Lady Scott of Bybrook, will withdraw the amendment.
Baroness Scott of Bybrook (Con)
My Lords, I thank the noble Baroness, Lady Pinnock, the noble Lord, Lord Thurlow, and all others who have mentioned this issue throughout the afternoon. There is an important role for anchor stores. To the definition, with the greatest respect to the noble Lord, I suggest that they should ask communities and their residents what would be an anchor store in their local town centre and ask the sector to discuss that as well. As a former leader of a council for many years, and knowing many council leaders, as I do, I know that they know exactly what an anchor store at any one time would be for the size and type of the high street they are trying not only to protect but to keep being a high street for any length of time. Many leaders of councils across this country have spent many hours working with the sector to get exactly that in order to make sure that they have a good thriving and surviving high street for their local communities.
As we have said, we all agree that these stores play a crucial role in the vitality of high streets and town centres. We know that they drive footfall, support local businesses and contribute significantly to the economic and social fabric of our communities. That is why it is important that we find a definition and a way through this. Without them, many of our high streets will struggle to survive, let alone thrive. I have spoken to the sector, and these businesses will leave the high street and go out of town where it is cheaper. Not only that, but they may even go out of business and, as we are seeing, go permanently online. That will not help our high streets.
As I have said, the changes in the Bill could inadvertently harm these vital businesses and place an undue burden on them, pushing them out of our high streets. The Bill follows several other damaging decisions that businesses are having to fund. This one at the end of it could be the straw that breaks the camel’s back. Not only will it likely leave anchor stores paying higher business rates; they will also be paying increased staff costs, as we talked about earlier.
These decisions will have a cost, and if the Government continue to make them, we are worried that there will be no businesses left in the high street to tax. I urge the Minister to carefully consider the concerns raised by many noble Lords today. We just want a fair and equitable business rates system—
Baroness Scott of Bybrook (Con)
And equitable. We must not overlook the specific need, as we have all said—across parties—to protect our high streets for our communities for the future. We believe that exempting anchor stores from these changes is a measured and practical way of safeguarding the future of our town centres. I hope to have further discussions with the Minister on this before Report but, at this point, I beg leave to withdraw my amendment.
Baroness Pinnock
(a) as shops, restaurants, cafes, drinking establishments, cinemas or live music venues,(b) for assembly and leisure, or(c) as hotels, guest and boarding premises or self-catering accommodation.”;”Member’s explanatory statement
This amendment is intended to probe what hereditaments will be included in the definition of retail, hospitality or leisure.
Baroness Pinnock (LD)
My Lords, Amendments 16, 34 and 42 in my name and that of my noble friend Lord Fox seek to provide a much-needed definition for retail, hospitality and leisure businesses, which is sadly missing from the Bill. We keep being told by the Minister that one will be provided, but here is one that he might like to use.
These three amendments propose that the hereditaments defined as retail, hospitality and leisure should be
“shops, restaurants, cafes, drinking establishments, cinemas or live music venues”,
and those used
“for assembly and leisure, or … as hotels, guest and boarding premises or self-catering accommodation”.
We believe that that probably covers the gamut of RHL hereditaments and hope that the Minister will agree that it is an inclusive list. We hope that he will accept it so that the Treasury does not have to define one.
We have to understand that it is really important to local businesses to have certainty about their costs. This aspect of the Bill has not been touched on yet today. I speak to businesses in my locality, and they are concerned about potential increases in their costs. They need to plan ahead—not just one year but a couple of years at least, and, for cafés or restaurants, even further to be able to plan business costs and make sure that they end the day on the right side of the red line.
It is not helpful to the business community that it is not clear what the definition will be. If, as some of us suspect, it is the same definition as was provided under the rate relief over Covid, then let us understand that. If it will exclude some businesses included in that rate relief, that needs to be clear as well. Time is of the essence here, because the Covid rate relief, as we have heard, is declining considerably and businesses need to know how that will impact their bottom line.
That is the purpose of the first three amendments in our names—to get some certainty so that businesses, particularly small businesses, which this element of the Bill focuses on, understand what additional costs are coming their way. We still do not know, unless the Minister tells us, the consequence of, on the one hand, reducing the Covid relief and, on the other, the business rate changes. That is important. A few thousand pounds here and there can make the difference for a small business between survival and closure, so it is important for this Committee and for businesses to understand.
Amendment 51 in my name and that of my noble friend Lord Fox is slightly different. It tries to put some definition around these fabled “high streets”. The Government have said that they wish to protect high streets and lower the burden of costs on them while increasing the costs for big distribution warehouses. With that I concur, but it is important that we understand what is meant by “high streets”.
In the National Planning Policy Framework, there is a requirement to define what a high street or, more appropriately, town centre should be. When local planning authorities produce their local plans for a strategic approach to planning in their area, they are required to put a boundary around their town centres, because they often have particular importance for grant funding, transport and the consequences of all sorts of operations.
So there is a way of defining a high street or a town centre that encompasses the so-called high street. By “high street”, I believe the Government mean the essential businesses in a town centre. There is an ability for local authorities to use the NPPF to provide that definition. The Government could then enable all businesses within the boundary of a town centre to have a reduced multiplier, which would enable a thriving and prosperous town centre. That would benefit not only those businesses that operate within the town centre but the community that they serve.
Lord Jamieson (Con)
My Lords, I will speak to the amendments in this group in the name of the noble Baroness, Lady Pinnock, all of which address the lack of detail provided by the Government on their intentions with this Bill.
Amendments 16, 34 and 42 probe what types of hereditaments will be included in the definition of retail, hospitality and leisure. I am inclined to assume that the definition will remain the same as that which we used to define the requirements for the retail, hospitality and leisure relief scheme, and these are indeed the criteria listed in the noble Baroness’s amendments.
These may be unnecessary amendments, given that eligibility for retail, hospitality and leisure relief is already set out in the Government’s guidance for the scheme. However, we discussed our concerns about the power of the Treasury to define this in an earlier group. Crucially, businesses that are already worried about this Government’s plans need certainty and to be able to plan for the future. The Minister said that they need certainty; would not putting a clear definition in the Bill be a good way of delivering that? I will listen with interest to the Minister’s response, as we are likely to return to this part of the Bill on Report.
Amendment 51 seeks to probe the intended application of the Bill in relation to the National Planning Policy Framework. I certainly understand the noble Baroness’s confusion because, in the Labour manifesto, the Government promised reform of the business rates system and explained that such reform would include a larger burden on online businesses that operate from out-of-town distribution warehouses. Contrary to those statements, the Bill will actually have negative consequences on the high street. The noble Baroness is right to question whether the Government intended the higher multiplier to affect the high street in the way it will or whether, despite knowing what the impact would be, they chose to proceed anyway. I look forward to the Minister’s response and hope that there will be further clarity from him on the application of the Bill.
Lord de Clifford (CB)
I rise quickly to support Amendments 16, 34 and 42 tabled by the noble Baroness, Lady Pinnock, and to reiterate my point about clarity for businesses. Businesses want to plan two or three years ahead but cannot. We have a limbo at the moment for about 18 months to two years, and this Bill leaves us in that position. I ask the Minister to go back to the Government and ask for some clarification—that is, some sorts of figures so that businesses can plan for the future.
Lord Khan of Burnley (Lab)
My Lords, I thank the noble Baroness, Lady Pinnock, and the noble Lord, Lord Fox, for their Amendments 16, 34, 42 and 51. I understand the intention of these amendments is to understand further, first, what hereditaments will be included in the definition of qualifying retail, hospitality and leisure properties; and, secondly, the intended application of the new multipliers to high streets.
The definition of qualifying retail, hospitality and leisure properties will be set out via secondary legislation later this year, as I repeated earlier. However, I can confirm that the Government’s intention is for this broadly to follow the definition that is used for the current RHL relief; I note that the noble Lord and the noble Baroness are familiar with this definition, as their amendment draws on the guidance published by the Government. When introduced from 2026-27, the new multipliers that this Bill makes provision for will apply to all relevant hereditaments, regardless of their geographical location.
It is the Government’s intention to introduce two lower RHL multipliers: one for RHL properties with a rateable value of between £51,000 and £499,999; and another one for RHL properties with a rateable value of below £51,000. All qualifying retail, hospitality and leisure properties will be eligible for these new multipliers. This approach will best ensure that support is targeted towards RHL businesses based on the high street while working within the existing business rates architecture. We are moving from a stopgap, ad hoc, year-to-year relief scheme to a permanent lower multiplier that provides greater certainty for business.
It is also the Government’s intention to introduce a higher multiplier for all properties with a rateable value of £500,000 and above—a point that I have made previously. Again, this will affect all properties that meet that criterion, regardless of their geographical location. It is the Government’s view that this is the fairest approach and that trying to restrict the application of the different multipliers based on geography would create unintended consequences and would likely drive perverse incentives.
Lord Fox (LD)
I thank the Minister for introducing the use of the relief definitions. If I have got this wrong, I am very happy for him to tell me so, but my understanding is that the bottom level of below £49,000, I think, were not paying business rates at all. Is that correct? Will they now be classified along with everyone else and pay business rates with the appropriate reduction put on to them, in which case they will go from paying no rates to some—albeit less than the full rate, as we would have seen it?
Lord Khan of Burnley (Lab)
Just to clarify, the noble Lord, Lord Fox, has got it wrong because the zero, as in no business rates, is for rateable values—£12,000 in particular—and it is then tapered, so the relief decreases as it goes to £15,000.
Lord Fox (LD)
Do they now come into the system or do they continue to have a zero rate under the proposals of this Bill?
Lord Khan of Burnley (Lab)
Just to clarify for noble Lords, there will be no change to small business rate relief—that is not changing—so they will still pay tax.
It is the Government’s view that this is the fairest approach and that trying to restrict the application of the different multipliers based on geography would create unintended consequences and would likely drive perverse incentives. It is also extremely difficult to draw a line around a town centre. I note that the noble Baroness, Lady Pinnock, made a suggestion around using the understanding of the term as per the National Planning Policy Framework, but that framework does not set a definition of a town centre. It should be noted that the framework suggests those centres identified in development plans, but this does not represent a requirement that all centres are identified. We also know that many areas do not have up-to-date development plans and that, therefore, centres that are identified may not reflect current realities.
Such an approach would essentially give local planning authorities the power to determine where multipliers should apply and could restrict their application from smaller retail centres that might be essential to particular neighbourhoods. Furthermore, it could result in the higher multiplier not being able to be applied to large warehouses used by online businesses or other properties with a rateable value of £500,000 or above if they are not located in a town centre, as these would fall outside the definition of a town centre. I do not think that is the noble Lords’ intention, but it is important to clarify that point. I hope that my remarks have helped to clarify the areas of interest and provided reassurance on the Government’s policy in this space. I respectfully ask the noble Baroness, Lady Pinnock, to withdraw her amendment.
Baroness Pinnock (LD)
I thank the Minister. I thank the noble Lords, Lord Jamieson and Lord de Clifford, for their supportive comments, as the Minister was not so helpful. Businesses require clarity and certainty. To tell us that secondary legislation will be needed to set out the definition of RHL means that clarity and certainty will be pushed further down the line. The Minister shakes his head, but I wrote down what he said: secondary legislation will set out the definitions. By definition, that will be after this Bill has gone through its processes.
Lord Khan of Burnley (Lab)
My Lords, in the very same sentence I said:
“However, I can confirm that the Government’s intention is for this to broadly follow the definition that is used for the current RHL”.
Baroness Pinnock (LD)
In which case, I apologise to the Minister. I must have missed that bit of his explanation. We have been saying right from the start that Covid relief would be the definition for RHL, and that is the clarity people need. I hope the Government will inform businesses that, if they currently get Covid relief, they will qualify under this Bill. Equally, we will be pushing the Government to expand that definition. It is not as inclusive as some of us think it should be if the aim is for small businesses to thrive or have reduced costs, as opposed to distribution warehouses and online retailers.
On the last amendment, I disagree with the Minister because the National Planning Policy Framework—which I have read—sets out what a town centre is. Local planning authorities have the responsibility to form a local plan. The Minister is right: far too many local planning authorities have failed in that responsibility. However, the Government have said that they expect local planning authorities to produce a local plan. In that case, all local planning authorities would produce a local plan in which they can define what is included within the boundaries of several town centres within their purview. That is really important because lots of issues follow from being within the purview of a town centre.
I hope that the Minister will perhaps go away and think with his officials about whether this could be used as a definition for businesses within the purview that will be set out in the local plan so that this Bill— the Government have stated that its aim is to help the so-called high street, which, as I have said, will be the town centre—will help businesses to thrive despite the growing competition that they face from online retailers, which, by the very nature of business rates, pay much less than those businesses do in town centres even after this multiplier is applied. With that plea to the Minister, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, this will be the last group today.
Amendment 21
Baroness Scott of Bybrook
“(9D) In sub-paragraph (9B) the £500,000 threshold must be increased on 1 April each year by at least the CPI.(9E) The CPI is the Consumer Price Index percentage recorded by the Office for National Statistics for September of the financial year preceding the relevant year concerned.”Member’s explanatory statement
This amendment, along with others in the name of Baroness Scott of Bybrook, seeks to increase the £500,000 threshold with inflation to ensure businesses don’t get drawn into the higher rate.
Baroness Scott of Bybrook (Con)
My Lords, Amendments 21, 40 and 44 in this group seek to introduce a statutory index-linked uplift in the threshold for the higher multiplier in line with inflation. These specific amendments relate to the level of the threshold in future years, so I am grateful for this opportunity to have a brief and specific debate on the threshold.
We have already probed the Government over their arbitrary threshold of £500,000, but I hope that, in response to this group, the Minister will be able to explain the Government’s current plans for uprating the threshold in future. There are no measures in the Bill to prevent more businesses being caught by this threshold over time. We are told that it is not the Government’s intention for smaller high street businesses to be hit by the higher multiplier, but inflation and a fixed threshold mean that that will be an inevitable result of this policy. I remind the Committee at this point that, thanks to the Government’s Budget measures, inflation rose by 3% in the 12 months to January 2025, up from 2.5% in the 12 months to December 2024. As the hereditament valuations rise over time, more and more businesses will be paying higher business rates.
If the Minister feels that the CPI is not the correct index to tie this threshold to, we are open to discussions about that. Our goal here is to probe the Government’s willingness to explore increases in the thresholds going forward to protect small businesses that should never have been caught by the higher multiplier threshold from facing higher taxes by the back door. Can the Minister confirm that it is not the Government’s intention for smaller businesses to be hit by these higher taxes? If the Government do not intend to hit smaller businesses with higher taxes, can the Minister give us an undertaking to look at the threshold and consider including in this Bill a measure that would deliver either an index-linked uprating of the threshold or, as a minimum, a power for Ministers to uprate the threshold without having to bring primary legislation before the House again? We are generally cautious of new regulatory powers but, provided that a power was limited to uprating and excluded the possibility of lowering the threshold, that might be a way forward. I beg to move.
Lord Fox (LD)
My Lords, I think this might be the last group today; I would say that we have done very well to get this far. I shall speak to these four amendments. The first three make an assumption that the £500,000 threshold was right in the first place. Of course, that is really addressed by the fourth amendment, so I am going to speak to it. It is right that there should be some form of uprating, but I am more intrigued about how the figure of £500,000 was alighted on in the first place.
If we were looking at something that was broadly financially neutral, I do not know how we would know, because we do not know how the flexible upper rate will be applied, so we do not know how much money that will raise. We therefore do not know whether £500,000 was the right number to make it financially neutral. Was it chosen for a business reason? Are businesses of that size particular sorts of business that we need to factor in, in a different way, or was there some other sociological plan involved in choosing £500,000? My big question for the Minister is who chose the number. Was it DHCLG or the Treasury?
Lord Fox (LD)
Whatever it is called these days—they keep changing it, and I never normally address this particular crowd. Was it the Minister’s ministry or was it the Treasury? If it was the Treasury, I rather think we should have a Treasury Minister here to answer the question of why it was a £500,000 limit, because it seems to me that it is a very round, arbitrary number. It would have been more convincing had it been £550,000; it might have looked like some thought had gone into it. This looks like a dart-throwing exercise.
So can the Minister explain what was behind the number? Is it trying to balance the money raised? If so, how can you know when your top rate is a top rate and is not necessarily applied? If it is the nature of a business, what is it about the nature of the business? If it is from an analysis of every single £500,000 business, what criteria were used to make that analysis? In other words, where did it come from?
Lord Khan of Burnley (Lab)
My Lords, Amendments 21, 40 and 44 concern the rateable value threshold above which the higher multiplier may apply. This is set in the Bill at no less than £500,000, as we have heard repeatedly in contributions by noble Lords. The Bill allows the Government to set a higher threshold through regulations if they wish, but the amendments would require this threshold to be increased annually in line with CPI.
Alongside the amendments, the noble Baroness, Lady Scott of Bybrook, has given notice of her intention to oppose Clause 3 standing part of the Bill. It would therefore be appropriate at this point if I set out why Clause 3 should stand part.
The noble Baroness, Lady Scott of Bybrook, raises a reasonable question as to whether, and if so how, the £500,000 threshold should change over time and other noble Lords have also raised this point. Of course, we would expect that, over time, the value of properties and therefore their rateable values will increase as the economy grows. As these rateable values grow, the current threshold in the Bill of £500,000 will, relatively speaking, be smaller and more properties may be drawn into that category. That is the issue that the noble Baroness is probing with these amendments.
However, I do not think these amendments are the answer to that issue. First, and perhaps most importantly, rateable values will not increase annually in line with inflation or with any other measure of property value or the economy. Rateable values are set every three years at revaluations, and between those revaluations will not change other than for matters such as physical changes to the property.
The Government have set out that our intention for the 2026 rating lists is for the threshold for the higher multiplier to be set at a £500,000 rateable value. The Government consider that this will best ensure that sufficient revenue is raised to provide for a meaningful level of support for retail, hospitality and leisure properties, and will do so in an objectively equitable way.
The 2026 rating list will last for three years, and those rateable values will not increase over that period, other than if, as I have said before, the property is expanded or improved, for example. By extension, the 2029 revaluation will be the next logical moment to consider whether the £500,000 threshold remains the appropriate minimum for the new higher multiplier.
In approaching these considerations, the Government will need to examine how rateable values have changed at the revaluation but also what support is to be provided to retail, hospitality and leisure properties and, consequently, how much revenue is needed to be raised from the higher multiplier.
I hope the noble Baroness will appreciate that there are several factors the Government will need to consider and balance, beyond just the changes in rateable value. More broadly, as the noble Baroness will be aware, the Government keep all taxes under review, including rates and thresholds. As such, I can assure the Committee that in relation to the proposed amendment, the Government will, as a matter of course, actively consider whether the £500,000 threshold in the relevant regulations should be amended at the 2029 revaluation, as they approach that revaluation.
The noble Lord, Lord Fox, asked whether MHCLG or the Treasury decided. It was the Government who decided. As much as I love darts, it definitely was not a dart-throwing exercise.
I will now expand further on Clause 3 so that, I hope, noble Lords can agree that it should stand part of the Bill. We have discussed several amendments in relation to Clause 3 today, so I shall try to keep my remarks to the point and not go over previously covered ground too much.
Clause 3 is concerned with how we will determine to which hereditaments those multipliers should apply. It is split into three main parts, concerning occupied hereditaments in Clause 3(2), unoccupied hereditaments in Clause 3(3), and hereditaments on the central rating list in Clause 3(4). Properties on the central list are typically utility networks spanning many local authority areas, such as the gas, electricity and water networks. Each of these parts of Clause 3 are essentially identical, so to save the Committee from repetition, I will explain the provisions on occupied hereditaments in Clause 3(2) only.
The most important part of Clause 3(2) is the small amendment made by Clause 3(2)(a) to existing powers in the Local Government Finance Act 1988. Under those existing powers, the Treasury already has the ability to determine in regulations which multiplier applies to which property. Those powers, in respect of occupied properties, are in paragraph 10(9) and 10(10) of Schedule 4ZA to the 1988 Act. Clause 3(2)(a) amends that part of the 1988 Act to extend those powers to cover also the new additional multipliers. This means that the Treasury will be able to determine by regulations which properties pay on which multiplier.
As with Clause 1, we have included in Clause 3 safeguards as to how the Treasury may use these powers. These limit the higher multipliers to hereditaments with a rateable value of £500,000 or more and limit the lower multipliers to only qualifying retail, hospitality and leisure hereditaments.
Finally on Clause 3, the existing powers for determining the application of the multiplier allow the Treasury to do that by reference to a list of factors found in paragraph 10(10) of Schedule 4ZA to the 1988 Act. This is a non-exhaustive list that includes factors such as its rateable value, location or use. Clause 3(2)(c) expressly gives the Treasury the scope also to determine the application of the multipliers by reference to the description which the Valuation Office Agency puts in the rating list.
I hope that this further information provides the reassurance and clarity needed for the noble Baroness to withdraw her amendment and agree that Clause 3 should stand part of the Bill.
Baroness Scott of Bybrook (Con)
My Lords, I thank the noble Lord for speaking in this debate. He actually brought today’s debate right back to the beginning: where did the £500,000 figure come from? If we could get that from the Minister, it would be very useful for our debates as we enter Report.
The answer to whether there will be any further uplifts, is, I understand, the revaluation, which is in three years, but three years could go on. I go back to the difficulty that this makes for businesses to plan when they know they are going to hit that cliff edge of £500,000 and that their business rates are going to go up considerably. I go back to the example of my noble friend Lord Jamieson, who gave the example of the health centre that wants to build an extension, which could possibly move it across; the health centre would need to think very seriously about doing that extension, and this will happen across all investment in different types of businesses, which I think is worrying.
This is something that we could resolve together by a relatively straightforward amendment to the Bill, and I hope that the Government will do the right thing in protecting these smaller businesses from being hit with higher business rates inappropriately in the future. But, at this point, I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)
My Lords, well done—I think we have finished just before the vote.
Introduction: Baroness Caine of Kentish Town
Royal Assent
Monday 24th February 2025
(1 day, 10 hours ago)
Lords ChamberRead Hansard Text Amendment Paper: Commons Consideration of Lords Message as at 11 February 2025 - (11 Feb 2025)
Emergency Service Network Programme
(1 day, 10 hours ago)
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Lord Hogan-Howe
To ask His Majesty’s Government what progress has been made in delivering the Emergency Service Network programme.
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
My Lords, in December 2024, the Home Office awarded the user service contract for the emergency service network to IBM and its partners. The programme’s attention is now on producing a plan with our partners, focusing on mobilisation and delivery of key capabilities to deliver the emergency service network. Programme delivery dates with milestones will be available in the spring.
Lord Hogan-Howe (CB)
My Lords, I thank the Minister for that Answer, and I declare my interests as in the register. Members may not know this, but this is essentially about moving the police emergency services, the fire brigade and the ambulance service from a radio network to a mobile phone network. That should have been delivered in 2017, but here we are in 2025 and we do not yet have an implementation date. The initial cost of £2 billion is now in excess of £12 billion. I wonder whether the time has come for a radical new approach. Instead of pursuing the present idea, which was a good one, of having the data and radio system on a mobile phone network, we could pursue those two avenues separately, so that we make progress and do not waste more money on a programme that has struggled to make any progress.
Lord Hanson of Flint (Lab)
I am grateful to the noble Lord, who will be aware that I can be responsible only for activity post 4 July 2024. There was significant time and money overspend under the previous Government. However, he is right that the service will provide for 300,000 users across Britain, 107 emergency services, 44 police forces, 50 fire and rescue services and 13 ambulance trusts, as well as 300 other organisations that use Airwave for this important purpose. I hear what he says, but we have set a course of action and a direction of travel. He will no doubt monitor that, and I want to ensure that the switchover from Airwave to the new emergency service network happens as quickly as possible. As he knows, it will take some time to bed in following the ending of the previous contract and the beginning of this contract. I hope that the House will bear with me on that delivery in due course.
Lord Vaizey of Didcot (Con)
My Lords, this saga goes back so far that I was the telecoms Minister when this was first being discussed, in 2015. I am glad that progress has been made, but with the greatest respect to the noble Lord, setting a new course of action at this late stage would not necessarily be the right thing to do. The fundamental point is that the Home Office should not be building or contracting a mobile phone network, and I am glad that BT/EE is in charge of it. What worried me was reading that the Home Office itself is planning to build 300 masts. How does this programme correspond with the DCMS’s programme for a rural network shared between the mobile operators? It seems that the left hand and the right hand may each not know what the other is doing.
Lord Hanson of Flint (Lab)
Given the overspend, I do not know whether the noble Lord was the left hand or the right hand in the previous Government. But whichever he was, I declare an interest: I was the Police Minister in 2009-10, and this had not started then. The delay, obfuscation, overspend and costs happened entirely on the previous Government’s watch. However, let us put that to one side. The key thing is ensuring that our police forces, fire services and others have appropriate services. The Home Office will provide some masts because there are some security implications, which we need to examine and deliver on. I hope that I can reassure the noble Lord, and the noble Lord, Lord Hogan-Howe, that the Home Office will have a grip on this and will deliver, and that it has a three to five-year plan to get the basics in place, with a handover as soon as possible.
Lord Harris of Haringey (Lab)
My Lords, I refer to my policing interests as listed in the register. I am pleased that the Minister acknowledges the grotesque excess expenditure and delays that are clearly the fault of the previous Government. What consideration is being given to the resilience implications of the emergency services using a mobile phone network? At the moment, if the Airwave network goes down, the police and other emergency services can use mobile phones to communicate with each other. If something affects the mobile phone network, what will be plan B?
Lord Hanson of Flint (Lab)
Plan B is part of plan A, which is also to provide the 292 4G mobile phone sites that the noble Lord mentioned in his question. We have picked this up. We have made a decision to terminate the previous contract; we had a court case to do that. We are now putting in place a revised contract—we have to exit the former contract—and resilience will be built in to make sure that this is the most important service that can be provided, because this is how police, fire and other emergency services communicate with each other in times of difficulty. It is an absolute priority for the Home Office to get this right, and I hope that we will do so in the course of the next few years.
Baroness Doocey (LD)
My Lords, I keep hearing that the Government want us to be leaders in AI, but it is very difficult to work out how this can be when the Government have not dealt with the fact that the police are being run as an analogue operation in a digital age. It almost beggars belief that all 43 police forces in the UK use different IT systems, the majority of which do not even speak to each other.
We have just heard about the 51 year-old police national computer; that is never going to be sorted in the next, goodness knows, five to 10 years, and it stores only very basic biometric data. Many of the drones the police are using are clapped out and need to be replaced. When are the Government going to wake up to the major problem the police have got with technology and actually provide the funds to deal with this once and for all?
Lord Hanson of Flint (Lab)
The noble Baroness makes an extremely valid point. There are 44 police forces in total—43 plus the British Transport Police—and they have a range of different technological methods of gathering information and working. Obviously, from a taxpayer efficiency and a security point of view, we want to make sure that we get the best deal. Part of the Government’s efficiency drive will be to look at how we can work with police forces, which are independent, to do that downstream. The change we have made from the previous Government’s position will save the taxpayer £200 million per year when up and running. That is a more efficient way of getting a better service for the taxpayer.
Lord Cameron of Lochiel (Con)
His Majesty’s Opposition look forward to monitoring this programme according to the timescale set out today. What assurances can the Government give that the emergency service network will ever deliver what it set out to do, especially in light of the ongoing vast expenditure of the programme?
Lord Hanson of Flint (Lab)
Let me give the noble Lord this assurance: I am not sure how we will monitor it, but it will be better than the previous Government’s monitoring. The previous Government’s overspend and the delays—as mentioned by the noble Lord, Lord Hogan-Howe—were all, dare I say it, on his watch. We signed a contract in December and it is a significant amount of taxpayers’ money—potentially £19.2 billion over a 28 year-period. The Home Office, with colleagues, will monitor the introduction, delivery and efficiency. As we do so, and as we have done with the previous contract that his Government signed, if it becomes inefficient, we will take action. We are now in discussions with Airwave and Motorola to find recompense for the taxpayer for the overspend that was inflicted on his watch.
Lord Stirrup (CB)
Has the Minster read the latest leader in the Economist, which sets out the irrefutable case for the substantial rearmament of this country and its western European neighbours if we are to provide adequately for the security of our people? Does he accept that that is a question not just of pure military power but of national resilience, in which emergency communications play a crucial role? Further to the question from the noble Lord, Lord Harris of Haringey, can the Minister assure the House that this new system, whenever it comes in, will be fit for purpose in a potentially hostile environment?
Lord Hanson of Flint (Lab)
The noble and gallant Lord is absolutely right. Any future Airwave system has to be resilient to potential hostile actor threats and attacks. That is built into the system, and it is something we are cognisant of. The security element of that is extremely important not just in an emergency services context but in the context of any other form of communication. The noble and gallant Lord will know that there are hostile actors who seek to do harm to the United Kingdom. Our job is to stand up to them and to provide resilience accordingly.
Domestic Abusers: Reoffending
(1 day, 10 hours ago)
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The Lord Bishop of Gloucester
To ask His Majesty’s Government what programmes and interventions are used to reduce re-offending among domestic abusers in the community; and what are the re-offending rates of those who participate.
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
The domestic abuse and stalking perpetrator intervention fund currently provides funding to 27 police and crime commissioners across England and Wales to commission domestic abuse and stalking perpetrator intervention programmes locally. Although evaluations are currently limited, early evidence about the ability of perpetrator interventions to reduce reoffending is promising. An independent evaluation of the Drive project showed that the number of Drive service users using physical abuse reduced by 82% and that the risk to the victim was reduced in 82% of cases. Further evaluation of a wide range of interventions is needed to better understand reoffending rates and what works in stopping perpetrators.
The Lord Bishop of Gloucester
I thank the Minister for his Answer. We know that a whole-community approach is required, such as the White Ribbon campaign, which focuses on engaging men and boys in tackling harmful behaviour. Likewise, the Hollie Gazzard Trust helps reduce domestic violence through promoting healthy relationships with training programmes in schools, colleges and businesses. This includes powerful bystander intervention training, which enables people to know why they should intervene and gives them practical techniques to do so. So what are the Government doing to promote and evaluate bystander intervention training?
Lord Hanson of Flint (Lab)
The right reverend Prelate makes an extremely important point. It is important that we do not just have interventions on perpetrators but also that those individuals who can help, intervene and support victims are both supported in how they can make those interventions and have support and training generally. She will, I hope, welcome the fact that a new violence against women and girls strategy—one of the Government’s “plan for change” manifesto commitments—will be published later this year. Prevention and education are fundamental to the Government’s approach. I will certainly take back her comments to the Minister responsible, Jess Phillips, who will be developing the strategy, and we will look at it: obviously, it will be published for this House to interrogate in due course.
Baroness Royall of Blaisdon (Lab)
My Lords, the right reverend Prelate mentioned the importance of schools and of teaching young people about healthy relationships. She also mentioned the Hollie Gazzard Trust and various other charities that work in this area. But I wonder what is happening up and down the country to ensure that there are not just pockets of education but that this education is widespread among young people in our communities.
Lord Hanson of Flint (Lab)
My noble friend hits on an important point. Domestic violence does not just happen when an individual reaches a certain age; it is inbuilt and ingrained over a long period of time. Therefore, in order to prevent domestic violence downstream, the way young people in primary and secondary schools and beyond are educated in mutual respect and understanding, and in non-violence, is extremely important. I would hope that my colleagues at the Department for Education, and indeed in the devolved Administrations in Wales, Scotland and Northern Ireland, recognise that need for early intervention and resilience building to ensure that we do not create the perpetrators of the future who will then need the required investment and intervention I talked about in my earlier answers.
Baroness Doocey (LD)
My Lords, the Domestic Abuse Commissioner found that 60% of domestic abuse survivors wanted their perpetrator to attend a behavioural change programme, but that only 7% could do so because of the lack of availability. We do not have enough programmes and we do not know which programmes work best. Although some studies, such as Project Mirabal and the Drive programme, show promising results, the programme evaluation overall has been painfully slow. What steps are the Government taking to accelerate it?
Lord Hanson of Flint (Lab)
As I mentioned in my original answer, the Government have put £20.5 million into perpetrator intervention programmes currently, and those are under evaluation as we speak. The evaluations are slow by their very nature and, again, I can only answer for post 4 July 2024. What we are trying to do is examine, with the violence against women and girls strategy, what works effectively and what interventions we can take forward. Therefore, both the points that the noble Baroness made and other considerations of intervention—and how we evaluate that intervention to make sure it has a real impact and give comfort to victims primarily—are important issues. We will be examining that during the development of the violence against women and girls strategy.
Lord Cameron of Lochiel (Con)
My Lords, everyone’s thoughts will be with those who have been victims of domestic abuse, and supporting such victims is rightly of paramount importance. Given that the Government have released domestic abusers early as part of their efforts to manage prison capacity, can the Minister explain what assessment has been made of the risk that this policy poses to victims?
Lord Hanson of Flint (Lab)
I hope the noble Lord will know that offences have been excluded from the SDS40 early release scheme. Those include sex offences, irrespective of sentence length; serious violent offenders with a sentence of four years of more; and specific offences linked to domestic violence, irrespective of sentence length, including stalking, coercive controlling behaviour and non-fatal strangulation. So the noble Lord’s basic premise is, I am afraid to say to the House, wrong. Domestic violence perpetrators are not being included in the programme he referred to.
Lord Laming (CB)
My Lords, the Minister will know that, in a high proportion of households in which there is domestic violence, there are also very vulnerable young children. Could the Minister assure the House that the services that are tackling domestic violence will always give a high priority to the protection of children who are caught up in these very unhappy and destructive experiences?
Lord Hanson of Flint (Lab)
Children should be central, because they will have witnessed domestic violence and potentially had their outlook on life, towards both their mother and father, impacted by that domestic violence, and will remain scarred by that. So it is extremely important that, as well as intervening on perpetrators, be they male or indeed female, we also have to ensure that we look at the family as a whole and what is best for individuals, particularly the children who have been impacted. I cannot give the noble Lord specific comfort today but, again, if he looks at the violence against women and girls strategy, published in due course, he will I hope see a range of mechanisms there to ensure we take a whole-family approach to this issue.
Baroness McIntosh of Hudnall (Lab)
My Lords, to go back to the original question from the right reverend Prelate about bystander intervention, those of us who travel on public transport in London will be aware that there is a programme currently in operation offering very specific advice to travellers on how to intervene in circumstances where they witness the kind of abuse we are talking about. I wonder whether my noble friend has any information from Transport for London on how successful that programme is and what impact it is having.
Lord Hanson of Flint (Lab)
I cannot specifically say today that I have that information for my noble friend, but I will certainly investigate. My noble friend Lord Hendy, the Transport Minister, is sat next to me on the Bench today and will have heard the question. We will negotiate and discuss between us whether there are lessons to be learned and how that programme is of value. I will look into that for my noble friend.
Baroness Burt of Solihull (LD)
It seems to me that victims, even when the perpetrators have been caught and convicted, feel that they are the ones responsible for keeping themselves safe from the behaviour of perpetrators. There seems so little evidence of successful programmes. Would the Minister agree with me that, despite the £20 million-odd that he has already talked about, we need to invest more in research for programmes that actually work.
Lord Hanson of Flint (Lab)
We do need to ensure that the programmes work. I hope I can reassure the noble Baroness that in 2025-26 we in the Home Office are providing an additional £90 million to police and crime commissioners to look at the very issue that she has mentioned, through the domestic abuse and stalking perpetrator intervention fund. This will be not just for when someone is convicted of a domestic violence offence but when they are released, when there may be a need for greater support for the victim to make sure that they do not feel intimidated, stalked or damaged by the relationship that has already caused them damage.
Baroness Blower (Lab)
My Lords, we have already heard about the centrality of education to make sure that we are making a difference on violence against women and girls. Can my noble friend the Minister say whether in the other place the Department for Education is working closely with our honourable friend Jess Phillips to ensure that more teachers are trained to be clear about the effects of adverse childhood experiences on the young people they see day in and day out?
Lord Hanson of Flint (Lab)
I can assure my noble friend that the Government’s violence against women and girls strategy is a cross-government strategy. When it is published, it will include contributions from a range of government departments, not least the Department for Education.
County Lines Drug Trafficking
(1 day, 10 hours ago)
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Lord Murray of Blidworth
To ask His Majesty’s Government what steps they are taking to tackle ‘county lines’ drug trafficking.
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
The Government’s county lines programme is targeting exploitative drug-dealing gangs while breaking the organised crime groups behind this trade. The programme has closed more than 400 drug-dealing lines since July 2024 alone. The Government are committed to halving knife crime in the next decade and to tackling the violent gangs who lure children into crime. We will be introducing a new offence of criminal exploitation of children in the crime and policing Bill, which will be published very shortly.
Lord Murray of Blidworth (Con)
My Lords, I admire the Minister’s indefatigability in addressing three of noble Lords’ Oral Questions today and I thank him for his Answer. An estimated 14,000 children are at risk of child criminal exploitation as a result of county lines drug trafficking. In 2022, it was reported that there had been 8,000 arrests since the introduction of the county lines programme in 2019; that is an average of 2,600 per year. In the last nine months, Home Office statistics appear to show that there have been around only 500 arrests. Why is this, and what are the Minister and his department planning to do about it?
Lord Hanson of Flint (Lab)
The noble Lord will know that I can answer only for the period from July 2024 to September 2024, which are the latest figures. These figures show that 400 deal lines were closed, more than 200 dealers were arrested and charged, 500 further arrests were made, and there were 800 safeguarding referrals for children and vulnerable people. He asked what we can do in particular—yes, roughly 14,500 children have been impacted by county lines, and first and foremost we are looking at how we can support those children.
Very shortly—in fact, tomorrow—the new offence of criminal exploitation of children will be introduced in the police and crime Bill. I look forward to the noble Lord’s support on that. It will mean that we can go after the gangs who are luring young people into violence and crime, and we will have an additional penalty for individuals who exploit and damage children as a result. So there are short-term interventions to be made, but there are long-term measures too.
I would also say to the noble Lord that the additional 13,000 neighbourhood police officers will be an extremely important way of gathering intelligence, putting police boots on the ground and putting the fear of God into those people who are undertaking county lines activity.
Baroness Whitaker (Lab)
I take it that my noble friend the Minister is aware that a fair number of children who are recruited into county lines have been excluded from school. In that connection, what liaison does his department have with the Department for Education to reduce the number of children who have nothing else to do when they are kicked out of school?
Lord Hanson of Flint (Lab)
It is right that we should put children at the focus of county line activity. By that, I mean preventing children from being involved in county lines, not criminalising those children who are involved in county lines but seeing them, as I think my noble friend indicated, as victims who need our support. I will take away her contribution and discuss it with my right honourable friend the Police Minister, see what steps are being taken to do that, and contact my noble friend accordingly.
Baroness Doocey (LD)
My Lords, more than 27,000 suspected drug suppliers are either on bail or released under investigation due to forensic and digital backlogs. One in five of those cases has been going on for more than a year, and currently there are more than 25,000 digital devices waiting to be examined. While a government funding boost is always welcome, what is being done specifically to address the lack of regional and national co-ordination and the insufficient numbers of trained forensic personnel?
Lord Hanson of Flint (Lab)
The noble Baroness makes a valid point, and I will start from that premise. The Government have put an extra £1.1 billion into police forces with the police settlement that was approved by the House of Commons just a few weeks ago, and that is providing a range of functions. It is for police forces, chief constables and police and crime commissioners to determine the use of that resource locally, but she makes a valuable point about co-ordination and central management, which I will continue to reflect on because we need to ensure that there is not a backlog. The amount of digital material we have on our phones now—Twitter contents, phone calls, texts, Facebook messages and everything else—means that when someone is arrested there is a giant amount of digital information, and that is growing daily and monthly. It is important that we focus in on getting the right digital information to ensure convictions and drive up the conviction rate from the figure that I mentioned for between July and September last year, and that means tackling the backlog that the noble Baroness has rightly mentioned.
Lord Laming (CB)
My Lords, the Minister will know that those who conduct this awful business often seek out the most vulnerable children in the area, then supply them with drugs and get them completely dependent on them so they will then distribute these drugs around the country. Will the Minister assure the House that the Home Office and the services that are provided will do all they can to remind local authorities of their child protection responsibilities? The child and its welfare should be of paramount importance.
Lord Hanson of Flint (Lab)
The noble Lord is right that the child should be central, and I will take away what he said today. I hope I can reassure him that the new offence we are introducing tomorrow of criminal exploitation of children will mean that there is another mechanism to hold to account those criminals who seek to use vulnerable children to undertake their criminal activity. When that comes to this House, I hope it has widespread support.
Lord Cameron of Lochiel (Con)
My Lords, the Minister has mentioned this already, but can he outline what progress the Government have made towards fulfilling their manifesto commitment to recruit additional neighbourhood police and community support officers? Does he agree that tackling this type of drug trafficking requires not just tougher enforcement but ensuring sufficient police numbers on the ground?
Lord Hanson of Flint (Lab)
I will help the noble Lord, I hope, by saying that the Government announced £1.1 billion more this financial year than the police budget was in the last financial year, and this financial year is under a Labour Government while the last financial year was under a Conservative one. When I was the Police Minister in 2009-10, we had the highest number of police officers ever. We faced 20,000 police officers being cut between 2010 and 2015-16, and only latterly have they been built up again. I hope the noble Lord will work with us to ensure that the £1.1 billion of extra spending is put to good use. He can certainly monitor the delivery of the 13,000 officers, which will be a real improvement on the ground to help tackle county lines and other neighbourhood policing issues. That is a 6.6% cash increase and a 4.1% real-terms increase in funding, and I hope this House welcomes it.
The Lord Bishop of Chelmsford
My Lords, the Border Security, Asylum and Immigration Bill introduces new offences, which appear to have no connection to immigration, of possessing any specified article that might be used in connection with any serious offence. What safeguards does the Minister think need to be in that Bill to prevent the needless criminalisation of children? Does he agree that a legal definition of child criminal exploitation might help in that?
Lord Hanson of Flint (Lab)
I am grateful to the right reverend Prelate. The legal definition of child criminal exploitation will be in the police and crime Bill, which will be published very shortly, almost certainly tomorrow. On immigration and criminal penalties, this is down to penalties around the supply of boats, engines and materials to ensure that the use of that material in small boats is criminalised, which currently it is not. That helps downstream and we have done some work with Germany, France, Belgium and Holland to look at how we can prevent that equipment reaching channel shores in France, Belgium and Holland, where it is used to transport people illegally to the United Kingdom across the channel.
Lord Browne of Ladyton (Lab)
I thank the noble Lord, Lord Murray, for asking this Question. Not for the first time, a Question coming from the Opposition Benches has caused me to do some research into how the current strategy for a particular policy came about. He will know that on 9 July 2024—five days after the general election—the National Police Chiefs’ Council published the Disrupting County Lines Policing Strategy 2024-2027, which presumably had been approved by the Home Office when he was then a Minister. So if it is not performing that strategy which he agreed to, I say to my noble friend the Minister that it is good that there is a piece of legislation coming forward to clear up the problems in the legacy that we got from that strategy, is it not?
Lord Hanson of Flint (Lab)
How can I not say yes to my noble friend? Let me reach out the hand of friendship to the Opposition. I know that they do not want to see county lines and drug runners in place. I know that they do not want to see exploitation of children or the crime that results from that such as car theft, theft from houses and other thefts. My hand of friendship to them is that when the police and crime Bill is published shortly, I hope they will reach out and support the measures in the Bill on child exploitation and other areas of real importance to support the ending of these county drug lines—test the measures, by all means, but ultimately support them when they come to this House.
Violence Against Women and Girls on Trains
(1 day, 10 hours ago)
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Baroness Morgan of Cotes
To ask His Majesty’s Government, following the passing of the Passenger Railway Services (Public Ownership) Act 2024, what discussions the Department for Transport has had with the Home Office about the prevention of violence against women and girls on trains.
The Minister of State, Department for Transport (Lord Hendy of Richmond Hill) (Lab)
My Lords, tackling violence against women and girls on the railway network is a priority for the department, with my honourable friend the Minister for Local Transport and officials meeting their counterparts in the Home Office regularly. These meetings have been to co-ordinate and develop plans for tackling violence against women and girls on public transport, including trains, which will be a significant contributor to the success of the safer streets mission, part of the Government’s plan for change.
Baroness Morgan of Cotes (Non-Afl)
I thank the Minister very much for his Answer. Will the forthcoming Bill relating to the creation of Great British Railways contain a clear statement of the Government’s responsibility after nationalisation for the prevention of violence against women and girls on trains? Does the Minister agree that the potential for violence against women and girls on our railways needs to be prevented by measures such as decent lighting and the better design of trains and stations, rather than being dealt with by the British Transport Police after the event?
Lord Hendy of Richmond Hill (Lab)
Taking the noble Baroness’s second point first, I completely agree that it is highly desirable to design out those features of railway travel which might contribute to any opportunity for violence against women and girls. My belief is that we do not need to wait for the railways Bill to do that, only to note that Great British Railways will have increasing control over the design of trains and, in particular, standards of lighting and closed-circuit television, which I think she is referring to. That will be very welcome, because it is quite clear that, although the British Transport Police is absolutely committed to tackling violence against women and girls, designing out opportunities for such violence to happen is a real priority.
Baroness Pidgeon (LD)
My Lords, the British Transport Police has a key role in ensuring our public transport remains safe. Its funding comes, in part, from train operating companies. What discussions has the Minister had with the Treasury to ensure the British Transport Police is properly resourced as the railway moves into public ownership?
Lord Hendy of Richmond Hill (Lab)
The British Transport Police is governed by the British Transport Police Authority, which is independent. There are no statutory powers that I or the Government have to intervene. Nevertheless, the authority decided that the budgetary increase for 2025-26 would be 5.9%, which is significant. Ten days ago, I met the authority and the British Transport Police—including the chief constable—along with train operators, Network Rail and Transport for London to ensure that the BTP’s independent operational plans maximise the best use of the budget in those circumstances and, in particular, contribute to reducing violence against women and girls.
Lord Carlile of Berriew (CB)
My Lords, the slogan “See it. Say it. Sorted.” works best when, you having seen it and said it, there is someone qualified on the train to sort it. Does the Minister agree that there should be an increase—indeed, a guarantee—of people who are properly trained, on every train, so that there is a reduction in crime?
Lord Hendy of Richmond Hill (Lab)
The opportunity for railway travellers to report crime through the 61016 phone number is not limited to what is happening on the train but includes what travellers see from the time they enter the network to the time they leave it. Many trains have one such person or more on them. Equally, in the case of trains that do not generally stop frequently, there is the opportunity of summoning police or other aid to the train.
Lord Sikka (Lab)
My Lords, two policies would help to tackle violence against women and girls on trains: first, a ban on the sale and consumption of alcohol on public transport; and, secondly, ensuring that railway staff are present on platforms during scheduled train services. If the Minister agrees, when can we expect to see these changes implemented?
Lord Hendy of Richmond Hill (Lab)
I thank my noble friend. It was quite a long time ago, but I was responsible for the original drink ban on the London Underground, which was enacted by the second Mayor of London. It was, by and large, successful—and it still is, although enforcement is always an issue. It is not practicable to have somebody in attendance on a railway platform for every station in Great Britain. Many of them have very few travellers, and those which are busy generally do have someone. I agree with the sentiment that it is desirable to have somebody on the platform. In fact, to be frank, it is better to have somebody around the station than it is to have them in a booking office, but those are discussions that the previous Government did not manage very well. This Government will think about how to best staff stations in order to make sure that all passengers feel comfortable and safe when travelling by train.
Lord Moylan (Con)
My Lords, I appreciate that the British Transport Police is responsible to an independent authority, but when one looks at its annual report, one sees many pages devoted to net zero and diversity and inclusion but nothing that I can find specifically about how it is tackling operationally violence against women and girls. Does the Minister think that the British Transport Police has got the balance right, or is there scope for improvement?
Lord Hendy of Richmond Hill (Lab)
I assure the noble Lord that tackling violence against women and girls is a top priority for the British Transport Police. At the meeting I previously referred to with the authority and the BTP, the chief constable was vigorous in making sure that everybody knew that a significant proportion of the total resources of the British Transport Police is devoted to tackling violence against women and girls. I should be only too happy to ask the chief constable to brief the noble Lord personally about how much effort is being put into this subject. I hope he will take me up on that offer.
Lord Hogan-Howe (CB)
My Lords, the noble Lord, Lord Sikka, made a good point about alcohol control—as the Minister said, he introduced it on the Underground—but I do not think that it needs someone at every station to prevent people taking it on-board. There are staff on many trains who could stop people drinking alcohol, and there are other people who could intervene, so I think that a ban could be effective. Furthermore, we should keep an open mind about the possibility of this suggestion. Many of the people committing these offences are recidivists, but they seem to have an unrestricted right to book a ticket on a train. I wonder what restrictions might be placed on their access to a public transport system, to prevent victims suffering as they do quite regularly.
Lord Hendy of Richmond Hill (Lab)
I thank the noble Lord for his observations about alcohol. Travel on the railway means many different things to different people; a 15 or 20-minute journey is certainly tolerable—and probably preferable—without alcohol, but a five-hour journey, from one end of the country to the other, is probably not. There are provisions to ban the sale and consumption of alcohol on trains going to and from football matches, for example, so it has been thought through. However, it is rather draconian to prevent people on long journeys relaxing. The behaviour to which the noble Lord refers and the sorts of people he is talking about are behaviours and people that should be closely monitored in our society. I am not sure that I can easily see how one could prevent such people buying tickets, but it might be that the advent of modern technology makes their presence easier to identify, and certainly easier to identify if they commit offences, including terrible offences against women and girls.
Lord Watts (Lab)
My Lords, can the Minister inform the House how the railway police and the national police service work together to co-ordinate activities to stop this on trains?
Lord Hendy of Richmond Hill (Lab)
I thank the noble Lord for that question. The British Transport Police covers the whole country, so its liaison is necessarily diverse across all the Home Office police forces and those in Scotland and Wales. It does a good job. A previous Question this afternoon referred to county lines drug trafficking. In recognition of the national function of the British Transport Police, it has been given £4.3 million for the next financial year by the Home Office to fund its county lines task force, which works with the Home Office police forces in the seamless identification of people travelling across what would otherwise be police boundaries, and in catching and convicting criminals for county lines and other offences.
Baroness Goldie (Con)
My Lords, I am old enough to remember a phenomenon called the “ladies only compartment”—and I am not alone in that, I gather. I was required to travel in that compartment as a schoolgirl. Is the creation of a safety zone for women and girls on our trains something that perhaps might be considered under the “design out” approach to which the Minister referred earlier?
Lord Hendy of Richmond Hill (Lab)
With modern railway rolling stock, it is far more difficult to partition off relatively small spaces. I too am old enough to remember women-only compartments, but compartment trains were undesirable in a whole pile of ways, including due to the relative isolation of people in different compartments. These days, while open carriages might not always be welcome if you are reading a good novel, they at least allow people to be in relatively open circumstances—and, hence, you would like to think that they would discourage people. The noble Baroness’s suggestion is a difficult one, given the configuration of modern railway rolling stock. To go back to the original point of the noble Baroness, Lady Morgan of Cotes, to design out those nooks and crannies in railway compartments and those dimly lit places on railway stations is where we ought to go to reduce the opportunities for terrible violence against women and girls.
Terrorism (Protection of Premises) Bill
(1 day, 10 hours ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Lord Hanson of Flint
That the amendments for the Report stage be marshalled and considered in the following order: Clauses 1 to 4, Schedules 1 and 2, Clauses 5 to 12, Schedule 3, Clauses 13 to 34, Schedule 4, Clauses 35 to 38, Title.
Gambling Levy Regulations 2025
Baroness Twycross
That the draft Regulations laid before the House on 12 and 10 December 2024 be approved.
Relevant document: 13th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instruments). Considered in Grand Committee on 12 February.
Mental Health Bill [HL]
Monday 24th February 2025
(1 day, 10 hours ago)
Lords ChamberMental 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-V Fifth marshalled list for Committee - (20 Feb 2025)
Baroness Tyler of Enfield
“Cost and implementation reporting(1) The Secretary of State must lay a report before Parliament four months after the passage of the Act, and annually thereafter, assessing the costs and implementation dates of provisions in the Act.(2) The report must include details on—(a) the monetised and non-monetised costs to the health and social care system;(b) the monetised and non-monetised costs to the justice system;(c) costs associated with additional training for NHS staff responsible for treatment provisions;(d) costs related to community care services and infrastructure;(e) costs for additional training for approved mental health practitioners and independent mental health advocates;(f) additional costs incurred by local authorities;(g) housing and care-related costs for individuals with autism or learning disabilities; (h) additional costs incurred by the Care Quality Commission;(i) costs for training responsible clinicians and other relevant parties involved in patient care.(3) The report must also include a monitoring and evaluation strategy for the reforms introduced by the Act, including—(a) commencement timelines for the Act’s provisions;(b) an assessment of the Act’s impact on patient outcomes including user feedback; (c) relevant data to evaluate whether the reforms are being delivered as intended;(d) assessments of the impact of new safeguards and support mechanisms on patient and carer experiences.(4) Following the publication of the first report, the Secretary of State must arrange for the tabling of—(a) a motion for resolution on the report in the House of Commons moved by a Minister of the Crown, and(b) a motion for the House of Lords to take note of the report moved by a Minister of the Crown.(5) If the report is rejected by the House of Commons, the Secretary of State must deliver a statement to Parliament within a period of three months which addresses the contents of the report.(6) Subsequent reports are not subject to the provisions of subsection (4).”Member’s explanatory statement
This amendment requires the Secretary of State to present a report to Parliament detailing the costs and implementation assessments of the Act after one year, and annually thereafter. The first report published under this provision must be subject to a resolution motion in both Houses of Parliament.
Baroness Tyler of Enfield (LD)
My Lords, I rise to speak to Amendment 130 in the name of my noble friend Lord Scriven, who is unable to be in his place today. On these Benches, our view is that this amendment is essential to the success of reforms proposed in this Bill. It would ensure not only accountability but the continuous assessment of costs and implementation timelines related to the vital provisions of the Bill. In short, it is a costed plan. It is grouped with various other important amendments, some of which I strongly support.
The issue we have repeatedly encountered in both mental health policy and community care is that we end up with community but very little actual care within it. This gap leads to preventable health crises, placing individuals and services under immense strain. Therefore, we must do everything to avoid this outcome. Yet so far in Committee we have not heard the necessary reassurances that adequate provisions will be in place nor that they have been properly costed and strategically planned for community care.
At its core, this amendment champions the need for transparency in the investment and execution of mental health care, specifically within community settings, where the demand will be greatest when the changes in legislation are brought forward. We cannot afford to enact these mental health reforms without a clear understanding of their financial and structural impact on the health and social care system, the justice system, local authorities and, most importantly, the lives of those who rely on these services.
In short, the amendment would require the Secretary of State to lay a report before Parliament within four months of the passage of the Bill and annually thereafter. The report would provide a detailed assessment of both the monetised and non-monetised costs associated with the provisions of the Bill. Specifically, it would outline the financial commitments necessary for the training of NHS staff and approved mental health professionals, the expansion of community care services and the provision of adequate housing and care for individuals with autism or learning disabilities. Furthermore, the amendment would ensure that the Care Quality Commission was adequately resourced to uphold the highest standards of mental health provision. These are fundamental requirements, because without a clear cost framework and implementation plan, we risk leaving individuals in crisis without the support they need.
However, it is important to say that the amendment is not simply about numbers; it is about real lives. The monitoring and evaluation strategy included within this proposal would ensure that reforms were not just theoretical but delivered tangible improvements in patient care. It would require the Secretary of State to assess patient outcomes, collect user feedback and measure the effectiveness of new safeguards and support mechanisms.
If we fail to scrutinise and report on the costs and impact of this legislation, we risk underfunding critical services, delaying implementation, and ultimately failing those who are most vulnerable. Mental health services, particularly those delivered in the community, are a necessity and not a luxury. They prevent hospitalisations, support recovery and uphold the dignity of those living with mental health conditions. This amendment would ensure that these services were not only established but were adequately funded, effectively implemented and continuously improved.
I turn briefly to Amendments 163 and 164 from the noble Lord, Lord Stevens, which I see as complementary and mutually reinforcing to Amendment 130. In particular, Amendment 164 would ensure that mental health funding was not cut as a share of overall health service funding until this Act was fully implemented. The amendment supports the principle of parity of esteem by putting a floor under the aggregate mental health service funding share in England; in essence, enshrining the mental health investment standard in law, something that we very much support. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, in speaking chiefly to my Amendment 153, I shall say briefly that I very much agree with what the noble Baroness, Lady Tyler, just said and support, as does she, the related amendments that come after this. They interrelate with an amendment of mine that was discussed earlier in Committee about the funding of community services. Funding is the great issue right across the board, and it is essential that there is something in the Bill that addresses that. My amendment, although it looks somewhat different from the others in this group, is closely related to them, because, as the noble Baroness said, we have to be concerned about the implementation of the Bill and not just its nature.
My amendment says that for-profit companies should not deliver under the Bill. It does that in two ways. It says:
“Any new facilities or organisations created to deliver the provisions of this Act must not be operated by for-profit companies”.
It then says that within five years of the day on which this Act is passed, the Secretary of State must ensure that what is now for-profit in this space is transferred to not-for-profit. Why is that essential to implementation? I shall put it into three categories.
The first is the cost of paying profits from what should be money for the provision of services. The second is quality issues associated with for-profit companies; after all, their directors and management have a duty to maximise the return to shareholders. That is the way that for-profit companies are set up in this country. The third is that there are issues of stability.
Lord Stevens of Birmingham (CB)
My Lords, building on many of the important points we have just heard, I will speak to Amendments 163 and 164 in my name. I thank the noble Baronesses, Lady Tyler of Enfield and Lady Neuberger, and the noble Lord, Lord Kamall, for their support for these two modest proposals, which are parsimoniously drafted but nevertheless potentially impactful if adopted.
The first amendment quite simply says that we will do away with “mañana, mañana” when it comes to implementing this Bill, which we have all spent so much time on and which the patients and advocates are so keen to see adopted, by putting a five-year backstop from the date on which the Bill becomes an Act through to commencement. Commencement of all its provisions must happen no later than five years after the Bill receives Royal Assent. The logic for that is that we all believe that, on balance, by the time the Bill has worked its way through Parliament, it ought to be an injection of improvement for mental health services, so why would we want to delay?
Of course, part of the answer is that there are some rate limiters, which are described elsewhere, including in the impact assessment. If we go through the impact assessment and say, “All right, what are the specific things that it suggests won’t be possible or won’t have got going until year 6 after Royal Assent?”, we will find it is a relatively modest number. For those who want to take a look, it is in table 1 of the impact assessment, at page 17. There are some changes to the second opinion doctor, to the CTOs, to the CTPs and so on, but both the pound note impact and the extra staffing at year 6 and beyond are incredibly modest compared with the overall size of mental health spending that we will incur. The incremental costs beyond year 5 are somewhere between £15 million and £25 million, on a budget that runs to billions. I believe that, in the real world, if we strain every sinew, it will be possible to get this thing done within five years.
There is another reason for thinking that it is useful to have a statutory backstop to implementation in the Act itself: the unfortunate tendency that we have seen in various other pieces of legislation that, when push comes to shove, the decision is made just to kick the can down the road a little further. I think it is fair to say that both principal parties have criticised the other for doing so with legislation that has passed. I think we had some measures in the health Act that the noble Lord, Lord Kamall, steered through on obesity and junk food. They never quite saw the light of day, despite Parliament deciding that they would be a good thing. The then Government were criticised for that. Likewise, we put the time in to create the Higher Education (Freedom of Speech) Act. I think the Opposition criticised the Government for delays in implementing it, despite the fact that Parliament had passed it. Of course, the cause célèbre is social care reform, where we have been happily kicking down the track legislation that has seen dither and delay for over two decades. That should not be the fate of this legislation. Therefore, this simple amendment would put in a backstop to save us from ourselves. Parliament is sovereign. If we want to get the job done, there is no reason to think that we cannot make these changes in less than the time it took this country to fight and win World War II. That is the rationale for Amendment 163.
Amendment 164 simply says that, during the intervening period while this Act is being implemented, it would be unreasonable to shrink the size of the slice of the pie going on mental health services, for all the reasons that we have heard throughout Committee. To make sure that there can be no argy-bargy on how the drafting is laid out, we have lifted the wording exactly from the health Act as it currently is on the statute book around the proportion incurred by NHS England and ICBs that, taken together, relates to mental health. It says that it
“must not fall as a share of their expenditure (taken together) on all health services”,
with a little kicker: to stop the Department of Health and Social Care marking its own homework, the National Audit Office will do a review after each year and provide a report that we can all scrutinise.
Here are some reasons why the Government should not object to this. First, it does not tie their hands on the overall sum of funding allocated to the National Health Service. That is a decision for the Executive and negotiated each year; nothing here would constrain the ability of the Government to increase or cut expenditure on the National Health Service. Nor would it constrain the ability of each integrated care board to make a judgment on its own priorities. It simply says that, in the round—taking the 42 ICBs and NHS England together—it would be unreasonable to think that the share of health service spending on mental health will go down at a time when there is an incredible gap between need and treatment, and when we are trying to implement this legislation.
Fortunately, just before Christmas the Secretary of State, Wes Streeting, signalled his support for the mental health investment standard. This is the opportunity to provide legislative cover for that very welcome announcement. It is possible that the current Secretary of State will not be the Secretary of State for the totality of this Parliament—nobody has a crystal ball. Looking out five years beyond Royal Assent, it is also possible that year 5 will be the first year of a new Parliament. So it is entirely reasonable for Parliament to support the Secretary of State’s intent by legislating in the way set out in Amendment 164, not least because there are some concerning signals from around the NHS that, for the first time since the mental health investment standard was introduced, it is possible that the share of funding on mental health will go down, not up, when taken in the round. We have not yet seen the figures, but perhaps the Minister can confirm whether that is correct. In any event, that simply serves to underline the acute importance of this safety net provision to ensure that the financial firepower is there to get this Act done.
Baroness Hollins (CB)
My Lords, I apologise for my absence from earlier debates in Committee. I will speak very briefly in support of these amendments. My noble friend said that we need to save ourselves from ourselves. Actually, we need to raise aspirations to change the culture of believing that it cannot be done and thinking that it will cost too much to take a more preventive approach, to care properly for people in the community and to achieve parity for mental health outcomes. These amendments are really important to try to achieve that, so I support them.
Baroness Neuberger (CB)
My Lords, I will speak very briefly in support of Amendments 163 and 164, to which I have added my name, and particularly about the length of time, the five years.
We first started talking about the reforms to the mental health legislation eight years ago, when we set up the review of the legislation under Sir Simon Wessely, and I was the vice-chair. It reported in 2018—seven years ago—and it was not even a very radical rethink of our mental health legislation. Yes, it will make a lot of difference to a lot of people—service users are very keen for this to come about, and they certainly do not want to wait longer than five years to see all the measures come into force—but this is relatively gentle stuff. At some stage we will need a much more radical rethink of our mental health legislation. Five years is quite a long time, so I rather hope the Minister can give us some comfort by saying that most of it will be done in two years, or perhaps three years at the outside.
Baroness Fox of Buckley (Non-Afl)
My Lords, first, I support Amendment 130 in the name of the noble Lord, Lord Scriven. I have been concerned, as we have discussed this Bill, that costs are likely to spiral. I am not objecting to that, but it seems to be the elephant in the room. Unless we know, the Bill will become a white elephant because people will just say that we cannot afford to do it. It is far better to have transparency, as has been argued.
Secondly, I oppose Amendment 153. For a number of reasons, I do not think we should prohibit for-profit entities being involved in this endeavour. The suggestion is that if we remove the profit motive, all will be well. A word of caution: not-for-profit organisations are not necessarily the most efficient, virtuous organisations, as we might imagine. In the charitable sector there are some worrying trends of money being spent, rather self-indulgently, on staffing and on all manner of extraneous and sometimes politicised endeavours.
We have seen the emergence of EDI—equality, diversity and inclusion—policies, which the Health Minister, Wes Streeting, has worried about happening in the state sector, and we have seen them become absolutely rampant in the charitable and not-for-profit sector. I want us to concentrate on the people the Bill is designed to help and therefore not to have our own political idea that only the state can deliver well—I just do not believe that is true.
For example, I have done work in prisons over a period of time—that also relates to the Bill—and have worked in both private and state-run prisons. Some private prisons are awful and some state-run prisons are worse—and, by the way, I have worked in some brilliant state-run prisons and some brilliant privately run prisons. We should judge on the basis of the quality of the care or the service that they provide, not some prior presumption that because they make profit they might be useless, somehow evil or not attending to their core mission.
Earl Howe (Con)
My Lords, I am right behind the noble Lord, Lord Scriven, and the noble Baroness, Lady Tyler, in their Amendment 130. We know, and I believe that by and large we accept, that the Bill is not intended by the Government to hold out the prospect of instantaneous changes to the delivery of mental health care. It offers a series of measures that, over a period of years, should make a material difference to the well-being of a wide range of mentally ill people who require treatment, whether in a secure mental health setting or in the community.
The Minister has spoken of the need to view these measures in the broader context of the NHS 10-year plan and, certainly from the Government’s point of view, that is a perfectly reasonable position to take. However, if that is the Government’s policy, it begs a whole mass of questions around implementation and funding. For example, what do the Government see as the immediate high-priority measures that they wish to introduce? Which measures do they propose to defer, and for how long? What are the costs associated with these changes, both to the NHS and, as the noble Baroness, Lady Tyler, pointed out, to the justice system and local government? Bearing in mind Treasury constraints, when realistically do they believe a clear timeline for change will emerge? We have the impact assessment, but how far can we rely on that?
If those questions for the time being have to remain hanging in the air, as I suspect they will, I share the view of the noble Baroness, Lady Tyler, that Parliament, in the not-too-distant future, needs to be given an account of what the longer-term future looks like in a way that reflects not only the Government’s current thinking but, as time goes on, how their thinking evolves, as it surely will. There is therefore a strong case for a report to Parliament sometime in the next few months and on an annual basis thereafter, making clear both the timeline of ambition and the timeline of what in reality is being delivered.
I am conscious that we all need to keep our remarks succinct and to the point, so I will comment only briefly on the other amendments in this group. I am afraid I cannot support Amendment 153 in the name of the noble Baroness, Lady Bennett. I have always believed that what matters most in healthcare is not whether a service is delivered by a public or a private organisation but rather the quality of care to patients and whether good outcomes are achieved at acceptable cost.
Finally, my noble friend Lord Kamall has added his name to Amendments 163 and 164. These amendments stand absolutely four-square with the theme of Amendment 130, and on my noble friend’s behalf I express my warm support for them. The noble Lord, Lord Stevens, has said it all.
Just as we accept that we will not get any instant changes arising from the Bill, by a corresponding token, the Government cannot take that as a free pass from Parliament to defer implementing its provisions sine die. We cannot have a situation in which, prior to implementing the provisions, the principle of parity of esteem is quietly put to one side. I hope the Minister will have reassuring words to say on those very important points of principle.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I am most grateful to noble Lords for their contributions to this first debate today, and I start by saying how glad I am—I am sure other noble Lords will say this too—to see the noble Baroness, Lady Hollins, in her rightful place. I certainly heard her support for the amendments that we are discussing.
Before I turn to the amendments, it may be helpful to your Lordships’ Committee if I briefly set out some of the high-level plans for implementation of these reforms. I am grateful for the understanding—the noble Earl, Lord Howe, made this point—that time is required. I also understand the emphasis that noble Lords are putting on pace and, of course, we try to match those two things together, but I know we are all agreed on the need to get the Bill in the right place and the Act delivering.
The first priority after Royal Assent will be to draft and consult on the code of practice, and we will be engaging with people with lived experience and their families and carers, staff and professional groups, commissioners, providers and others to do this. The code will be laid before Parliament before final publication, and I am committed to working with noble Lords to ensure that we get this crucial piece of work absolutely right. We expect that this process will take at least a year.
Alongside the code, we will be developing secondary legislation, which will also be laid before Parliament, with more detail on areas such as statutory care and treatment plans. We will then need time to train the existing workforce on the new Act, the regulations and the code. This will likely be in 2026 and 2027, and we intend to commence the first major phase of reforms in 2027.
Of course, some reforms are going to take longer, as noble Lords will appreciate. The noble Baroness, Lady Neuberger, tempted me to go even further than five years, and I thank her for the temptation, but I know I will not be able to please her on this occasion. Of course, it takes time to train new second opinion appointed doctors, judges and approved clinicians, so, as set out in the impact assessment, we believe it will take 10 years to fully implement the reforms, but I emphasise that these timelines are indicative, and we will iterate these plans as we get more certainty on future funding and the wider workforce plans. Of course, I fully appreciate the importance of parliamentary scrutiny and accountability of this work, which is crucial, and I am committed to updating the House throughout the implementation period.
Turning to the amendments, I will start with Amendment 130 in the name of the noble Lord, Lord Scriven, kindly introduced by the noble Baroness, Lady Tyler. I say in response that any implementation plan, as proposed in the amendment, which would be published four months after Royal Assent, would be very unlikely to contain any more detail than is already in the impact assessment. It is important to prioritise drafting the new code and the secondary regulations after Royal Assent. I also confirm to your Lordships’ Committee that we will commission an independent evaluation of the reforms, alongside existing monitoring and reporting by the CQC.
As I have said, I fully expect to update the House during the planning and delivery of the reforms. However, a requirement in primary legislation to publish annually, and within four months of Royal Assent, would be premature.
Amendment 153, tabled by the noble Baroness, Lady Bennett, would prohibit for-profit companies from delivering provisions of the Act. I listened closely to the concerns raised by the noble Baroness, but I do not share the view that a ban on for-profit providers is the right approach, for the reasons that were set out by the noble Earl, Lord Howe, and the noble Baroness, Lady Fox. Our focus should indeed be on ensuring that we have high-quality and good value-for-money services. However, I assure the noble Baroness, Lady Bennett, that we are already investing in a significant quality transformation programme and piloting new models of care to ensure that care is focused on the individual, with maximum therapeutic benefit. That is where our priority lies and for that reason we are resisting this amendment.
Turning to Amendment 163, I am grateful to the noble Lords, Lord Stevens and Lord Kamall, and the noble Baronesses, Lady Tyler and Lady Neuberger, for bringing this issue before the Committee. As I said in my opening remarks, I too want to see the benefits of these reforms coming into play quickly and effectively. We intend to commence the reforms in phases, because some can be implemented more quickly than others, which need more time. This is not just about money but about building system and workforce capacity. For example, the impact assessment estimates that we need over 400 additional second opinion appointed doctors and over 300 additional approved clinicians. Many of these will be consultant psychiatrists, who would already need to have commenced training prior to the legislation for us to fully implement the Bill within five years, as required by this amendment. Rather than having a fixed deadline, as is proposed, we intend to monitor the impact of investment and test readiness to commence new powers on an ongoing basis, commencing each phase when we are confident that it is safe and effective to do so.
Finally, I turn to Amendment 164, tabled by the noble Lord, Lord Stevens, and supported by the noble Lord, Lord Kamall, and the noble Baronesses, Lady Tyler of Enfield and Lady Neuberger. I associate myself with the comments about the commitment to treating physical and mental health equally, in line with this Government’s manifesto commitments. The mental health investment standard requires ICB spending on mental health to grow at least in line with overall recurrent funding allocations. Based on total planned spend for 2024-25, we expect all ICBs to meet the standard in this financial year.
There are already mechanisms to ensure that spending on mental health is prioritised. I refer noble Lords to Section 12F of the NHS Act 2006, which requires the Secretary of State for Health and Social Care to lay before Parliament an annual document setting out whether they expect NHS England and ICB spending on mental health to increase in the next year. The Secretary of State will publish this statement before the end of this financial year.
As several noble Lords said, funding for mental health spend goes beyond the scope of the Mental Health Act, which aims to improve the care and treatment of individuals who have a mental illness and need to be detained in hospital or subject to restrictions in the community. Therefore, I respectfully suggest that the Act is not the appropriate mechanism for holding the Government to account on mental health spend. I ask the noble Baroness to withdraw the amendment.
Baroness Tyler of Enfield (LD)
My Lords, I thank the Minister for her very comprehensive response and all noble Lords who have spoken. It was very helpful that the Minister started by setting out some of what I think she called the “high-level” plans for implementation. It was good to hear about what is going to happen with the code of practice and about plans to bring forward secondary legislation. I hope I heard correctly that it will be 2027 when we see the first major stage of these reforms starting to happen on the ground. That is the good side of this debate; it is incredibly important, because this is one of those issues where the implementation is as important as the policy, and that is why it is right that we are having this discussion.
Baroness Tyler of Enfield
“Mental Health CommissionerAfter section 142B of the Mental Health Act 1983, insert—“Mental Health Commissioner
142C Independent Mental Health Commissioner: establishment(1) There is to be an office known as the Office of the Mental Health Commissioner.(2) The Office in subsection (1) must be established by the Secretary of State three months after the day on which the Mental Health Act 2025 is passed.(3) The Office of the Mental Health Commissioner will be led by an individual appointed by the Secretary of State titled the “Independent Mental Health Commissioner”.(4) The role in subsection (3) is referred to as the “Mental Health Commissioner”.142D Functions of the Commissioner(1) The Mental Health Commissioner is responsible for overseeing the implementation and operability of functions discharged by relevant bodies and persons under the provisions of this Act and the Mental Health Act 2025, particularly regarding the provision of treatment, care, and detention of people with a mental disorder.(2) The Mental Health Commissioner is also responsible for overseeing the implementation and operability of functions discharged by relevant bodies and persons under this Act which relate to the Mental Capacity Act 2005 and the Mental Health Act 2007.(3) The Mental Health Commissioner must publish an annual report on the use of functions discharged under this Act, which must assess—(a) the quality of mental health care treatment provided by relevant services;(b) the accessibility of mental health care treatment services;(c) the relationship between mental health and the criminal justice system;(d) inequalities of mental health care provision regarding protected characteristics under the Equality Act 2010; (e) the use and effectiveness of detention measures under this Act, including but not limited to Community Treatment Orders, for the purposes of therapeutic benefit outlined in section 1(2B);(f) challenges surrounding stigma of mental health conditions;(g) the accessibility of advice and support to mental health service users, their families and carers on their legal rights;(h) other issues deemed appropriate by the Mental Health Commissioner.(4) In fulfilling their duties under subsection (1), the Mental Health Commissioner may review, and monitor the operation of, arrangements falling within subsection (1), (2) and (3) for the purpose of ascertaining whether, and to what extent, the arrangements are effective in promoting the principles in section 118(2B) of this Act.142E Appointment and tenure of officeThe Secretary of State may make regulations which make provision as to—(a) the appointment of the Mental Health Commissioner (including any conditions to be fulfilled for appointment);(b) the filling of vacancies in the office of Commissioner;(c) the tenure of office of the Mental Health Commissioner, including the circumstances in which they cease to hold office or may be removed or suspended from office.142F Remuneration of roleThe Secretary of State may—(a) pay the Commissioner such remuneration and allowances, and(b) pay, or make provision for the payment of, such pension or gratuities to or in respect of them, as may be provided for under the terms of their appointment.142G Appointment of staff(1) The Commissioner may appoint any staff they consider necessary for assisting in the exercise of their functions, one of whom must be Deputy Commissioner.(2) During any vacancy in the office of Commissioner or at any time when the Commissioner is for any reason unable to act, the Deputy Commissioner may exercise their functions (and any property or rights vested in the Commissioner may accordingly be dealt with by the deputy as if vested in them).(3) Any member of the Commissioner's staff may, so far as authorised by them, exercise any of their functions.(4) The duties of the Deputy Commissioner must be determined by the Commissioner.(5) Regulations may provide for the Commissioner to make periodic or other reports to the Secretary of State relating to the exercise of their functions and may require the reports to be published in the manner required by the regulations.142H Examination of cases(1) The Secretary of State may, by regulations, make provision for the examination by the Mental Health Commissioner of the cases of those who are detained under this Act receiving treatment by authorised mental health care providers.(2) The regulations may include provision about—(a) the types of case which may be examined; (b) the circumstances in which an examination may be made;(c) the procedure for conducting an examination, including provision about the representation of parties;(d) the publication of reports following an examination.(3) The Secretary of State may, by regulations, provide for the Office of the Mental Health Commissioner to access and examine relevant data on mental health treatment provision held by NHS England and any other authorities the Secretary of State considers appropriate.(4) In cases under subsection (3), reasonable steps must be taken to ensure that data provided to the Office of the Mental Health Commissioner is anonymised.(5) Regulations may, for the purposes of enabling the Mental Health Commissioner to examine or determine whether any recommendation made in a report following an examination has been complied with, make provision for—(a) requiring persons to provide the Mental Health Commissioner with information, or(b) requiring persons who hold or are accountable for information to provide the Mental Health Commissioner with explanations or other assistance, for the purpose of an examination or for the purposes of determining whether any recommendation made in a report following an examination has been complied with.(6) For the purposes mentioned in subsection (3), the Mental Health Commissioner has the same powers as the High Court in respect of—(a) the attendance and examination of witnesses (including the administration of oaths and affirmations and the examination of witnesses abroad), and(b) the provision of information.(7) No person may be compelled for the purposes mentioned in subsection (5) to give any evidence or provide any information which they could not be compelled to give or provide in civil proceedings before the High Court.(8) The regulations may make provision for the payment by the Mental Health Commissioner of sums in respect of expenses or allowances to persons who attend or provide information for the purposes mentioned in subsection (5).142I General powers(1) Subject to any directions given by the Secretary of State, the Commissioner may do anything which appears to them to be necessary or expedient for the purpose of, or in connection with, the exercise of their functions.(2) This may include—(a) collaborating with health services, public authorities, charitable organisations, and other entities deemed necessary by the Mental Health Commissioner that are responsible for the provision of mental health care across the United Kingdom, including, but not limited to NHS bodies, the Care Quality Commission, and the Parliamentary and Health Service Ombudsman;(b) making recommendations to the Secretary of State regarding treatment and detention provisions contained in this Act;(c) ensuring that authorities and public bodies with responsibilities for enforcement under the Mental Health Act 1983 have the necessary capacity and resources to undertake duties; (d) promoting mental health wellbeing;(e) ensuring access to treatment;(f) safeguarding the rights and welfare of patients;(g) other duties deemed to be necessary by the Secretary of State.142J Accounts(1) The Mental Health Commissioner must keep accounts in such form as the Secretary of State may determine.(2) The Mental Health Commissioner must prepare annual accounts in respect of each financial year in such form as the Secretary of State may determine.(3) The Mental Health Commissioner must provide copies of the annual accounts to the Secretary of State and the Comptroller and Auditor General within such period after the end of the financial year to which the accounts relate as the Secretary of State may determine.(4) The Comptroller and Auditor General must examine, certify, and report on the annual accounts and must lay copies of the accounts and of their report before Parliament.(5) In this paragraph “financial year”, in relation to the Mental Health Commissioner, means—(a) the period beginning with the date on which the Mental Health Commissioner is established and ending with the next 31st March following that date, and(b) each successive period of twelve months ending with 31st March.142K Regulations(1) Regulations under section 142E or 142H are to be made by statutory instrument.(2) A statutory instrument containing regulations under section 142E or 142H may not be made unless a draft of the instrument containing them has been laid before, and approved by a resolution of, each House of Parliament.””
Baroness Tyler of Enfield (LD)
My Lords, I am sorry, it is me again. My Amendment 131 would establish a mental health commissioner for England as a new statutory office within government. I am quite conscious that it is a rather long and detailed amendment, but to my mind that reflects the importance of it to the successful implementation of the overall Act and the pivotal role that a commissioner would play. I am very grateful to the noble Lord, Lord Bradley, and to the noble Baronesses, Lady Murphy and Lady Bennett, for adding their names to my amendment, which gives a sense of strong cross-party support.
The Joint Committee recommended the creation of a statutory mental health commissioner to help drive the ongoing process of system reform and ensure accountability for implementation—I always felt that that was one of its seminal recommendations. I believe a mental health commissioner would provide sustained leadership for mental health, complementary to the existing roles and structures that we have, as well as monitoring the effective implementation of the Act. The commissioner would operate inside government and in the wider public sphere, giving the role real teeth.
Yes, the commissioner would have influence within government and the NHS, but they would also have the freedom to speak out when they considered it necessary to lead public debate, challenge stigma and break down boundaries and taboos. They could help galvanise action across departments and systems to improve population mental health and ensure that people living with mental illness are treated fairly and equitably in every sphere of life. In short, the commissioner could bring about a much-needed transformation in our mental health services. By establishing the role in statute, we would ensure that mental health would no longer be a topic that waxed and waned in its profile and importance within government and was reliant on either short-term interest or sometimes very hard-won attention.
Reflecting on the very important debate we had on reducing racial inequalities, I would consider that both assessing and taking action on inequalities in mental health would also be a critical role for the commissioner. Such a commissioner would be well placed to take responsibility for the oversight of a new responsible person role for addressing and reporting on racial disparities in mental health units at local level, as we discussed earlier in the debate on my Amendment 133.
We have an excellent example and model to follow in the way the Children’s Commissioner operates. From my extensive work on children’s issues over the years, I know how effective and influential that role has been, particularly during a period when there has been a change of Government. It has genuinely shifted the dial. I get the fact that it may not always feel 100% comfortable for the Government of the day, but they should embrace and welcome the additional scrutiny, ideas and recommendations that are based on engaging directly with people with lived experiences about their concerns.
That is certainly how it is happened with the Children’s Commissioner, who I think has done excellent work on children’s mental health. I know that it has proved to be empowering for children and young people to feel that their voice is being heard at the top table. I want that same opportunity to be in place for people with mental illness. It has the potential to make this Act a truly ground-breaking piece of social reform.
Mental health commissioners already exist in a number of international jurisdictions, including Scotland, Ireland, Canada, New Zealand and Australia. There is some helpful research from the Centre for Mental Health that shows the value of such roles in other countries.
I feel I can already anticipate the Minister’s response. At Second Reading, the Minister said the commissioner might duplicate the work of the Care Quality Commission. I do not think that is the case, as their roles would be complementary, as the Children’s Commissioner complements the work of Ofsted. The functions of the two are clearly different: they have different powers and responsibilities that between them provide extra benefit to the public that could not be achieved by one of them alone. Both have the powers of entry to inspect services that work with children, but their roles and the outcomes they seek to provide are very different. The Children’s Commissioner has a wide advocacy role across the whole of government, as well as civil society more broadly, so they can act in a way that Ofsted cannot possibly do.
So I very much hope that the Minister will be willing to discuss this with me when we meet later this week and, indeed, with other noble Lords who have expressed support, to discuss how we can really make this fly. I beg to move.
Lord Bradley (Lab)
My Lords, I strongly support Amendment 131, to which, as my noble friend Lady Tyler has stated, I have added my name. I can be brief because of the eloquence and comprehensive nature with which she introduced the amendment.
First, to note my registered interests, as this is probably the last day of Committee, the establishment of a mental health commissioner was recommended by the Joint scrutiny Committee of which I was a member. So it was a great disappointment that the Government did not include it in the Bill.
As I said at Second Reading, the mental health commissioner should be a voice at national level, promoting the interests of those who are detained and who are likely to be detained under the Mental Health Act, together with the interests of their families and carers, raising awareness of their needs and challenging stigma and stereotypes. Crucially, the commissioner should be at the forefront of tracking and scrutinising the implementation of these reforms.
There is widespread support for the establishment of the commissioner, both inside and outside Parliament and from statutory, non-statutory and charitable organisations. For example, the Centre for Mental Health, for which I am an ambassador, has stated:
“A Mental Health Commissioner … would offer sustained leadership for mental health—complementary to existing roles and structures in government. They would operate both within the machinery of state and in the media and wider public sphere. They would have influence within government and the NHS, but with the freedom to speak out when necessary: to lead public debate, challenge stigma, and break boundaries and taboos”.
I totally agree with this view. However, in reply to this proposal at Second Reading, supported by many noble Lords, the Minister pushed back on it stating that there are concerns that
“the proposed mental health commissioner’s function would be potentially largely duplicative of existing bodies and functions, and nobody wants to risk diluting accountability or causing confusion”.
The Minister went on to say:
“As noble Lords will know, Dr Penny Dash has been asked by the Secretary of State to assess if the current range and combination of organisations within the healthcare regulation landscape is effective and to make recommendations of what might be needed, and I think it is important that we await her recommendations”.—[Official Report, 25/11/24; col. 584.]
The key word here, I think, is “regulation”, and I do not agree with this view.
Since Second Reading, I have looked at the terms of reference of commissioners and regulators in various areas of public policy, and I believe that these roles are quite distinct. I agree with the noble Baroness, Lady Tyler: the role of the Children’s Commissioner and the separate role of the education regulator Ofsted are a good comparison. I do not think these two roles dilute accountability or cause confusion. Further, I cannot remember if it has ever been suggested that these roles should be amalgamated or that the Children’s Commissioner should be abolished. In fact, I believe that there is widespread support, particularly from the public, for the invaluable independent work undertaken by a Children’s Commissioner.
I also think the Minister herself has made a very persuasive case for a mental health commissioner in her many constructive responses to the amendments already debated, especially today. My noble friend has noted, among other things: the complexity of the legislation and its interrelationship with the Mental Capacity Act 2005, the need for significant investment in community services, the development of a skilled and complex workforce, and the number of years it will take to implement all the provisions of the Bill. This will need rigorous, robust and consistent oversight of implementation and wider health policy and service developments over the next decade and beyond.
The establishment of a mental health commissioner will ensure transparency and accountability and introduce a real force for good for the development and delivery of high-quality mental health services across the country. I hope the Minister will now agree and support this amendment.
Baroness Bennett of Manor Castle (GP)
My Lords, in following two such eloquent contributions, I can be extremely brief. I thank the noble Baroness, Lady Tyler, for what is clearly a major piece of work in producing this amendment. I attached my name to it because the creation of a mental health commissioner is such an important issue that it was crucial that there was a demonstration of support that was as wide as possible—a full slate of support here, even in Committee, as I am sure there will be should this come back on Report, unless the Minister says it is a great idea and she is going to go ahead with it right now.
I will add one other point of comparison, on something with which I have been a little involved myself: the comparison with the Patient Safety Commissioner. Noble Lords will remember that a case for the Patient Safety Commissioner was made from the then Government Back Benches, by Lady Cumberlege. She spent a couple of years fighting to finally get a Patient Safety Commissioner. We have seen the work that the Patient Safety Commissioner has done since the creation of the post: we have seen some very specific, detailed work on the issues of vaginal mesh and sodium valproate. Digging into the details and supporting a fight to get something done are really something that only these independent commissioner positions can do. Otherwise, very often, it falls to severely underfunded NGOs and perhaps to Members of Parliament who are enlisted in a cause but have many other calls on their time and resources as well.
We have discussed again and again how difficult it will be to bring this Bill into effect and, as the noble Baroness, Lady Tyler, said, to address the issues of discrimination and inequality that we know are already there. This is surely an absolutely obvious thing to do to help ensure—as so many noble Lords have been saying today and previously in Committee—that we get this done.
Lord Kamall (Con)
My Lords, before I begin my remarks, I want to say how pleased my noble friend Lord Howe and I are to see the noble Baroness, Lady Hollins, back in her place; I am sure that many noble Lords would echo that sentiment.
I thank the noble Baroness, Lady Tyler of Enfield, for moving this amendment to establish a statutory mental health commissioner. One of the motivations behind some of the amendments in my name and that of my noble friend Lord Howe is to probe the Government on those recommendations from the pre-legislative Joint Committee that did not make it into this draft Bill. As noble Lords will be aware, and as the noble Lord, Lord Bradley, has said, this is one such recommendation of the Joint Committee that did not make the cut.
We did consider tabling a similar amendment ourselves, but I have to admit that the amendment from the noble Baroness, Lady Tyler, did the job very well; there was no need to duplicate that. Having spoken to the noble Baroness and to her noble friend Lord Scriven, I know this is an issue that they and many other noble Lords feel passionate about. The noble Baroness, Lady Tyler, has today made a very good case for a commissioner. The noble Lord, Lord Scriven, has also spoken of the need for central co-ordination to ensure implementation of the provisions of this Bill—something that was referred to in the last group of amendments.
I pay tribute to the noble Lord as I know that he has considerable experience in the NHS and is all too aware of the problems involved in trying to deliver at scale. However, I admit that I have some reservations about the idea of a mental health commissioner. While I understand the arguments in favour, I am, like the Minister, concerned about the creation of a new bureaucracy that could possibly duplicate functions.
In their response to the recommendations of the Joint Committee, the previous Government noted that
“the government does not believe that a statutory mental health commissioner would add significant value within the framework currently provided by existing bodies”.
The Joint Committee pointed out that a Mental Health Act Commission was established by the Mental Health Act 1983, which stood alongside the Healthcare Commission and the Commission for Social Care Inspection. In 2009, the then Labour Government took the decision to combine these three bodies into one integrated regulator with responsibility for all health and adult social care. I say that not as a political point but as an observation.
Since then, the CQC has undertaken the functions of the previous Mental Health Act Commission, and its remit extends to ensuring protections for those who are detained under the Act or subject to a community treatment order. To do this, the CQC has a number of Mental Health Act reviewers, who can visit patients in hospital and raise concerns about treatment or detention with managers, and then report back to the commission. The CQC also has a dedicated team that assesses complaints about the use of the Mental Health Act, including issues around detention and the use of CTOs.
I also understand that the CQC provides second-opinion appointed doctors for patients who do not have the capacity to consent to treatment under Part 4 of the Act. This Bill strengthens the safeguards around second-opinion appointed doctors, such as creating a clinical checklist that must be certified by the second-opinion doctor.
In addition to the functions of the CQC, local authorities and ICBs provide independent mental health advocates; we have debated those in earlier groups. The Department of Health and Social Care also gives funding to local authorities to commission Healthwatch services, of which I understand there are about 152 across the country. Healthwatch is another statutory organisation that gathers feedback from the users and ensures that NHS leaders listen to and, hopefully, incorporate that feedback.
As we have seen, the Parliamentary and Health Service Ombudsman, alongside the CQC, supports individuals to raise complaints against the private sector, the NHS and all public health authorities.
The point I am trying to make is that there appears to be a plethora of services and public bodies that work to oversee the function of the Mental Health Act and try to ensure that patients have a voice in their care and treatment. While I appreciate that some of the proposed duties of the commissioner would be unique to that role, there appear to be elements of duplication in that role and those of existing public bodies. However, I am also conscious of the point made by the noble Baroness, Lady Tyler, about being complementary.
So, while I hear the arguments on both sides, I am still slightly sceptical about whether we need a stand-alone mental health commissioner. To be fair, we have not completely made up our minds yet, and my noble friend Lord Howe and I are weighing up the arguments. For that reason, I ask the Minister to help these deliberations by clarifying a few points. First, will she confirm whether the CQC will take on the role of implementing the provisions of the Bill? Perhaps more importantly, how will it be able to fulfil that function effectively, given the concerns expressed by the noble Baroness, Lady Tyler, the noble Lord, Lord Bradley, and others and their strong feeling in favour of an independent mental health commissioner?
What action will the Department of Health and Social Care take to ensure oversight of the CQC’s role in the implementation of this legislation? If the Government remain opposed to the creation of a commissioner, can the Minister reassure your Lordships on how existing bodies will address the Bill’s implementation and accountability for its implementation, without the need for a stand-alone mental health commissioner?
I hope the Minister is able to give these assurances. Otherwise, given what was said today by other noble Lords, I am sure we will come back to this issue on Report.
Baroness Merron (Lab)
My Lords, I am grateful to the noble Baroness, Lady Tyler, for tabling Amendment 131, supported by the noble Baronesses, Lady Bennett and Lady Murphy, and my noble friend Lord Bradley. As noble Lords are aware, I understand the intent behind the amendment. We have carefully considered the proposed functions of the commissioner that it outlines, and we recognise that improvements are needed to ensure that the system works effectively. But as noble Lords are aware, we do not feel that a new body is the answer. As the noble Lord, Lord Kamall, said, it may only duplicate existing functions, rather than providing the clarity and leadership that I know everyone is seeking. I was particularly interested to hear the noble Lord give his reflections on the opinions of the previous Government about a proposed mental health commissioner.
Overseeing implementation of the reforms is the role of the Department of Health and Social Care, working with NHS England, the Ministry of Justice and the CQC in England, and, in Wales, with the Healthcare Inspectorate Wales.
On the interaction between this legislation and the Mental Capacity Act, we are committed to keeping that under close review to minimise challenges potentially faced by front-line professionals.
The annual report by the commissioner proposed in the amendment would overlap with the CQC’s annual Monitoring the Mental Health Act report. The CQC’s annual statutory reporting reflects the views of thousands of patients interviewed each year by the CQC. Many of the issues that the commissioner would assess and report on, such as the accessibility of advice and the quality of services, are already reported on by the CQC.
It is proposed that the commissioner would examine cases of people detained under the Act. This clearly overlaps with the functions of the CQC and Healthcare Inspectorate Wales, which have a statutory duty to monitor and, where appropriate, to investigate. The Act provides the regulator with similar powers—for example, to gather information to support it in exercising these powers.
The Health Services Safety Investigations Body is responsible for conducting independent investigations into patient safety concerns across England to identify ways to improve mental health care and patient safety. It has just concluded a series of investigations into in-patient mental health care and is currently undertaking further work.
With regard to the proposed commissioner’s general powers, it is the Government’s role, with NHS England, to ensure sufficient capacity and resources in the system. It is the role of NHSE’s national director for mental health and the medical director for mental health and neurodiversity, newly established last year, to oversee and take forward improvements to mental health services. It is already the role of the regulator to safeguard the rights and welfare of patients, while other organisations independently investigate complaints.
Minimising duplication with these organisations and functions would require significant remodelling of the system, interrupting ongoing programmes and responsibilities that are important to the smooth delivery of the Mental Health Act reforms. Having said that, we recognise that improvements need to be made in the quality of care and the patient safety landscape. We are committed to that goal and intend to overhaul the healthcare system to make it better for all patients.
The CQC has already begun to implement the recommendations made by Dr Penny Dash and Professor Sir Mike Richards: a new chief inspector for mental health will use their independent voice to amplify and respond to the experiences and outcomes of people who use services. Implementation of Mental Health Act reform will be at the top of their “to do” list.
On the wider landscape, we expect to hear soon from Dr Dash who, as noble Lords have said, is reviewing the broad range of organisations that impact on quality and safety, many of which I have mentioned today, and is due to report on whether greater value could be achieved through a different delivery model.
Reference was made in the debate to the role of the Children’s Commissioner, which the noble Baroness, Lady Tyler, particularly focused on. I want to place on record my gratitude to the Children’s Commissioner for the work done on children’s mental health. But, in reflecting on the debate earlier, I should say that the Children’s Commissioner is operating in a rather difference landscape. The proposed mental health commissioner would have a much narrower purview that, for the reasons I have stated, risks overlapping with existing organisations in a way that the Children’s Commissioner does not. I understand why the Children’s Commissioner is being looked to, but I cannot draw that direct comparison myself.
The challenges we have heard about in this debate have highlighted areas we need further to focus our efforts on. I look forward to speaking to the noble Baroness, Lady Tyler, about this topic this week, and I am sure that I will have further conversations about it. For all these reasons, I ask the noble Baroness to withdraw Amendment 131.
Baroness Tyler of Enfield (LD)
My Lords, I thank the Minister for her response and thank other noble Lords for their support: in some cases, strong support; in others, what I can only describe as support up to a point—if you know what I mean.
The noble Lord, Lord Kamall, was right to say that we on these Benches feel passionate about this. We think it has the potential to make a real difference and transform not just mental health services at the crisis end—the detention end—but how the whole mental health landscape works.
I would just say in response that I am slightly surprised that the Government consider the current arrangements to be satisfactory. The Joint Committee clearly did not. It spent an awful lot of time looking into this and made a recommendation for a reason.
Baroness Parminter
“Notification of specialist eating disorder units having arrangements for special casesIn section 140 (Notification of hospitals having arrangements for special cases) of the Mental Health Act 1983, after “hospitals” insert “or specialist eating disorder units””Member's explanatory statement
This amendment seeks to extend the provisions related to the reception of patients in cases of special urgency and the accommodation of under-18s in specially suitable facilities which apply to hospitals under section 140 of the 1983 Act to include specialist eating disorder units.
Baroness Parminter (LD)
My Lords, this is a very limited amendment. It aims to prompt ICBs to ensure that there are adequate placements for those with severe eating disorders—both those who are sectioned and those who are not sectioned. There is a need for this because general acute mental health hospitals are not appropriate if we are going to ensure the best outcomes for people with eating disorders, and there are far too few beds out there at the moment.
Let us address that last point first. In the UK, at the moment, there are 450 adult beds—that is a combination of NHS and private beds—and less than half that number for children. However, last year there were 30,000 hospitalisations for people with eating disorders, which is a fourfold increase on 2010, when there were 7,000. This means that people are being placed in inappropriate settings, be that in general acute hospitals, the general hospital down the road, or in out-of-area placements. All of those will deliver non-optimal recovery rates and result in more costs in the long term to the country, as well as greater suffering for individuals and their families and carers.
It is pretty obvious to most people that eating disorders require specialist staff—it is not rocket science. People with very severe eating disorders, sectioned or otherwise, will often need nasogastric tube feeding, which is a specialist skill, and there will be issues around avoiding refeeding syndrome, along with the cardiac risk. It is very clear why there is a need for specialist staff. The APPG on Eating Disorders did a recent report on this, The Right to Health, which looked at why specialist eating disorder nurses are required. Those provisions are not in general mental health hospitals, or indeed in the general physical health hospital down the road. It is pretty clear to most people that you need specialist staff.
What is probably not so clear, if you are not familiar with eating disorders, is that the physical constraints of a general mental health facility are not appropriate or optimal for people with eating disorders. If you have a severe eating disorder, you need feeding six times a day. People who are very anxious about eating will need to be supervised, one to one, in a calm environment. That is not what you get in a general mental health facility. Those people will then need to be supervised, one to one, for a period after meals, to help them to keep that food, again in a calm and spacious environment where they can be managed one to one. Those individuals will all have diets, weekly prepared especially for them, which will require a specialist canteen. Not only will you need staff to facilitate the provisions of those meals but you will need an area where people with eating disorders can be helped over a period of weeks to refamiliarise themselves with preparing food and to not be anxious about touching or preparing food—so you will need a second kitchen. The provisions in a general mental health facility are not optimal for people with specialist eating disorders. The legislation as it stands asks ICBs to focus only on general mental health facilities.
I am not making the case that eating disorder sufferers are somehow special—please do not think that. I am just making the case that they are different. For too long, they have not had a focus on their needs, which is why we have so few eating disorder beds in this country at the moment. This is probably a very poor attempt, but it is my attempt to ensure that ICBs are given a gentle nudge by the Government to do what I think the Government want to do—which is to treat the majority of people with eating disorders in the community but, for those who require beds, ICBs must at the appropriate time ensure that there are such beds. We must not rely on general mental health facilities, which will not produce the outcomes that we need. I beg to move.
Baroness Browning (Con)
My Lords, I support the noble Baroness, Lady Parminter, on the particular point that she raises about eating disorders in her amendment and on a more general point.
In an earlier debate, I tried to make the case that people being diagnosed with autism by clinicians should be seen by clinicians who specialise in autism. I was reminded of this very much when the Minister, responding to an earlier amendment this afternoon, talked about parity of esteem in the health service between the physical health support provided and that for mental health. In the world of physical health, if you were to see an orthopaedic consultant, you would not necessarily see the same consultant, depending on the condition that you had. The same applies today with cardiology, whereby cardiologists now have more specialisms within that and you would therefore see the appropriate person. As raised by the noble Baroness, Lady Parminter, the facilities that go along with such specialised treatment and assessment are very important.
I put it to the Minister, prompted by the noble Baroness, Lady Parminter, and by the Minister’s own words, that it really is about time that, with regard to mental health as a generic term, whatever the condition, we stop—as they did even within my lifetime—locking people up in some old Victorian institution where they all get the same treatment, facilities and so on. Today, with our increased knowledge of mental health and of medication for mental health, and with the increased number of specialisms that we are now aware of, particularly around eating disorders, it is really about time, if there is truly to be parity of esteem, that mental health is treated as physical health is treated, and that the specialisms that occur and the specialists there to work within those specialisms are given weight within legislation so that facilities and specialists can be provided—because we know that they are not.
At the heart of the Bill before us is the fact that we are taking autism and learning disabilities out of the Mental Health Act 1983, in which they were all treated the same—lumped in together and treated by the same clinicians, whether they had a specialism in that area or not. This is a real opportunity for the Minister and the Government to make sure that there is true parity of esteem and that conditions such as eating disorders are respected and treated in the way in which they should be.
Baroness Butler-Sloss (CB)
My Lords, I remember a specific case of a friend’s 17 year-old daughter who was suffering from an eating disorder. She had to go into hospital, where she was not treated at all well; she was criticised for not eating—the very thing she had gone into hospital to get help for. She did not for quite some time get any specialised help on how to deal with her eating disorder. This amendment would deal with that issue.
Lord Kamall (Con)
My Lords, I thank the noble Baroness, Lady Parminter, for moving this amendment. Unlike in the last group of amendments, where there was limited support, we fully support her on this one. We know that the noble Baroness has tirelessly campaigned for better support for those with eating disorders. At Second Reading, she shared the experience of living with such disorders, and we all became much more familiar with some of the concerns. I also agree with my noble friend Lady Browning that it is about time we stopped treating all people with mental ill-health the same; we know that we have to look at it in far more granular detail.
The amendment speaks to the problems around the adequacy of provision of care for patients suffering with eating disorders. As the noble Baroness said, Section 140 of the Mental Health Act provides for reception of patients in cases of special emergency and the provision of accommodation and facilities suitable for under-18s, but it applies only to hospitals. I agree that there is a reasonable case to extend this to specialist eating disorder units. With that in mind, I hope the Minister will be receptive to this amendment.
Baroness Merron (Lab)
My Lords, I am grateful to the noble Baroness, Lady Parminter, for bringing Amendment 132 to your Lordships’ Committee, for raising this important issue, for sharing at Second Reading, as the noble Lord, Lord Kamall, said, her personal experience of her daughter’s treatment and for sharing her overall experience of the provision of services today. The noble Baroness, Lady Browning, made the important point about different conditions needing different provision and support. That was amplified by the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord.
Eating disorders are of course serious mental health challenges, and it is vital that those with them can access effective help quickly. We will continue to work closely with NHS England to improve access to the right and timely care and treatment for those with an eating disorder.
The purpose of Section 140 is to ensure that approved mental health professionals are aware of the services available to help them to locate hospital beds in special cases. The intention of the amendment is to extend the duty on health authorities to notify local authorities of arrangements for urgent cases and under-18s to include specialist eating disorder units.
Section 140 applies to arrangements for people who need in-patient treatment in a hospital. That includes specialist eating disorder units where they provide in-patient treatment in a hospital setting and are appropriate for someone to be detained in. Therefore, while I understand the points being made, it is not necessary to specify that Section 140 applies to specialist eating disorder units. I hope the noble Baroness will feel able to withdraw her amendment.
Baroness Parminter (LD)
My Lords, I am grateful to Members around the Committee who have shared my concerns about the need for proper provision for people with eating disorders. The noble Baroness, Lady Browning, rightly identified that there is a need for mental health provision to focus on the particular illnesses and to treat each appropriately.
I knew that my amendment would not be accepted; I was just desperate to find some way to raise this important issue, but I am grateful that my poor attempt has at least allowed for a debate in Committee and allowed me to share with Members a bit more about what it actually means if you are in a specialist eating disorder unit for a very long time. I would still love to see the words in the Bill, because every time ICBs and others think about provision for people with mental illnesses, including eating disorders, specialist eating disorder units should be in there, but I am not going to press the point either here or in the future. I am grateful for the support around the Committee, and I will keep trying to raise the issue whenever I can. With that, I beg leave to withdraw the amendment.
Baroness Tyler of Enfield
“General duty to secure sufficient resources for services in the community(1) It is the general duty of integrated care boards to ensure, insofar as is reasonably practical, that services in the community responsible for delivering care, treatment, or detention provisions under the Mental Health Act 1983 and this Act have the necessary resources, including financial support, to meet service demands.(2) Additional forms of resource may be determined by integrated care boards in consultation with relevant local authorities or health care service providers and may include—(a) sufficient numbers of trained medical professionals;(b) purpose-built facilities for patient care;(c) community services responsible for out-patient care.”Member’s explanatory statement
This amendment places a general duty on integrated care boards to ensure that services in the community have the necessary level of resource to meet demand on services to ensure that the provisions of the bill function as intended.
Baroness Tyler of Enfield (LD)
My Lords, yes, I am afraid it is me again. I thank my noble friend Lord Scriven and the noble Baroness, Lady Bennett, for adding their names to Amendment 134. Of course, we have already acknowledged in many of our debates that the provisions in the Bill rely heavily on strong and effective community provision being in place, but there are real concerns within the sector that community provision is not currently sufficient to support the changes set out in the Bill. In my view, the new duties placed on local authorities and integrated care boards to ensure an “adequate supply” of community support lack teeth, and no real accountability measures have been put in place as yet to ensure that this duty is fulfilled. My Amendment 134 would place a general duty on integrated care boards to ensure that services in the community had the necessary level of resource to meet demand for services.
This amendment is closely related to the amendments in group 1, already debated—indeed, I am not quite sure why this one was not included in that group; groups remain a bit of a mystery to me. It is worth noting that the Equality and Human Rights Commission recommended in its response to the Joint Committee that the Government should, in line with the recommendation of the independent review, ensure that there was
“sufficient, high-quality, appropriate, community-based mental health services and pathways to meet the needs of all adults, children and young people”.
It stressed:
“These should include therapeutic alternatives to detention, preventative support to minimise the risk of crisis, and wider community services that enable good mental health and recovery”—
something I will be returning to in a later amendment. Is the Minister able to say what consideration the Government have given to that specific recommendation?
The EHRC also felt that the Bill needed strengthening
“to ensure sufficient community-based services in practice in order to end inappropriate detentions. This was highlighted in the most recent annual review of the Mental Health Act by the CQC, which stated: ‘While we support the government’s objective to reduce hospital admissions for people with a learning disability and autistic people under the MHA, this can only be achieved by an increase in community support, including trained staff, and high-quality alternatives to admission’”.
I want to finish by focusing on the workforce aspect. Following the previous Government’s 2021 White Paper, the Royal College of Psychiatrists commissioned an independent assessment of the impact of the proposed changes on the psychiatric workforce to better understand how many additional psychiatrists would be required to deliver the reforms in the proposed year of implementation and, indeed, 10 years later. Based on that White Paper, the research found that by 2023-24, an additional 333 full-time equivalent psychiatrists would be needed in England, costing £40 million per year, and that by 2033-34, a further 161 full-time equivalent psychiatrists would be needed. While these figures may not necessarily accurately reflect the exact number of psychiatrists needed to deliver the reforms we are talking about in the Bill, or the current timelines for the legislation, they demonstrate clearly the impact on a workforce which is already understaffed and carrying high vacancy levels.
Back in March 2016, NHS England set a target to have an additional 1,040 consultant psychiatrists in post in England by March 2024. Based on these targets, as of July last year there was a shortfall of some 770 psychiatrists across England. That is a big shortfall. The impact assessment, while absolutely voluminous, is—as far as I can see—silent on where these people are going to come from. However, it estimates costs of around £99 million for alternative mental health care for people no longer admitted to hospital. It also estimates some £5.5 billion of savings from fewer overall admissions and fewer detentions for people with a learning disability or autism. It goes on to say that the benefits
“should not be understood as cashable”.
Can the Minister say what specific mechanism will be used for diverting more money into community services?
Psychiatrists are absolutely critical but are only one part of the wider mental health workforce, which also includes mental health nurses, clinical psychologists, mental health social workers, occupational therapists and others. Can the Minister say whether detailed plans to grow the overall mental health workforce will be contained in the 10-year plan and the upcoming spending review?
I am conscious that I have asked quite a lot of detailed questions, so if the Minister would prefer to write to me with her response, that is fine. I add that I am sympathetic to the aims of Amendment 157 in the name of the noble Lord, Lord Davies. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to again follow the noble Baroness, Lady Tyler of Enfield, and offer support to her. I will be very brief because there has already been a comprehensive introduction.
It is useful to draw a comparison to see how we might look at some kind of composite as we get towards Report. This amendment places a general duty on integrated care boards to ensure that services in the community have the adequate levels of resource, which is why I signed it, but who gives the resources to the integrated care boards? Ultimately, it is the Government.
My earlier amendment sought a regular process of reports and parliamentary oversight, and I suggest that we need both. This is a good, strong amendment to give the duty to the ICBs. But we also need to see that there is the oversight and that ICBs have the capacity to support the duty they are being given.
Lord Davies of Brixton (Lab)
Amendment 157 in my name seeks to clarify the responsibilities of integrated care boards and local health boards to find beds in a timely manner for patients admitted under Section 140 of the Mental Health Act.
This amendment goes to the heart of why we have the Bill in the first place. In large part, the practical problems experienced in obtaining proper care for people led to the introduction of the Bill, Sir Simon Wessely’s review and the work of the Committee. It reflects an important aspect of the transformation that has taken place in the understanding and treatment of mental illness. It reflects the importance of timely and effective care for people experiencing a crisis in their mental health. The Bill seeks to fill in gaps in mental health care, which can mean the difference between rapid intervention and needless delay.
My amendment to Section 140 is both necessary and overdue. It would place a clear responsibility on every integrated care board and local health board to ensure that patients who are assessed as requiring hospital admission under the Act receive it in a timely and appropriate manner. To that end, it mandates a clear line of responsibility by requiring the appointment of a designated officer charged with overseeing that these admission arrangements, as outlined in the Act, are not only established but function effectively on a day-to-day basis. This is not a mere administrative adjustment; it is an important change, aimed at addressing real world issues that affect the lives of countless individuals. Mental health crises occur without warning and do not adhere to schedules or bureaucratic timelines.
The local health boards and integrated care boards are the crucial link between community services and hospital care. Placing a clear statutory duty on these organisations will create a clear line of responsibility to ensure that no patient is left waiting whenever immediate care is needed. The appointment of a designated officer will further enhance accountability and operational efficiency. To emphasise the point, an individual with the specific responsibility of overseeing these arrangements will provide a robust mechanism to promptly address any issues that arise and to ensure that every patient’s admission is swift and appropriate.
It is important to understand the broader implications of this amendment. Timely admission to hospital is not merely a procedural matter; it is a critical component of effective mental health care. Early intervention can mean the difference between a manageable crisis and a catastrophic decline in a patient’s condition. By ensuring that patients are admitted promptly, we will invest in early treatment, reduce the likelihood of complications and, ultimately, alleviate the burden on our healthcare system. This proactive approach will lead to improved outcomes for patients, greater satisfaction among healthcare professionals and a more sustainable model for mental health service delivery.
To conclude, my amendment is a necessary step forward. It would provide clarity, reinforce accountability and ensure that our mental health system remains responsive and effective. I urge my noble friend the Minister to respond positively to my amendment, not merely as a change in policy but as a commitment to the well-being and dignity of every individual who depends on our mental health services.
Baroness Ramsey of Wall Heath (Lab)
My Lords, I rise to support Amendment 134. I hope I get the etiquette right, as this is my first contribution in Committee. I know noble Lords will put me right if I get it wrong.
People with learning disabilities and autism are generally detained because insufficient community support is available to keep them and others safe. Amending the Mental Health Act to prevent them being detained under its provisions will therefore be ineffective unless it is accompanied by serious investment in such support. In fact, without such investment it could actually be worse for people with learning disabilities and autism: if the community support is not available, doctors and social workers will inevitably look for other ways to keep them safe. They might be tempted to use the Mental Capacity Act in some cases, thereby taking away almost all agency and rights, not just those in respect of treatment, or to get the police and prosecutors involved in response to challenging behaviours, simply because the involvement of the criminal justice system means they can still use detention under the amended MHA. What an irony it would be if amendments to the Mental Health Act designed explicitly to reduce detention actually led to worse forms of detention.
Amendment 134, which would require integrated care boards to ensure that resources are made available to secure the necessary community support, is absolutely vital for the Bill to be effective. I mention here, as it is relevant, that I support the spirit of Amendments 163 and 164 in the names of the noble Lord, Lord Stevens of Birmingham, and others. If the necessary investment is made by integrated care boards, the future for people with learning disabilities and autism could be so much brighter.
I have seen what a wonderful difference this approach can make. I will never forget my work visit, in relation to children and young people with learning disabilities and autism, to a state special school in the London Borough of Islington—part of the Bridge Trust for youngsters with severe learning disabilities and autism, among other special needs—and seeing how well supported they were by integrated teams of social workers and health and education professionals. I asked the chief executive officer, Dr Penny Barratt, who had set the school up, how it started. She told me that she had been listening to the news one day and heard a report about a boy with autism whose behaviour was so challenging that he was being held down by seven people in A&E. Her background as a special needs teacher meant she knew that the next step for him was bound to be long-term, segregated detention. She was inspired in that moment to do something about it. The special school was born and, wonderfully, that young man became one of its pupils. His needs were as great as ever, with no language, but expert care and support from loving professionals meant that he was having a fulfilling life in a room with other pupils—with no detention and no segregation. Let us legislate to make it clear that this is the sort of future that we want to see for all such young people.
Baroness Hollins (CB)
In adding my support to these amendments, I welcome particularly the contribution from the noble Baroness, Lady Ramsey.
This debate has emphasised why the pathway of care, from the community through to any kind of hospital admission and discharge, must be considered as a whole. It is not okay to separate bits off. That is why the amendments are so important: unless we put provision in place to make sure that, when admission is necessary, it is timely and to a place which has the skills to provide the therapeutic care that people require, detention and admission will in fact be longer and costlier. We cannot contemplate making legislation that does not take account of the whole patient pathway.
Lord Stevens of Birmingham (CB)
I have been inspired by the previous two contributions. I will briefly pick up a point that the noble Baroness, Lady Tyler, made about Amendment 134 on the availability of community services, particularly psychiatrists. I think the Minister referred to the longer training times for psychiatrists and other mental health professionals as one of the rate-limiting factors that would affect the speed with which the measures in the Bill could be implemented.
I have a request for the Minister. It is quite hard to tease out from the impact assessment what the Government think the incremental requirements for psychiatrists will be, year by year, over the implementation period. In fact, slightly perversely, they use mixed currency: the Minister responded, rightly, to Amendment 163 by saying, I think, that there was a requirement for 400 additional psychiatrists for the second opinion service; but when you look at the table in the impact assessment, it turns out that that is a headcount number driven by a number that is not a whole-time equivalent. However, for all the rest of the workforce, a whole-time equivalent number appears to be shown.
It would be good to nail down what the incremental requirement will be for psychiatrists, year by year and on a whole-time equivalent basis, so that between now and Report, colleagues can consider what the ramifications of that might be for a backstop on implementation. If that incremental requirement could be juxtaposed with what the Government think the organic increase will be in the number of psychiatrists over that period anyway, driven by the already published NHS workforce plan, that would be supremely helpful.
Baroness Barker (LD)
My Lords, I will try to draw together some of the strands that we have been discussing in this debate. When the Minister responds, please will she share with the Committee the department’s and the Government’s thoughts on workforce planning and the modelling they use for the prediction of demand?
As I listened to my noble friend Lady Parminter eloquently introduce her amendment, it brought to mind friends of mine. They have been in the position where their child was diagnosed with a very severe eating disorder, but they were told, “You are not sufficiently ill for anything to happen”. From that stage, nothing happened. If it were a physical illness, there would be some kind of process—although maybe not a care pathway. I am sorry, but I am one of those people who is very cynical about the use of the phrase “care pathway”; it is very overused throughout the whole of health, and particularly in mental health. People are diagnosed and then are just left, until they become so ill that they are in crisis and it is impossible to ignore them. We have seen the trends in the number of young people with eating disorders, which my noble friend Lady Parminter mentioned. What is the department doing to forecast the demand for specialists of that nature in future?
I want also to return to some of the conversations and debates that were sparked by the noble Lord, Lord Davies of Brixton. We know that the police are going to withdraw from being the first responders when people are in crisis. What modelling are the Government doing in terms of the community provision that is needed to deal with those people—who will still be in crisis? They are not going to stop having crises; in fact, they are probably more likely to show up in in hospitals than ever before, because that is where people go in the middle of the night when they have a crisis.
This is the sort of argument that the noble Baroness, Lady Tyler of Enfield, was trying to get to in her discussion of having a mental health commissioner. Who will be the person who is in a position to take the Government to task for their planning and preparation for demands on the health service in the future? That is the kind of thing that we are trying to get to, and which all of us, in various different ways, have been trying to get to all afternoon.
Baroness Hollins (CB)
Can I just say that I did not talk about a “care pathway”? Perhaps I should have said the “patient journey”, but I was talking about the patient pathway—the actual experience of the person—which is not separated in their life.
Lord Kamall (Con)
My Lords, I will be brief on this one. I thank the noble Baroness, Lady Tyler, for this amendment and thank all noble Lords, who made very valid points.
Clearly, this is another sensible proposal, highlighting as it does the importance of making sure that the ICBs commission sufficient mental health services in the community to meet the demand for them. As the noble Baroness, Lady Barker, said, where will people go in the middle of the night? I know that we will come back to some of these issues when we discuss the group on mental well-being but I thought it was important that those points were raised now.
The Committee may remember that this was the subject of Amendment 139 in the name of my noble friend Lord Howe, who spoke to it on the second day in Committee. The main difference between those amendments is, I think, that the noble Baroness, Lady Tyler, wishes to get ICBs focused on this very important task as soon as the Bill becomes law—and I agree with her intention on that. My only fear around the wording as it is currently drafted—I recognise that it is a probing amendment—is that
“insofar as is reasonably practical”
may provide an excuse, or, as we say, the proverbial long grass into which this duty could be conveniently kicked. I look forward to the Minister’s response.
Baroness Merron (Lab)
My Lords, I thank noble Lords for their contributions on both these amendments. I turn first to Amendment 134 in the name of the noble Baroness, Lady Tyler, and spoken to by my noble friend Lady Ramsey and the noble Baroness, Lady Barker, both of whom shared real-life examples to illustrate what is being spoken about here.
This duty to consider mental health needs, as well as the needs of those with a learning disability and autistic people, in the community as well as in hospital is already covered by ICBs under the National Health Service Act 2006, as amended by the Health and Care Act 2022. An ICB must arrange for the provision of services to such extent as it considers necessary to meet the reasonable requirements of the people for whom it has responsibility.
ICBs and their mental health trusts are also required to prepare a joint forward plan that describes how the ICB will arrange for NHS services to meet its population’s physical and mental health needs, and the needs of those with a learning disability and autistic people.
On the general point with regard to the long-term workforce plan, which the noble Baroness, Lady Barker, mentioned, it will report in a few months’ time, later in the year, which I hope will give a lot more substance to answer the kinds of questions that are being raised. The noble Lord, Lord Stevens, asked about incremental requirements for psychiatrists on a year-by-year and whole-time-equivalent basis. I say to the noble Lord that the impact assessment sets out our best estimate at this point, but the plans need to be seen as somewhat iterative. With regard to further specific questions, including those raised by the noble Baroness, Lady Tyler, I will indeed be glad to write.
Turning now to Amendment 157, in the name of my noble friend Lord Davies and spoken to by the noble Lady Baroness, Lady Bennett, as we have already discussed in relation to Amendment 134, there is already a duty on ICBs to provide sufficient hospital and community services under the National Health Service Act 2006. Furthermore, chapter 16 of the Mental Health Act code of practice already states that local authorities, NHS commissioners, hospitals, police forces and ambulance services should have local partnership arrangements in place to deal with people experiencing crises in mental health.
We accept that there are issues with bed capacity and patient flow, as referred to by the noble Baroness, Lady Hollins. I will resist using the term “patient pathway”, but I certainly agree that they are part of what happens to a patient and they are indeed linked—whatever form of words we choose to use. That is why, in the recent NHS planning guidance, we have tasked local systems with reducing the length of stay in mental health wards and have committed £26 million to improve mental health crisis care, with a further £75 million to reduce inappropriate out-of-area placement. All this is already in train and does not suggest a requirement for primary legislation. So, for these reasons, I ask that the amendment be withdrawn.
Baroness Tyler of Enfield (LD)
My Lords, I thank the Minister yet again for her response. We have had a number of discussions so far this afternoon in this broad area, and indeed, as was alluded to, on previous Committee days. They are interrelated, so it is sometimes hard to separate the individual groups. I think at the very heart of all of our discussions is concern about two things: first, how we ensure that there is sufficient provision within the community to provide the sorts of services we all hope to see and which are fundamental to the successful implementation of the Bill; and, secondly—I think this came out very clearly—the need for really good workforce planning and understanding it on a year-by-year basis.
I was encouraged to hear from the Minister that we can expect to see the long-term workforce plan—I think she said—in a few months’ time. I very much look forward to that. I hope it includes some of the workforce planning and modelling of community provision that my noble friend Lady Barker referred to, and I hope, above all things, that it is slightly clearer than the impact assessment, which, I have to be honest—it may just be me; it might have been late at night when I was looking at it—I found somewhat on the opaque side. I am really hoping for greater clarity when we see the long-term workforce plan. This issue is not going to go away. In what form we return to it at Report, I am not quite sure, but, for the moment, on that basis, I beg leave to withdraw the amendment.
Lord Davies of Brixton
“Mental Health Crisis Breathing SpaceAny person detained under sections 3, 37, 41 or 47 of the Mental Health Act 1983 must be offered support from the mental health crisis breathing space debt respite scheme.”Member’s explanatory statement
This amendment ensures that MHCBS, a debt respite scheme, is offered and available to patients detained under sections 3, 37, 41 and 47 of the Mental Health Act 1983.
Lord Davies of Brixton (Lab)
In moving Amendment 135, I am grateful for the support of the noble Baronesses, Lady Tyler of Enfield, Lady Bennett of Manor Castle and Lady Neuberger, and I will be a little disappointed if I do not get some support from the noble Lord, Lord Kamall.
This amendment would require that the established and successful procedure, the mental health crisis breathing space, is offered automatically to those detained under longer-term Sections of the Mental Health Act. This is the final one of a set of three amendments to the Mental Health Bill in my name that have addressed the financial implications for people who struggle with their mental health. In these debates I have previously referenced that I am on the advisory board of the Money and Mental Health Policy Institute. This amendment is based on the institute’s work.
I thank my noble friend the Minister for her engagement on my Amendments 59 and 121, which sought to ensure that routine enquiries on financial matters are embedded in care and treatment plans and advance choice documents. I am grateful for the Minister’s acknowledgement and understanding on these issues.
Amendment 135 calls for mental health crisis breathing space to be automatically offered to those detained under Sections 3, 37, 41 or 47 of the Mental Health Act. Of the three amendments in this set on financial issues, this one perhaps has the greatest scope for reducing the financial harms that people experience when they are facing a mental health crisis. The mental health crisis breathing space mechanism is a vital tool that can protect people in a mental health crisis from the impacts of problem debt by pausing enforcement action and contact from creditors, and freezing interest and charges on any debts. These protections are provided for as long as the treatment lasts—plus another 30 days.
When people access this scheme, it can be life-changing. It can be the difference between people leaving hospital after a mental health crisis to find that bills and debts have escalated, thus putting their recovery in jeopardy, and having the space that they need to get back on their feet. I share the words of one of the Money and Mental Health Policy Institute’s research community members who has personal experience of accessing the scheme:
“Breathing space … has totally changed my experience from feeling hounded and persecuted to supported and valued”,
taking away
“much fear and sleepless nights coupled with dire days of depression”.
However, in its current provision, use of the scheme is significantly below its potential and the numbers that were forecast by the Government. When introducing the scheme in May 2021, the Treasury anticipated that 27,000 people would use it in its first year. Yet the most recent figures from last November show that only 4,404 people have accessed it in total. This underutilisation is due not to a lack of demand or need but to how the scheme is designed and delivered.
Existing NHS guidance on acute in-patient mental health care already states that wards should offer mental health crisis breathing space to those who need it. This is well-intentioned but does little to drive take-up of the scheme. In practice, thousands of people who would benefit from the support of this tool are missing out simply because nobody asks. On top of this, awareness of the mechanism is extremely low among mental health care professionals, meaning that, even when financial difficulties are spotted, it does not always result in people accessing the protections that the mechanism affords.
My proposed addition to the legislation would ensure a statutory obligation to offer this mechanism to those who need it most, requiring services to be more thorough in its implementation, with greater levels of accountability. Specifically, automatically offering the breathing space to people detained for potentially longer-term conditions would ensure that those whose incomes are likely to be adversely impacted by extended admissions can be supported. This intervention would target the core group that the mechanism was intended for.
To outline the possible reach of such a targeted intervention, in 2023-24 there were almost 11,000 detentions under the relevant Sections of the Act, representing a fifth of all detentions. Formalising the automatic offer of mental health crisis breathing space to this targeted group would go a long way towards ensuring that the mechanism supports the number of people that the Treasury forecasted it to serve. Crucially, after the breathing space period has ended, people would have the opportunity to be offered formal debt advice, with specialist support for those who need it, to ensure that financial difficulties are resolved on a longer-term basis. Legislating for the scheme to be automatically offered to those detained under the longer-term provisions of the Act would be genuinely transformative in preventing more people from experiencing the acute financial harms that too often accompany a mental health crisis. I beg to move.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a great pleasure to follow the noble Lord, Lord Davies of Brixton, and to offer the strongest possible support. These are issues that the noble Lord and I—the noble Lord very much in the lead and me following along in support—have engaged with on financial services and markets Bills previously. They are crucial issues for people’s well-being and the well-being of our whole society.
The noble Baroness, Lady Hollins, was talking on the last group about the patient journey. For someone who has become ill, who is seeking treatment and who has the weight of debt sitting on their shoulder, it is worth thinking about how damaging that weight of debt can be to the whole experience of the patient journey. It is worth thinking about how this interacts with issues around discrimination and unequal outcomes that we have looked at regarding other parts of the Bill in terms of the intersectional pressures that people can experience.
In preparing for this, I was looking at the middle of last year and mental health awareness week. The Women’s Institute was focusing particularly on the impact of energy debt, and 14% of the people in the study were at that stage in debt to their energy suppliers. Nearly a third said that they were worrying seriously about this. A fifth said that they had suffered sleepless nights. For the people who are suffering under debt pressures—single parents, very often women, or people from disadvantaged communities that are already economically disadvantaged—all these things feed in together. This is simply a measure for that. “Breathing space” is so evocative of the sense of taking off that pressure and allowing people the chance to focus on their own recovery and their own treatment, rather than just worrying away about that debt. I cannot see why the Government, or why anyone, would oppose this very modest measure.
Baroness Neuberger (CB)
My Lords, I should have declared interests before, as chair of University College London Hospitals NHS Foundation Trust and of Whittington Health NHS Trust. I also was a vice-chair of the review of the Mental Health Act, which reported in 2018 and is relevant, because I very strongly support this amendment to which I have added my name. It is something that the review did not address. We should have done. We did not have it raised sufficiently strongly with us by service users to whom we talked a great deal. That was an omission. It is very important that we do this. I hope that the Minister can say that this will be included in the legislation in its final form, and that she will accept this amendment or something redrafted along its lines.
I am very grateful to the wonderful Money and Mental Health Policy Institute—I pay full tribute to the noble Lord, Lord Bradley—for its briefings. When, in 2022, it conducted a piece of research looking at the finances of 200 people who had received care from secondary mental health services, it found that, quite unsurprisingly, a majority of the people who responded had experienced an income drop while receiving support from mental health services and struggled to pay their mortgages or for food, or missed a payment on energy, rent, council tax, or whatever it might be. This was a problem that kept coming back and they kept talking about. But the majority also expressed real support for the idea of making plans, ahead of time, for how to deal with their finances and how this would all be managed when they were unwell, as many people have episodic periods of being unwell. It seems to me that that piece of work is a cast-iron argument in favour of using breathing space to tackle these financial issues. I very much hope that the Minister will be able to support this.
Baroness Tyler of Enfield (LD)
My Lords, I rise very briefly to add my support to this amendment. I have been very pleased to add my support to all three of the amendments that the noble Lord, Lord Davies, has tabled in this area of financial inclusion. I remind your Lordships’ Committee of my interests as a member of the Financial Inclusion Commission and president of the Money Advice Trust.
I have always been a strong supporter of breathing space. It is a really important debt respite scheme, which has made a huge difference to the lives of many people struggling with debt. The idea of automatically offering this to people who are detained under the Act is absolutely the right thing to do. There is just so much evidence about the links between people spiralling into mental health crises and then into financial crises, which makes their recovery so much harder. I was pleased to hear the noble Lord, Lord Davies, talk about the sort of debt advice which might also then be available.
Everything that needs to be said about this amendment has already been said, so I underline my support for it and, like other noble Lords, very much hope we might hear some encouraging words from the Minister.
Baroness Watkins of Tavistock (CB)
My Lords, I very much support this amendment and do so for an additional reason to those already given, which is that it will reduce the time staff have to spend discussing debt with severely ill people in a time of crisis. One thing we need to do is improve productivity in the health service—I declare my interests in relation to that—and free up clinical staff to really support patients. I believe that this intervention would actually enable that.
Lord Kamall (Con)
My Lords, in speaking to this amendment, I pay tribute to the work of the noble Lord, Lord Davies, in raising this issue in this House and through his work with the Money and Mental Health Policy Institute. The noble Lord, Lord Davies, said he hoped that he would get my support; I can assure him of that. Today, and in previous groups of amendments related to advance choice documents, the noble Lord spoke powerfully about the need to understand the link between financial problems and mental health problems. It also reminded us that while this may not be seen as a priority for people detained under the Mental Health Act, it is not difficult to imagine why they might neglect their personal finances—obviously, not their first priority. During this time, their bills will not be paid, debts will grow, and this could lead to debt collectors or bailiffs being called in, making the situation far worse.
I was particularly struck by the personal testimony that the noble Lord, Lord Davies, read out, in the earlier group of amendments, from the person who was helped by the Money and Mental Health Policy Institute, about not being asked whether there was anyone who could open their mail and keep on top of their day-to-day living. For them, as the noble Lord told us, it was a spiral of going in for treatment and coming out to find that their finances were in a bigger mess than before. What would that do to someone who was suffering from mental health issues? It was a bigger mess, leading to terror, shame and guilt, and in fact it undid the work of the treatment that they originally went in for. Also, as the noble Baroness, Lady Bennett, has said, the phrase “breathing space” is very evocative of what we are asking for here.
It is worth repeating that this amendment does not require health and care professionals to offer financial advice. We are not asking them to be financial advisers or to deal with issues that they are not experts in. It is about empowering them to identify people in need and refer them to the appropriate existing support. As the noble Baroness said earlier, this will improve productivity and save all that time that would be wasted. It need not cost much money, or indeed any money in some cases, but could save the patient from financial and mental distress and save taxpayers’ money. For this reason, we are supportive of this amendment.
Baroness Merron (Lab)
My Lords, I am grateful to my noble friend Lord Davies of Brixton for raising what is a very real issue, among many we are debating today in Committee. I thank him for Amendment 135, supported by the noble Baronesses, Lady Bennett, Lady Neuberger and Lady Tyler, and spoken to by the noble Baroness, Lady Watkins, and supported by the noble Lord, Lord Kamall. I certainly agree that breathing space can indeed be what could be described as a lifebelt for people in problem debt, especially where this is worsening or is indeed a trigger for their mental illness, as my noble friend Lord Davies spelled out and the noble Lord, Lord Kamall, endorsed.
Individuals who are detained in hospital for assessment or treatment under the Mental Health Act are eligible for this scheme, as are those receiving crisis treatment in the community from a specialist mental health service. Approved mental health professionals can refer eligible individuals to protect them from debt enforcement. These professionals are often the first on the scene when a person is in crisis and are responsible for arranging assessment for treatment under the Act. Therefore, when a person is admitted to hospital, they may already have been enrolled in the scheme and, if not, NHS England guidance sets out the financial support, including referral to breathing space, that should be offered to patients receiving acute in-patient mental health care, whether detained or voluntary. I can say to your Lordships’ Committee that we do intend to make this an explicit requirement in the Mental Health Act code of practice.
I feel that is particularly important as my noble friend Lord Davies raised the point about uptake. Certainly, I recognise that uptake has been lower for the scheme than originally anticipated. While we do not believe this is a representation of the scheme significantly underperforming, I assure my noble friend that we will continue to keep the scheme under review to ensure that it is working effectively for those who need it, and needed indeed it is. It is for these reasons that I hope that my noble friend will withdraw the amendment.
Lord Davies of Brixton (Lab)
I thank everyone who has taken part in the debate; the case was made clearly by everyone. I thank particularly the noble Baroness, Lady Watkins, for the additional point about the pressure on clinical staff. This issue was, of course, raised in the earlier amendments about the code of practice and the treatment plan; they are all of a piece. I will consider carefully what my noble friend the Minister said, and perhaps we will have some discussions, and we will see where they go. In the meantime, I beg leave to withdraw my amendment.
Earl Howe
“Accessibility for children with physical disabilities(1) The Mental Health Act 1983 is amended as follows.(2) In section 131A (Accommodation etc for children), after subsection (4) insert—“(4A) Where a child who is accommodated under this section has needs arising from a physical disability, the managers, in determining the suitability of the environment in which the child is accommodated, must ensure that such reasonable adjustments to the environment are made as they consider necessary.”” Member’s explanatory statement
This amendment seeks to ensure improvements in accessibility for children with physical impairments who are accommodated in mental health inpatient units.
Earl Howe (Con)
My Lords, in moving Amendment 142, I will speak to Amendments 143 and 144 standing in my name and that of my noble friend Lord Kamall. These amendments are about one critical issue that has proved seemingly intractable despite best efforts for many years: the way the mental health system looks after child patients. I am not talking just about child patients who have been compulsorily detained under the Mental Health Act, although they are the subject of Amendment 143; I am referring also to children admitted to a mental health unit as in-patients for any reason at all. That is the subject of Amendment 144.
Noble Lords who are veterans of the last Mental Health Bill in 2007—I can see one or two—will remember that the late Lord Williamson of Horton, former Convener of the Cross Bench Peers, made this issue his crusade with, unfortunately, only limited success. We are still living with the problem. The current Mental Health Act code of practice says that it is government policy for under-16s not to be admitted to an adult ward, which is fine as far as it goes—although, in my book, when we talk about children, we should include young people aged 17 and 18.
The Government promised to eliminate the inappropriate use of beds in adult wards, but that has not happened. Last year, the CQC reported that 196 children were admitted to adult mental health units in 2022-23. This is not a trivial matter. The patient group Blooming Change, which I have mentioned before, has provided me with some first-hand accounts from children and young people who have been placed on adult mental health wards and who have been through some harrowing experiences. One has said:
“As a child I spent over 50 days in a mixed gender crisis unit … There was some very scary stuff that happened … During my first day on the unit, I witnessed a team of police dressed in riot gear with riot shields and dogs doing a drug search … At one point my bedroom was next door to a man who broke a student nurse’s nose and smeared his own bodily fluids over his bedroom wall … I was constantly scared and on edge and the ward was constantly unsettled. The staff on the ward were not trained on child restraint, so I often ended up really hurt … it would be, like, really big men who were used to going up to forensics to restrain people and then coming to restrain me, a little girl at the time, basically. It was horrific”.
That may be an extreme case, and one trusts that it is, but there are many cases that fall not far short of that level of emotional damage. It certainly is not that extreme as regards the complete absence for a child of any therapeutic benefit.
Another witness said:
“The worst thing about adult wards is you can’t access any intervention at all. No art therapy, no psychiatrist, because you’re under 18, so they say they don’t have the appropriate training to work with you. When I was on an adult ward, all my medication went unreviewed. I wasn’t allowed to ask for anything, not even allowed outside”.
What is the best way of solving this problem? The approach I have taken in these amendments is to say that, when a person aged under 18 is in desperate need of in-patient mental health treatment, the clinical decision-making around admitting that person to a mental health unit should be as rigorous as it can be to avoid, as far as humanly possible, admitting that patient into an adult ward. There surely to be a determination around best interests. There also need to be procedural safeguards so that, if it is decided that an adult ward is the only available option in a particular case, there is appropriate transparency around that decision, such that the local authority is informed of the fact and the hospital itself publishes statistics in its annual report recording the number of instances during the year when this has occurred.
I also suggest that a report to the local authority is equally appropriate in a situation where a child is accommodated in a hospital or mental health unit situated outside the local authority area in which the child is ordinarily resident. In one of our earlier debates, we talked about the particular vulnerability of children who are treated in a hospital far away from home. Alerting the child protection officer working nearby would go some way at least to mitigating the risk of the child self-harming.
There may be some Members of the Committee who think I have been far too lily-livered in tabling these amendments and who feel I should have tabled much stronger amendments proposing the outright abolition of placements involving children on adult wards. I quite deliberately have not done that for the reason we touched on in earlier debates: we have to work with the world as we find it, not as we would ideally like it to be. We have to recognise that, in a few cases—sometimes desperate cases—a temporary stay on an adult mental health ward could be the only way of saving a child from death or serious injury and, in those cases, I suggest that it is not for us in Parliament to prohibit the practice outright.
On Amendment 142, a child being treated in a mental health in-patient unit who also has a physical disability can sometimes get a very raw deal. If the unit they are on has areas that are, in practice, inaccessible to that child, that simple fact can have a huge impact on their access to treatment. One member of Blooming Change has said:
“I am physically disabled, and for me, the room to speak to the psychologist was upstairs in the unit, and there was no way for me to access that space. I kept being told she would come down to see me somewhere else during my stay, but it didn’t happen, so for me, my physical impairments meant that I didn’t get equal access to the support”.
This is not the sort of amendment I would choose, in the normal way, to bring back on Report, but the questions it raises are important enough for me to ask the Minister whether the department and NHS England are sufficiently aware of that kind of problem and what, if anything, is being done to address it. I beg to move.
Baroness Berridge (Con)
My Lords, I rise to speak to Amendments 159 and 160. Amendment 159 is similar to Amendment 143. It merely proposes a different notification procedure where a child has been present on an adult ward, but it also requires notification to the local authority and applies to out-of-area placements, which were mentioned by my noble friend Lord Howe. It is important that that information is given to the local authority, as it has the duties to safeguard—particularly children in need. I will speak to this on Amendment 160.
I join with my noble friend’s comments on how the Bill treats those who are 16 and 17. We have raised the issue in relation to other areas of the Bill that, in law, they are children, and they are treated as children by the professionals, as outlined in the example of the psychiatrist saying, “I don’t have the training to do this”. Under-18s are treated as vulnerable young people and children. One can also draw attention to the fact that under-18s are no longer allowed to marry in our country. We are increasingly coming into line with the fact that you are a child, and have the protection of the law as one, until you are 18.
Amendment 160 relates to “children in need” under Section 17 of the Children Act. Recommendation 117 of the Wessely review said:
“Section 17 of the Children Act 1989 should be amended to clarify that any child or young person admitted to a mental health facility is regarded as a ‘child in need’ so that parents can ask for services from their local authority”.
That will, obviously, be particularly important if the child has been placed out of area.
That recommendation was rejected by the Government in their published response to the review, but I note that the review also asked for this provision to be if the child is admitted—that means as a voluntary patient, of course, as well as just being admitted under the Act. I have laid this amendment to clarify the Government’s response to this. That response stated that, basically, it is not necessary to amend the Children Act because disabled children, which includes children suffering from a mental disorder, are already deemed to be “children in need”, so there is no need for this recommendation.
Baroness Tyler of Enfield (LD)
My Lords, I rise very briefly to add my support to Amendments 143 and 144, in the name of the noble Earl, Lord Howe. I added my name to these amendments. I am also very sympathetic to the other amendments in this group, both Amendment 142 and the two amendments that the noble Baroness, Lady Berridge, has just spoken to.
The noble Earl, Lord Howe, introduced these amendments in an incredibly compelling, moving and, indeed, comprehensive way. In a way, I do not feel that there is very much for me to add. I did have to think quite hard—there was part of me that wanted an outright prohibition, but I recognise the state of the mental health services we have at the moment. Unfortunately, there are times—hopefully, in only a few desperate cases, as the noble Earl said, and for a very short time—when these measures have to be taken. As undesirable as I think it is, we need to recognise the world in which we live.
I would also like to underline—because most of the debate so far has been about children in adult wards, which is clearly hugely undesirable—the importance of considering children placed out of area. That is, so often, when there is no suitable or available bed. It goes back to the issues raised by my noble friend Lady Parminter about eating disorder beds. It is hugely detrimental for children and young people to be placed out of area, away from their support networks—their family and friends who they so desperately need as part of their recovery at a time of real crisis—so I want to underline the importance of that, as well as the importance of real transparency and rigour when a child is, very unfortunately, placed in an adult ward, hopefully for a very short period of time.
Baroness Butler-Sloss (CB)
My Lords, I come to this totally uneducated, so what I have heard this afternoon I have found very shocking. I agree with what has been said already, and I was particularly shocked by the comments from the noble Earl, Lord Howe. I would like to underline what the noble Baroness, Lady Berridge, has said about the fact that these are children. They may be 17 and a half but, under the Children Act 1989, they remain children and, across all legislation dealing with children, “best interests” comes in.
From what I have heard, it sounds as though adult wards do not understand that these are genuinely children and have to be treated separately but, much more importantly, that their best interests are not necessarily, or almost certainly not, the same as those of adults. I wonder whether it should not be permeating all establishments, private and public, that, if they have to take into an adult setting those under 18, they have to deal with them in a special way. I remain horrified by what was said and I hope that the Minister, who is a particularly sympathetic person, will pick this up and take it across the board.
Lord Berkeley of Knighton (CB)
My Lords, I am only marginally less shocked than the noble and learned Baroness. The reason for that is that I regularly visited a friend in an adult ward, suffering, funnily enough, from eating disorders, among other things. So I support Amendment 144 most strongly. What shocked me was that, over several years, there were two children I saw. They were witnessing not only acts of violence but sexual acts too that were quite clear—I will not go into the details, but it was completely inappropriate for a child to be witnessing this.
The final point I want to make hinges on what we have also heard: that there is only so much we can do. Of course, the reason for that, and it is another reason why these experiences are seared into my mind, is the state of funding for mental health. No one can turn that switch on immediately, but the root problem here is that this is a sector that is somehow pushed to the side. Therein lies a fundamental reason why we have to take a completely different attitude to mental health, and I am sure that the Minister feels quite strongly about that herself.
Baroness Merron (Lab)
My Lords, I will turn first to Amendments 142, 143 and 144, in the name of the noble Earl, Lord Howe, supported by the noble Lord, Lord Kamall, and joined by the noble Baroness, Lady Tyler, on Amendment 143 and 144. I will also address Amendment 159 in the name of the noble Baroness, Lady Berridge.
I thank the noble Earl, Lord Howe, for the way in which he introduced this subject and for the understanding and shock shared by the noble Lord, Lord Berkeley, and the noble and learned Baroness, Lady Butler-Sloss. I am sure we all share the thoughts and views that they have expressed. I also thank the noble Earl, Lord Howe, for his reference to Blooming Change. I certainly recognise the important work that it does. The way he introduced its observations and experience really highlighted the reality of what we are here to deal with.
On Amendment 142, it is crucial that people with physical disabilities have equal access to mental health services. Under the Equality Act 2010, those providing mental health services, including under the Mental Health Act, must make reasonable adjustments to ensure that people with disabilities are not at a disadvantage. Therefore, the aims of this amendment are already covered by existing legislative requirements. I heard what the noble Lord said about an example of where this was not the case. I can only add my own comment to say that this is, of course, not acceptable and not at all how legislation would expect a provider to act.
We will review the guidance on how to support individuals with a physical disability, including children, when we consult on the revised code of practice and as part of NHS England’s new service specification, which will set out requirements for children and young people’s mental health services. I hope that will be helpful to meet the points raised in Amendment 142.
I turn now to Amendments 143, 144 and 159. The policy of NHS England is clear that children and young people should be able to access the right type of service, as close to home as possible and in the least restrictive environment. We do not want to see children and young people on adult wards or placed far from home. We are working to secure the necessary investment to expand community-based support and specialist beds to prevent this from happening. I am grateful to the noble Earl, Lord Howe, for referring to the need to deal with where we are rather than where we might like to be. That is what we intend to do.
There are already provisions in the Act that seek to limit inappropriate placements for children and young people. Under Section 131A, hospital managers must ensure that the patient’s environment is suitable, having regard to their age. We believe that the careful consideration and nuance involved in determining any circumstances where it is in a child’s best interest to be treated on an adult ward or in an out-of-area placement fits better in a revised code of practice rather than legislation, which would apply fixed rules that could not be adapted to individual circumstances or service provision.
We will provide additional guidance on the process to determine, and review throughout a child’s detention and treatment, that the environment in which they are accommodated continues to be in their interests. Such matters can be addressed through the new service specification for specialised children and young people’s mental health services.
I assure the Committee that there are already clear operational processes in place to identify and monitor children and young people in inappropriate placements. It is a statutory requirement for the CQC to be notified within 48 hours if a child or young person is placed on an adult ward. The CQC reports on the number of people under 18 admitted to adult wards as part of its Monitoring the Mental Health Act reports.
The CQC project on improving regulation for children inappropriately placed will identify what CQC can do to prevent children being cared for by providers who cannot meet their needs and to reduce their risks of being exposed to poor-quality care. I assure the Committee that we will review the process for who should be notified, and in what circumstances, in the new service specification for specialised children and young people’s mental health services, and in the revised Mental Health Act code of practice.
I turn to Amendment 160, tabled by the noble Baroness, Lady Berridge, on the extension of Section 17 of the Children Act 1989 to include children detained under the Mental Health Act. Section 17 places a duty on local authorities to provide support for children who are unlikely to reach or maintain a satisfactory level of health or development, or where their health or development would be significantly impaired without the provision of services—or where the child is disabled.
Earl Howe (Con)
My Lords, I am grateful to all noble Lords who spoke in this short debate and grateful for the support that they have expressed for the amendments, both mine and the others in this group. My noble friend Lady Berridge drew my attention to an inadvertent slip of the tongue that I committed in my earlier contribution. When I sought to define a child, I meant of course to say that we should include young people aged 16 and 17. In that regard, I was particularly grateful for the powerful interventions from the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Berkeley of Knighton, citing their own experiences.
I much appreciate the Minister’s comments in response to these amendments, particularly Amendments 143 and 144. I believe, from what she said, that she and I are on the same page when it comes to age-appropriate settings for child patients. It was reassuring to hear from her what is contained in the current code of practice and what is intended to be included in the revised service specification. I am also pleased to hear that the CQC has it as part of its role to report on these very important issues.
I will study what she has said in Hansard and consider what is best to do between now and Report, but, for now, I beg leave to withdraw the amendment.
Earl Howe
“Recording of use of force on mental health patients(1) Each NHS facility must keep a record of any use of force on a patient who is at that facility for the purpose of treatment for mental disorder or assessment for mental disorder, by staff who work in that facility and in relation to the patient’s diagnosed or suspected mental disorder, in accordance with this section.(2) Subsection (1) does not apply in cases where the use of force is negligible.(3) Whether the use of force is “negligible” for the purposes of subsection (1) is to be determined in accordance with guidance published by the Secretary of State. (4) The record must include the following information—(a) the reason for the use of force;(b) the place, date and duration of the use of force;(c) the type or types of force used on the patient;(d) whether the type or types of force used on the patient formed part of the patient’s care plan;(e) name of the patient on whom force was used;(f) a description of how force was used;(g) the patient’s consistent identifier;(h) the name and job title of any member of staff who used force on the patient;(i) the reason any person who was not a member of staff in the facility was involved in the use of force on the patient;(j) the patient’s diagnosed or suspected mental disorder;(k) the relevant characteristics of the patient (if known);(l) whether the patient has a learning disability or autistic spectrum disorders;(m) a description of the outcome of the use of force;(n) whether the patient died or suffered any serious injury as a result of the use of force;(o) any efforts made to avoid the need to use force on the patient;(p) whether a notification regarding the use of force was sent to the person or persons (if any) to be notified under the patient’s care plan.(5) The facility must keep the record for 3 years from the date on which it was made.(6) In subsection (4)(g) the “patient’s consistent identifier” means the consistent identifier specified under section 251A of the Health and Social Care Act 2012.(7) This section does not permit the facility to do anything which, but for this section, would be inconsistent with—(a) any provision of the data protection legislation, or(b) a common law duty of care or confidence.(8) In subsection (7) “the data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).(9) In subsection (4)(k) the “relevant characteristics” in relation to a patient mean—(a) the patient’s age;(b) whether the patient has a disability, and if so, the nature of that disability;(c) the patient’s status regarding marriage or civil partnership;(d) whether the patient is pregnant;(e) the patient’s race;(f) the patient’s religion or belief;(g) the patient’s sex;(h) the patient’s sexual orientation.(10) Expressions used in subsection (9) and Chapter 2 of Part 1 of the Equality Act 2010 have the same meaning in that subsection as in that Chapter.”Member’s explanatory statement
This amendment would require NHS facilities to keep a record of any use of force on a patient who is at that facility for the purpose of treatment for mental disorder or assessment for mental disorder.
Earl Howe (Con)
My Lords, I beg to move Amendment 146 standing in my name and that of my noble friend Lord Kamall. On the previous group of amendments, I cited the experience of a child held on an adult mental health ward being subject to restraint, where undue force was applied by the staff involved, causing unnecessary pain and distress to the patient.
In fact, the incidence of restraint being used on children being treated in mental health settings—and, indeed, general hospitals—is alarmingly high. This fact was recognised in the Mental Health Units (Use of Force) Act 2018, which came into effect in 2022. However, despite the provisions of that Act, not only has there been no drop in the number of restrictive interventions that children are subject to but there has been an increase.
In 2023-24, a total of 84,626 restrictive interventions were carried out on children, which is a 51% increase on the year before. That is the highest number of restrictive interventions recorded since figures were made available in 2019, despite what appears to be a drop in the number children being treated in mental health units. It is not only that restraint is being applied in these cases; all too often, because there is a physical struggle involved in the process of restraining someone, that patient ends up with an injury.
What lies at the root of this? Blooming Change believes that restraint amounting to abuse is entrenched in the system. Unfortunately, that rather depressing view was borne out last August by the Independent newspaper, which reported that children in a mental health in-patient unit in Coventry were captured on CCTV
“being dragged across the floor”
by the staff. There surely has to be something here about the need for staff in all mental health settings to receive training in the different techniques for de-escalating a crisis, with physical restraint being regarded as a last resort.
In fact, with the two very welcome principles set out in Clause 1, “least restriction” and “therapeutic benefit”, the training of staff in appropriate techniques of control will, one hopes, become an even more important priority than before. I hope the Minister can let me have some reassurance on this very troubling set of issues. I beg to move.
Baroness Hollins (CB)
My Lords, I declare my interest and my experience as a retired psychiatrist, working for the majority of my career with people with learning disabilities and autistic people.
In 2019, the then Secretary of State for Health asked me to oversee an important review of the use of another restrictive intervention, long-term segregation, known as LTS, for people with learning disabilities and autistic people. The Government published the oversight panel’s report of that review simultaneously with their quite positive response to its recommendations in November 2023.
Amendments 155 and 156 in this group address critical issues highlighted in the report about the use of LTS and the measures needed to eliminate its use for people detained under mental health legislation. The amendments aim to improve oversight and accountability in its use, while pointing to the urgent need for appropriate community services to prevent delayed discharges. The proposed changes are not merely administrative; they are a necessary response to urgent human rights questions raised by the use of LTS, and indeed these other restrictive interventions covered by the noble Earl, Lord Howe, whose amendment I support.
The report, aptly titled My Heart Breaks, found that the mental and physical health of children and young people and adults detained in long-term segregation deteriorates as a direct consequence of enforced isolation. In medicine, we call this iatrogenic harm, and it is unacceptable. LTS is often used in association with other restrictive practices. There is substantial research evidence pointing to the harms of such enforced social isolation, including in conditions of solitary confinement. Nor does it have therapeutic benefit. Oversight panel members considered that LTS should actually be renamed “solitary confinement” to avoid the normalisation of the practice in healthcare settings. Currently, rather less clear terminology is used, perhaps to disguise what is really happening in practice.
It is interesting to note that not all psychiatric hospitals have rooms in which to detain people. The type of accommodation used is sometimes totally unacceptable, with people being detained in rooms with no natural light, with a mattress on the floor and no toilet facilities.
Amendment 155 would require notification of LTS to the CQC within 72 hours of its commencement. It would require that the CQC must initiate an investigation if LTS was used for more than 15 days within any 30-day period, and if it were used for a person under the age of 18, or for a disabled person whose condition would be exacerbated by its use—for example, an already psychologically traumatised person who would be further traumatised by the sensory and social deprivation caused by its use, which is probably most people.
The amendment would require that the code of practice introduced minimum standards for LTS, including access to natural light, outdoor space and meaningful human contact. As I am sure most noble Lords would agree, these are basic necessities for dignity and well-being. Psychiatric hospitals still using LTS would be required to appoint a responsible officer to review and report on its use to the CQC. They would also be required to comply with recommendations from independent care (education) and treatment reviews, known as ICETRs, as they relate to LTS.
Amendment 156 seeks to ensure that therapeutic alternatives to LTS have been properly considered by requiring independently chaired reviews for any person detained in LTS. Since the end of the Department of Health’s programme of ICETRs in 2023, which reviewed 191 cases between 2020 and 2023, the CQC was commissioned to restart the programme. The new programme includes that the independent chairs must follow up to see whether the recommendations have been implemented, but funding has been committed only to the end of this current year, while LTS continues. These reviews must be kept in place until the use of LTS comes to an end, or for as long as it is in existence, so the amendment would require ICETRs to be continued, and it outlines the role, responsibilities and authority of the independent reviewer. I hope the Minister will be able to assure the Committee that the continuation of these independent reviews will be funded.
By limiting the duration of LTS, mandating independent oversight and requiring therapeutic alternatives, we could protect people’s rights and lay the groundwork for effective rehabilitation and reintegration back into their communities. Meeting minimum standards and reclassifying such segregation as “solitary confinement” would rightly underscore its appalling and often inhumane nature. I know many clinicians dislike that term because it is equated with punishment, but it describes the conditions that we sometimes saw.
The excuse is often given that LTS is the last resort for a person, but in fact it is usually the first resort and the first response, because no appropriate care and support have been provided. I have seen systemic failures that are leaving individuals in restrictive settings due to insufficient community-based support. While commissioners and clinicians often act with good intentions, they lack the co-ordination, resources and expertise needed to deliver the care that is needed to keep people safe.
The amendments simply aim to ensure therapeutic care close to home. They require that, by monitoring the continuing use of LTS and understanding the barriers to eliminating its use, the CQC would be able to identify the themes, trends and changes that are taking place over time in the use of this restrictive intervention. I urge the Minister to support the amendments.
Baroness Ramsey of Wall Heath (Lab)
My Lords, I support Amendments 155 and 156, to which I have added my name. If they were approved, the Care Quality Commission would be required to ensure independent reviews of the suitability of continued segregation, with a particular focus on the potential for community support to be preferable. The amendments would also increase transparency and set minimum standards, both of which I am sure noble Lords will wish to support.
When I chaired, from 2017 to 2020, NHS England’s transforming care steering group for children and young people with learning disabilities, autism or mental health problems and challenging behaviour, I heard heartbreaking testimony from parents whose teenage and young adult children were segregated for weeks and months on end, as referred to by the noble Baroness, Lady Hollins. For example, I visited a non-NHS provider outside London that had kept one young adult woman—whose story appeared in social media at the time, noble Lords may remember—in segregation, in a room with no window and no natural light, and passed food to her through a hatch. She was completely alone.
As I and other noble Lords have already argued, investment in the right type of community support is the only humane way forward. To ensure that proper use is made of this investment, we should send out a clear message that we expect community services to be used wherever possible, rather than segregation. The way to do this is for the Care Quality Commission to oversee a process of independent review in any case of segregation of a young person under 18, anyone with learning disabilities or autism, or anyone whose segregation exceeds 15 days.
Baroness Browning (Con)
My Lords, I too was pleased to add my name to Amendments 155 and 156 in the name of the noble Baroness, Lady Hollins. She has already spoken on this subject, and it would be remiss of me not to say that the title of the report she mentioned, My Heart Breaks—which is of course in her name and authorship—was chosen for a purpose. This is a heartbreaking situation, and on the piece of paper I am holding in my hand, headed GOV.UK, it says: My Heart Breaks—Solitary Confinement in Hospital Has No Therapeutic Benefit for People With a Learning Disability and Autistic People.
As we have heard, it is not just that it is not therapeutic; it is actually harmful. On the terminology, other speakers have already spelled out why they have dumbed down the real raw facts of the language that they use to describe this type of incarceration—for that is what it is. It reminds one of prisons. Look at the legal structures needed to put somebody into a prison, yet people who are ill are treated in the same way as prisoners.
I remember visiting a school for autistic children many years ago. It had a single room where they took children who were having a meltdown. It was a padded room, and they felt that was the appropriate treatment for children. We know, from the many debates in this House about people who have been held for extended periods in mental health hospitals, the damage it does and the difficulties when these practices are in place.
Ironically, this does not happen everywhere. You have to ask why it happens in some institutions and not in others. There is an answer to that. It is not because of a different profile of patients in these two different types of settings but because in some places they understand the problem and have sufficient training and resources. Training of personnel, particularly senior personnel, is key. If the person in charge says, “This is what we are going to do”, very few people in the structure below them are going to challenge it, so that is what they do and it becomes the norm.
Fifteen months ago the noble Baroness, Lady Hollins, produced this report, which now bears government approval and GOV.UK and the Department of Health and Social Care on it. It is now really time for the Government to adopt the amendments from the noble Baroness, Lady Hollins, and her recommendations. It is a wealth of experience that we can only admire, and I urge the Minister to please accept these recommendations. They come from the very highest level. We are very lucky in this House to have the expertise of my dear friend, the noble Baroness, Lady Hollins.
Baroness Fox of Buckley (Non-Afl)
My Lords, I will speak very briefly and on a slightly related topic. I want to talk about a different group of people who are in long-term segregation who are not sectioned and often do not get mentioned—prisoners. Long-term segregation is used when very mentally ill people in prison are not transferred to hospital and nobody knows what to do with them. They are put into isolation and left there, psychotic, delusional and forgotten—dumped, in effect.
The noble Baroness, Lady Browning, alluded to prisons, but even prisoners should not be treated like prisoners sometimes. The confusion and conflation of punishment and treatment outside prison is no less shocking when it is inside prison. You are not meant to punish somebody doubly because they are in prison and happen to get ill.
The Chief Inspector of Prisons, Charlie Taylor, has made the point that the segregation units are completely unsuitable for people who are severely unwell. They are also a significant drain on the hard-pressed staff, because very often the restraints are of people literally going out of their mind. They are not getting any medical intervention at all. According to the chief inspector, it requires multiple officers to unlock the cells even just to deliver meals.
Is it possible for the Minister to give any thoughts on that? Also, in a way, this is an appeal to the noble Baroness, Lady Hollins—if she takes this amendment forward—to bring that into the situation, even though I know I am slightly squeezing it in because I have Amendment 160A on reviewing prisons.
On Amendment 146 and the use of force, I absolutely agree with the mover of the amendment in relation to the need to keep records. That is obvious. I suppose the nightmare for us all is the misuse of force. It is horrifying—the stuff of nightmares—when people are ill.
I do not want to be naive. I know that when people are very ill and very psychotic, sometimes appropriate force is necessary; I just think it needs to be recorded. When I say force, I obviously do not mean violence or anything not within the realms of professional intervention. Sometimes I think we forget how ill people can be and how violent and how difficult it is for the people who work with them. We should record every instance of the use of force but be wary of demonising or damning every use of it, because it is not quite as simple as that.
Baroness Watkins of Tavistock (CB)
My Lords, I support all three amendments in this group but make the point that a lot of NHS care is now commissioned into the independent and charitable sectors. It is vital that records are kept in any care setting that is paid for by the NHS, not just by NHS facilities. I also believe that recording will reduce these kinds of behaviours because it will make people think much more carefully, particularly in long-term segregation. As you get to 10 days, people will be thinking, “How can we change the care we are delivering to avoid that 15-day reporting sanction?”. It really is imperative that we do this. We are treating some of the people who have the greatest needs in our society really badly.
Baroness Barker (LD)
My Lords, we on these Benches offer our support to the noble Baroness, Lady Hollins, for her two very thoughtful amendments and the way in which she introduced them. However, I want to turn our attention to Amendment 146, in the name of the noble Earl, Lord Howe.
I was a colleague of Norman Lamb, who was formerly a Minister in the department. He was one of the people who was, as a Minister, most active in addressing the issue of the overuse of force in mental health. This is a campaign that he has continued to develop in his chairmanship of South London and Maudsley NHS Foundation Trust. It is a subject that I am very glad we are focusing on again.
Anybody who has visited a mental health facility in which there are people who are having acute episodes will know that there are times when, for the safety of the person and the safety of others, it is necessary sometimes to use restraint. However, as I think the noble Earl was alluding to in his introduction, the overuse and frequent use of force is often an indicator of substandard care. Therefore, it is very important that incidences of use of force and the reasons for it, as in his carefully crafted amendment, are recorded.
There are two things that I want to pick up with the noble Earl. His amendment is very carefully crafted. In his introduction to it, he referred throughout to children, but his amendment relates not just to children but to all mental health patients. For that reason, I wish to concentrate on proposed new subsection (9). It says:
“In subsection (4)(k) the ‘relevant characteristics’ in relation to a patient mean—”,
and then lists all of the protected characteristics within the Equality Act, with one omission: gender reassignment. I therefore wish to ask him simply why people undergoing gender reassignment do not merit the same protection as everybody else.
Baroness Merron (Lab)
I thank noble Lords for their contributions. Let me first turn to Amendment 146, tabled by the noble Earl, Lord Howe, and supported by the noble Lord, Lord Kamall.
The amendment largely replicate duties under Section 6 of the Mental Health Units (Use of Force) Act 2018 for all patients in NHS mental health units. We recognise that the data suggests that the use of force for children and young people is still far too high, and we are working with NHS England to address this. Although the section I have referred to has not yet been commenced, the guidance is published and the data is already being recorded and reported, and we plan to commence the duty formally later this year. The amendment as drafted would capture a much broader range of patients than the use of force Act does—for example, all patients who are being treated for dementia or delirium in an acute hospital. Furthermore, it is not clear what use will be made of that data. Therefore, the volume of new data collection processes could be significant, but the benefits that would result from this are somewhat unclear.
I turn to Amendments 155 and 156, which have been put forward by the noble Baroness, Lady Hollins, regarding long-term segregation. The amendments are supported by the noble Lord, Lord Crisp, the noble Baroness, Lady Browning, and my noble friend Lady Ramsey, both of whom made important contributions to the debate.
Like other noble Lords, I thank the noble Baroness, Lady Hollins, for her work on this issue over many years, including her significant report, My Heart Breaks, which the noble Baroness, Lady Browning, rightly referenced. We are here today, I believe, in no small part due to the tenacity of the noble Baroness, Lady Hollins, and others who have fought for better outcomes for people under the Mental Health Act. I thank them all.
Baroness Hollins (CB)
There seemed to be an assumption that long-term segregation would continue and that perhaps ICETRs are not effective, but one thing that emerges from an independently chaired review is some learning about the barriers in place and the reasons why LTS is being used, rather than more therapeutic options. That is the reason for this kind of oversight being necessary. It is not necessarily that the ICETR itself will lead to recommendations being implemented; in my report, we found that the recommendations were not being followed—they were made and then not followed through. There needs to be much more effort to try to learn from what is happening and begin to change the culture of LTS as an okay response to somebody’s distress.
Baroness Merron (Lab)
I understand that point, and the noble Baroness makes it very well. I simply refer her to the points that I made about needing to look at evidence, the outcomes and the value of those reviews, and whether that is the right approach for everyone. I take on board her point, but my comments probably tell the Committee that we feel that there is more work to be done in this area.
Earl Howe (Con)
My Lords, once again, I express my appreciation to all noble Lords who have contributed to this debate. I highlight in particular the speech of the noble Baroness, Lady Hollins, which I found extremely powerful and persuasive, as did other noble Lords.
It strikes me that this is an especially appropriate grouping of amendments. The overuse of restraint in mental health settings and the use of completely untherapeutic long-term segregation are equally pressing and emotive concerns.
The noble Baroness, Lady Barker, pulled me up slightly on the issue of protection for those undergoing gender reassignment. The concern that I had in drafting the amendment was to cover protected characteristics across the piece, but she has drawn my attention to a lacuna, and I am very grateful.
I was somewhat disappointed with the Minister’s reply on the issue of restraint applied to mental health patients, which, as the noble Baroness, Lady Barker, pointed out, is an issue affecting adult patients as well as children. The amendment was drafted with precisely that in mind. The point that I sought to make was that, despite the statute law to which the Minister referred, the incidence of restraint on children in particular has rocketed, which raises questions about clinical practice, staffing and training around the code of practice. To my mind, it was a pity that the Minister had little to say about those possible areas for practical follow-up.
I shall read again what the Minister said about my amendment between now and Report. For now, I beg leave to withdraw the amendment.
Baroness Keeley
“Human Rights Act 1998: provision of treatment for a mental disorder as a public function(1) This section applies where—(a) a patient is receiving after-care under section 117 of the Mental Health Act 1983,(b) a patient is accommodated in a hospital for the purpose of being given medical treatment for mental disorder, or(c) a person’s health or social care arrangements in connection with their mental disorder give rise to a deprivation of their liberty, within the meaning of that term as under Article 5(1) of the European Convention on Human Rights.(2) The provider of treatment or care under subsection (1) is to be taken for the purposes of section 6(3)(b) of the Human Rights Act 1998 (acts of public authorities) to be exercising a function of a public nature, if the treatment or care is arranged by or paid for (directly or indirectly, and in whole or in part) by a local authority in England, Wales or Scotland, or by an NHS Health Board, an NHS Integrated Care Board, or by a Health and Social Care Trust.”Member’s explanatory statement
This amendment ensures the Human Rights Act 1998 applies when people receive outsourced mental health treatment or after-care, or are deprived of their liberty in connection with a mental disorder. It addresses a gap in human rights protection exposed by Sammut & Ors v Next Steps Mental Healthcare Ltd & Anor [2024] EWHC 2265 (KB).
Baroness Keeley (Lab)
My Lords, I rise to explain the significance of Amendment 149 in my name, which aims to ensure that the Human Rights Act 1998 protects individuals whenever the NHS, local authorities or other state bodies outsource mental health treatment or aftercare to private providers. It also seeks to secure human rights protection whenever people are deprived of their liberty, in connection with mental disorders, by private health or social care providers. I start by saying that I am not in any way a legal expert, so I thank Dr Lucy Series and Professor Luke Clements for raising the need for this amendment. I also thank them for their help in drafting the amendments and providing notes and briefings on the issue, and for working with a number of noble Lords and the Bill team on it. I also thank the noble Baroness, Lady Barker, for her support for the amendment and adding her name to it.
A growing proportion of mental health treatment and most social care is now commissioned from the private sector by the NHS and local authorities, but human rights protection does not necessarily follow. When Parliament enacted the Human Rights Act 1998, it was intended to apply to private organisations delivering public functions on behalf of the state. However, the courts have narrowly interpreted public functions.
In the 2007 case YL v Birmingham City Council, the House of Lords ruled that private care providers, being commercial operators working for profit, were not performing public functions, even when providing state-commissioned and funded care services. That interpretation appears contrary to Parliament’s intent, but it remains legally binding. Parliament partially addressed that issue with Section 145 of the Health and Social Care Act 2008, and later with Section 73 of the Care Act. These provisions state that private care providers commissioned by local authorities under the Care Act 2014 or equivalent legislation in Scotland, Wales and Northern Ireland are performing public functions as defined by the Human Rights Act. This ensured that individuals whose care is arranged by the Care Act are protected by the Human Rights Act, regardless of whether their care is provided directly by the local authority or outsourced to a private provider.
However, the recent High Court case of Sammut v Next Steps Mental Healthcare Ltd shows that mental health patients and many other users of outsourced health and social care services were still not protected. Mr Sammut had schizophrenia and, after being discharged from hospital, he was placed in a private mental health nursing home, using Section 117 aftercare. He developed constipation, a known complication of the antipsychotic medication he was taking. After his death from bronchopneumonia, large intestinal obstruction and faecal impaction, his family alleged very serious clinical negligence and brought a claim arguing that his human rights were violated. However, their claim was unsuccessful, as the judge held that the Human Rights Act did not apply because Mr Sammut’s care was arranged under Section 117 of the Mental Health Act 1983, not under the Care Act.
This judgment highlights the narrow limitations of the Human Rights Act as a remedy for those using outsourced public services, such as private care provision or mental health treatment. This raises concerns about the human rights protection of thousands of other people who are deprived of their liberty in private health and social care settings in connection with their mental disorders.
This amendment addresses gaps in human rights protection for three groups of people: patients like Mr Sammut receiving mental health aftercare from private providers; any patient receiving in-patient mental health services, whether subject to the Mental Health Act or not; and anybody who is deprived of their liberty in connection with a mental disorder by a private provider of health or social care. It has not been possible in this amendment to include all the other groups whose lack of rights are now exposed by the Sammut case, so it does not include children’s social care, as it is not within the scope of this Bill, or people receiving NHS continuing healthcare or other outsourced health or social care not arranged under the Care Act.
However, the amendment would ensure better protection for people with mental disorders in private care settings. I know that Dr Series and Professor Clements are also working on raising the issues that I just mentioned in relation to other Bills, including the Children’s Wellbeing and Schools Bill, so that they will also ensure human rights protection for those who draw on outsourced treatment, care and support. I commend this simple but important amendment, and I hope it can be supported.
Baroness Chakrabarti (Lab)
My Lords, I apologise to the Committee for my not having been able to speak at Second Reading and for seeking to intervene on one amendment only in such an important Bill. That is the amendment from my noble friend Lady Keeley, supported by the noble Baroness, Lady Barker. I declare an interest as a council member of Justice, the NGO that will no doubt have sent briefings to many Members of the Committee on this important amendment.
Amendment 149 is a no-brainer, which warrants support and adoption by the Government and welcome from every political tradition represented in your Lordships’ House. It is no surprise to the Committee, I am sure, that I am a supporter of the Human Rights Act and the way in which it has protected vulnerable people and their families, including in mental health facilities. Those are some of the most potent stories about the Human Rights Act over the last near-quarter of a century.
Contracting out services will always be a matter of high politics in a democracy. It is literally the meat and drink of left-right debate over social and economic management. This was amply demonstrated in contributions on an earlier group by the noble Baronesses, Lady Bennett and Lady Fox, the noble Earl, Lord Howe, and my noble friend the Minister. However, no one in that debate ever advocates for either public or private provision on the basis that vulnerable people should be less well treated or protected.
It is my contention that everyone in the Committee should support Amendment 149, which would ensure Human Rights Act protection for publicly arranged mental health care, whether delivered by a public or private provider. No social democrat or liberal can approve of public authorities being able to contract out of constitutional protection, and no conservative can approve of public authorities being able to avoid responsibility for negligence or harm to individuals and their families, especially where coercive power is involved. Finally, I am sure that all Members of this Committee believe in equality before the law.
This amendment closes not so much a loophole as a glaring omission in legal protection as exposed by the case law and the Joint Committee on Human Rights. I commend it to the Committee.
Lord Pannick (CB)
My Lords, I too support the amendment from the noble Baroness, Lady Keeley, and I agree with every word spoken by the noble Baroness, Lady Chakrabarti. I am here today because I have an interest to declare, which is that I acted—unsuccessfully—in the case that caused the problem. In YL v Birmingham City Council, I was the unsuccessful counsel for YL, although I take comfort from the fact that of the five members of the Appellate Committee who sat on that case, the two who dissented were Lord Bingham of Cornhill and the noble and learned Baroness, Lady Hale—a formidable combination indeed. The noble and learned Baroness summed up the point in her dissenting speech in the Appellate Committee. She said that it is a function of a public nature for the purposes of the Human Rights Act when it is performed pursuant to statutory arrangements, when it is performed at public expense, and when it is performed in the public interest. It is as simple as that. I agree with her, I agree with the noble Baroness, Lady Keeley, and I very much hope the Minister will accept this amendment.
Baroness Barker (LD)
My Lords, it is usual in your Lordships’ House for the people with their names on the amendment to speak first; noble Lords will understand why I stood back, given the previous two speeches. I understand how the noble Lord, Lord Pannick, felt, having the noble and learned Baroness, Lady Hale, in his corner. I do not want to repeat anything that the noble Baroness, Lady Keeley, has said, because she summed it up extremely well.
We are very lucky; we get to talk to lawyers of calibre and fame. But I want to stand up for the solicitors, lawyers and independent mental health professionals who, day in and day out, go and see the people who are in real distress or are forgotten about, who nobody else is terribly interested in. They make it their business to make sure they are treated like human beings, wherever they are. I simply take the occasion to say this, because right now, we have to take every opportunity we have to defend the Human Rights Act and the application of universal human rights. It is no good having human rights that you pick and choose and apply to the people you like. It is why I picked the noble Earl, Lord Howe, up on his previous amendment.
We are very bad at explaining the importance of the Human Rights Act to people in the community; it is fair game for every newspaper hack or whoever wants to take a go at it, but it is about making sure that vulnerable people are treated as full human beings in our society. Therefore, I hope that even if we have not managed to fashion the exact perfect amendment, the noble Baroness will agree that this deserves to be in the legislation.
Baroness Butler-Sloss (CB)
My Lords, I came in today particularly to support Amendment 149, as others, including the noble Lord, Lord Pannick, have clearly done. What we are asking for is either for the loophole to be closed or for clarification. I share with the noble Baroness, Lady Keeley, the view that the judges produced a somewhat narrow definition of the situation. I agree with everything that has been said, and I do not want to repeat it, but with a narrow interpretation by the courts and with some lawyers here in Parliament and others who have put things so beautifully, Parliament can put right what is happening. That is what I am here to support: Parliament putting right what at the moment is not clear, is a loophole and needs to be put right.
Earl Howe (Con)
My Lords, I should like first to speak to Amendment 160BC standing in my name. Although it may not look like it, this is a probing amendment. I have tabled it because I have been made aware of concerns that there is a serious lack of clarity around one aspect of the Mental Health Act 1983 that would greatly benefit from a clarifying statement from the Minister.
Let us imagine a patient who is detained in a mental health hospital under the Act and who requires urgent treatment in another NHS setting, such as a general hospital. The treatment, let us further imagine, is kidney dialysis—that is just a random example. Unfortunately, in this case, the patient is deemed to lack decision-making capacity for his own health and well-being, and the doctors therefore agree that if he is transferred to the other hospital, he will need to be restrained during the time that he is receiving the treatment, because if he is not, there is a likelihood that the treatment will not be deliverable.
The question then arises: in that particular situation, does the Mental Health Act 1983 allow for the patient to be deprived of his liberty in a setting other than a mental health hospital in order for necessary life-saving treatment to be administered? I am aware that there are contrary opinions among lawyers and clinicians as to the answer to that question. Some believe that, in that example, it would be necessary for the managers of the mental health hospital to apply to the court for a deprivation of liberty order under the Mental Capacity Act, which the court could grant under its inherent jurisdiction. I understand that this is standard procedure in a number of mental health hospitals. By contrast, other experts are clear that Section 17(3) of the Act already provides authority to place the mental health patient into the custody of the managers of the acute hospital and that there is therefore no need to apply for a DoL order under the Mental Capacity Act in order to achieve this.
Section 17(3) of the Mental Health Act says:
“Where it appears to the responsible clinician that it is necessary so to do in the interests of the patient or for the protection of other persons, he may, upon granting leave of absence under this section, direct that the patient remain in custody during his absence; and where leave of absence is so granted the patient may be kept in the custody of any officer on the staff of the hospital, or of any other person authorised in writing by the managers of the hospital or, if the patient is required in accordance with conditions imposed on the grant of leave of absence to reside in another hospital, of any officer on the staff of that other hospital”.
Those words appear to confirm the opinion that I have just set out—that the responsible clinician can authorise “leave of absence” in another hospital, with the patient being kept in custody so long as this is seen to be in the patient’s best interests.
Unfortunately, it also appears that there is more than one way of interpreting Section 17(3). There are those who maintain that what one might call the carte-blanche interpretation is too broad a reading of Section 17(3), which they insist needs to be read with Section 63 of the Act. Section 63 says:
“The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering, not being a form of treatment to which section 57, 58 or 58A above applies, if the treatment is given by or under the direction of the approved clinician in charge of the treatment”.
Taken together, those two sections say that the Mental Health Act authorises treatment only for mental disorders and physical disorders that are part and parcel of the treatment for the mental disorder; in other words, for treatment of physical disorders that are not directly connected to the mental disorder, a court would need to make the appropriate order under the Mental Capacity Act. Who is right? I should be very grateful if the Minister would use this opportunity to bring some clarity to bear on this area of the law, around which there appears to be a veil of fog. Whatever the answer, will she ask NHS England to examine the guidance contained in the relevant part of the code of practice to ensure that it is as clear as possible about what the current law permits?
Finally, I shall comment briefly on Amendment 149, which the noble Baroness, Lady Keeley, has tabled jointly with the noble Baroness, Lady Barker. I fully support this amendment. At the same time, I regret that it appears to be necessary, and I say that with some personal feeling. The issue addressed by this amendment is precisely the same as the one which in 2014, as a Health Minister, I endeavoured to close down by means of a government amendment to the Care Bill, which now forms Section 73 of that Act.
Baroness Merron (Lab)
My Lords, I am grateful to the noble Earl, Lord Howe, for his reflection on both the Almighty and our legal friends, and I thank noble Lords for their contributions to the debate on these amendments.
I turn first to Amendment 149 and thank my noble friend Lady Keeley, supported by the noble Baroness, Lady Barker, not just for tabling the amendment but for the time and attention they and their expert advisers have given to this. It has been much appreciated. I take this opportunity to express my condolences to the family of Paul Sammut for the tragic loss of their loved one.
We recognise the concern around unequal coverage and rights to redress under the Human Rights Act. The Sammut judgment highlighted the need to clarify the position of private health and care providers under the Human Rights Act when providing care arranged and paid for by the NHS or local authorities, something that has come up a number of times in our debates. I am grateful to my noble friend Lady Chakrabarti, the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, for their good humour and their expert contributions on this matter. We are actively considering this matter and I look forward to engaging further with my noble friend Lady Keeley and the noble Baroness, Lady Barker, ahead of Report.
On Amendment 160BC in the name of the noble Earl, Lord Howe, supported by the noble Lord, Lord Kamall, deprivation of liberty for the treatment of a physical health disorder is always an important decision. We are concerned that this amendment would, in effect, remove the need for a separate authorisation where physical health treatment is needed. We do not think it is right to undermine the protections available under the Mental Health Act to patients who are already, as we have heard, in a vulnerable position.
Furthermore, the situation this amendment applies to is rare and, where it does arise, there are already frameworks in place to authorise a deprivation of liberty. These include: Section 17 leave under the Mental Health Act; deprivation of liberty safeguards under the Mental Capacity Act; and, in certain circumstances, the High Court. The safeguards provided by these frameworks are different, and decision-makers must use their professional judgment to decide which is most appropriate for the individual. We feel that retaining this flexibility is important.
While we recognise that there is, at times, confusion among clinical professionals around which legal framework to apply—it is a point well made—we do not believe that this amendment would bring the necessary clarity. We feel this is best clarified using the Mental Health Act code of practice. I say to the noble Earl, Lord Howe, that I will reflect on the detailed points that he raised and will be happy to write to him further on them. For all these reasons, I urge noble Lords not to press their amendments.
Baroness Barker (LD)
Before the Minister sits down, I thank her very much, but I wonder whether she could include some of the rest of us in her correspondence with the noble Earl? We are back to the same issue of the interface between the Mental Health Act and the Mental Capacity Act. We need to keep coming back to this to get more clarity on it, because nobody understands it now. Whatever the Minister comes up with will be only a sticking plaster until the point at which we recognise that these two pieces of legislation continue to rub up against each other and cause confusion. They need to be addressed together.
So, would the Minister please include more of us in the correspondence, including the noble Baroness, Lady Browning? A number of speeches she has made throughout our deliberations have indicated that this is exactly the sort of issue that she is concerned about, too.
Baroness Merron (Lab)
Yes indeed, I will be pleased to include the noble Lords referred to.
Baroness Keeley (Lab)
I am very grateful to all noble Lords who have spoken in the debate today, including the noble Baroness, Lady Barker, who has supported the work we have done on this, my noble friend Lady Chakrabarti and Justice, which I should have mentioned earlier. I am very thankful to the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, for bringing their expertise. I thank my noble friend the Minister for her positive response and I look forward to talking to her more about this and taking forward this amendment. But for now, I beg leave to withdraw.
Online Safety Act 2023 (Category 1, Category 2A and Category 2B Threshold Conditions) Regulations 2025
(1 day, 10 hours ago)
Lords ChamberRead Hansard Text Watch Debate Read Debate Ministerial Extracts
20:58 - Division on Lord Clement-Jones’s amendment - Ayes: 86 / Noes: 55 - Amendment agreed.
Baroness Jones of Whitchurch
That the draft Regulations laid before the House on 16 December 2024 be approved.
Relevant document: 13th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
My Lords, as the Online Safety Act sets out, the Secretary of State must set thresholds for three categories of service: category 1, category 2A and category 2B. The services that fall into each of these categories must comply with additional duties, with category 1 services having the most duties placed on them. These duties are in addition to the core duties which apply to all user-to-user and search services in scope, including illegal content duties and child safety duties.
All categorised services must comply with transparency reporting duties. They must also have terms on parents’ ability to access information about how their child used a service, in the tragic event that their child dies. Category 1 and 2A services also have additional duties to tackle paid-for fraudulent advertising. They will also have to comply with enhanced risk assessment and record-keeping duties.
The most additional obligations will fall on category 1 services. These are the services with the most users, and which spread content easily, quickly and widely. To the extent it is proportionate to do so, category 1 services must give adults more choice about who they interact with and the content they see. That includes suicide, self-harm and hate-inciting content. Additionally, category 1 services must protect journalistic and news publisher content and content of democratic importance. The duties will also hold these companies to account over their terms of service, making sure that they keep the promises they make to their users.
The Act requires that specific factors must be taken into account by the Secretary of State when deciding the thresholds for each category. The threshold conditions for user-to-user services, categories 1 and 2B, must be set on user numbers, functionalities and any other characteristics or factors related to the user-to-user part of the service the Secretary of State deems relevant. For category 2A, they must be set on the number of users of the search engine, plus any other factors or characteristics.
For category 1, the key consideration is the likely impact of the number of users of the user-to-user part of the service and its functionalities on how quickly, easily and widely regulated user-generated content is disseminated by means of the service. For category 2A, the key consideration is the likely impact of the number of users of the search engine on the level of risk of harm to individuals from search content that is illegal or harmful to children. For category 2B, the key consideration is the likely impact of the number of users of the user-to-user part of the service and its functionalities on the level of risk of harm to individuals from illegal content and content that is harmful to children disseminated by means of the services.
These considerations formed the basis of Ofcom’s independent research and advice, published in March last year, which the Secretary of State had to consider when setting threshold conditions. Once in force, these regulations will enable Ofcom to set up a public register of categorised services, which it expects to publish this summer. Ofcom will then consult on the remaining draft codes of practice and guidance, where relevant, for the additional duties.
In laying these regulations before Parliament, the Secretary of State has considered Ofcom’s advice and decided to follow it. I know that this decision will not please everyone, so let me set out why it was made.
Ofcom’s research concluded that, as the number of users of a service increases, so does how widely content spreads. The statutory consideration of category 1 under the Act is
“how easily, quickly and widely regulated user-generated content is disseminated by means of the service”.
Therefore, it was concluded that user numbers should not be ignored. Setting thresholds for category 1 that take into account the size and reach of services is also essential to make sure we avoid inadvertently categorising hundreds of small, low-risk services.
I turn now to the regret amendment that the noble Lord, Lord Clement-Jones, has tabled before the House. It is disappointing that a regret amendment has been tabled. I understand that it is because of the noble Lord’s view that risk should be the main consideration for category 1. He would ideally like to see so-called “small but risky” services, such as small suicide forums, brought into scope.
I also want to acknowledge that the successful amendment from the noble Baroness, Lady Morgan, made it possible to create threshold combinations by reference only to functionalities and any other factors or characteristics. However, in practice this was difficult to do at the time.
In setting the threshold conditions, the Secretary of State must act within the legal framework, which means he still must consider easy, quick and wide dissemination of user-generated content for category 1. He must also act within the powers afforded to him in setting the thresholds, which does not allow for sub-delegation to outside parties, such as coroners or Ofcom.
Unintended consequences were considered, including unintentionally categorising hundreds of small, low-risk services. I want to be very clear through this that the Government did consider options to bring small but risky services into scope, including those proposed by many thoughtful people on this complicated issue, but ultimately a workable and robust condition for capturing small but risky services was not found.
Lord Clement-Jones
At end insert “but that this House regrets that the Regulations do not impose duties available under the parent Act on small, high-risk platforms where harmful content, often easily accessible to children, is propagated; calls on the Government to clarify which smaller platforms will no longer be covered by Ofcom’s illegal content code and which measures they will no longer be required to comply with; and calls on the Government to withdraw the Regulations and establish a revised definition of Category 1 services.”
Lord Clement-Jones (LD)
My Lords, I am very pleased to see the Minister back in her place. I thank her for her introduction to this statutory instrument. Her disappointment at my tabling this regret amendment is exceeded only by my own disappointment at the SI. However, I hope that she will provide the antidote to the Government’s alarming tendency to pick unnecessary fights on so many important issues—a number of them overseen by her department.
Those of us who were intimately involved with its passage hoped that the Online Safety Act would bring in a new era of digital regulation, but the Government’s and Ofcom’s handling of small but high-risk platforms threatens to undermine the Act’s fundamental purpose of creating a safer online environment. That is why I am moving this amendment, and I am very grateful to all noble Lords who are present and to those taking part.
The Government’s position is rendered even more baffling by their explicit awareness of the risks. Last September, the Secretary of State personally communicated concerns to Ofcom about the proliferation of harmful content, particularly regarding children’s access. Despite this acknowledged awareness, the regulatory framework remains fundamentally flawed in its approach to platform categorisation.
The parliamentary record clearly shows that cross-party support existed for a risk-based approach to platform categorisation, which became enshrined in law. The amendment to Schedule 11 from the noble Baroness, Lady Morgan—I am very pleased to see her in her place—specifically changed the requirement for category 1 from a size “and” functionality threshold to a size “or” functionality threshold. This modification was intended to ensure that Ofcom could bring smaller, high-risk platforms under appropriate regulatory scrutiny.
Subsequently, in September 2023, on consideration of Commons amendments, the Minister responsible for the Bill, the noble Lord, Lord Parkinson—I am pleased to see him in his place—made it clear what the impact was:
“I am grateful to my noble friend Lady Morgan of Cotes for her continued engagement on the issue of small but high-risk platforms. The Government were happy to accept her proposed changes to the rules for determining the conditions that establish which services will be designated as category 1 or 2B services. In making the regulations, the Secretary of State will now have the discretion to decide whether to set a threshold based on either the number of users or the functionalities offered, or on both factors. Previously, the threshold had to be based on a combination of both”.—[Official Report, 19/9/23; col. 1339.]
I do not think that could be clearer.
This Government’s and Ofcom’s decision to ignore this clear parliamentary intent is particularly troubling. The Southport tragedy serves as a stark reminder of the real-world consequences of inadequate online regulation. When hateful content fuels violence and civil unrest, the artificial distinction between large and small platforms becomes a dangerous regulatory gap. The Government and Ofcom seem to have failed to learn from these events.
At the heart of this issue seems to lie a misunderstanding of how harmful content proliferates online. The impact on vulnerable groups is particularly concerning. Suicide promotion forums, incel communities and platforms spreading racist content continue to operate with minimal oversight due to their size rather than their risk profile. This directly contradicts the Government’s stated commitment to halving violence against women and girls, and protecting children from harmful content online. The current regulatory framework creates a dangerous loophole that allows these harmful platforms to evade proper scrutiny.
The duties avoided by these smaller platforms are not trivial. They will escape requirements to publish transparency reports, enforce their terms of service and provide user empowerment tools. The absence of these requirements creates a significant gap in user protection and accountability.
Perhaps the most damning is the contradiction between the Government’s Draft Statement of Strategic Priorities for Online Safety, published last November, which emphasises effective regulation of small but risky services, and their and Ofcom’s implementation of categorisation thresholds that explicitly exclude these services from the highest level of scrutiny. Ofcom’s advice expressly disregarded—“discounted” is the phrase it used—the flexibility brought into the Act via the Morgan amendment, and advised that regulations should be laid that brought only large platforms into category 1. Its overcautious interpretation of the Act creates a situation where Ofcom recognises the risks but fails to recommend for itself the full range of tools necessary to address them effectively.
This is particularly important in respect of small, high-risk sites, such as suicide and self-harm sites, or sites which propagate racist or misogynistic abuse, where the extent of harm to users is significant. The Minister, I hope, will have seen the recent letter to the Prime Minister from a number of suicide, mental health and anti-hate charities on the issue of categorisation of these sites. This means that platforms such as 4chan, 8chan and Telegram, despite their documented role in spreading harmful content and co-ordinating malicious activities, escaped the full force of regulatory oversight simply due to their size. This creates an absurd situation where platforms known to pose significant risks to public safety receive less scrutiny than large platforms with more robust safety measures already in place.
The Government’s insistence that platforms should be “safe by design”, while simultaneously exempting high-risk platforms from category 1 requirements based solely on size metrics, represents a fundamental contradiction and undermines what we were all convinced—and still are convinced—the Act was intended to achieve. Dame Melanie Dawes’s letter, in the aftermath of Southport, surely gives evidence enough of the dangers of some of the high-risk, smaller platforms.
Moreover, the Government’s approach fails to account for the dynamic nature of online risks. Harmful content and activities naturally migrate to platforms with lighter regulatory requirements. By creating this two-tier system, they have, in effect, signposted escape routes for bad actors seeking to evade meaningful oversight. This short-sighted approach could lead to the proliferation of smaller, high-risk platforms designed specifically to exploit these regulatory gaps. As the Minister mentioned, Ofcom has established a supervision task force for small but risky services, but that is no substitute for imposing the full force of category 1 duties on these platforms.
The situation is compounded by the fact that, while omitting these small but risky sites, category 1 seems to be sweeping up sites that are universally accepted as low-risk despite the number of users. Many sites with over 7 million users a month—including Wikipedia, a vital source of open knowledge and information in the UK—might be treated as a category 1 service, regardless of actual safety considerations. Again, we raised concerns during the passage of the Bill and received ministerial assurances. Wikipedia is particularly concerned about a potential obligation on it, if classified in category 1, to build a system that allows verified users to modify Wikipedia without any of the customary peer review.
Under Section 15(10), all verified users must be given an option to
“prevent non-verified users from interacting with content which that user generates, uploads or shares on the service”.
Wikipedia says that doing so would leave it open to widespread manipulation by malicious actors, since it depends on constant peer review by thousands of individuals around the world, some of whom would face harassment, imprisonment or physical harm if forced to disclose their identity purely to continue doing what they have done, so successfully, for the past 24 years.
This makes it doubly important for the Government and Ofcom to examine, and make use of, powers to more appropriately tailor the scope and reach of the Act and the categorisations, to ensure that the UK does not put low-risk, low-resource, socially beneficial platforms in untenable positions.
There are key questions that Wikipedia believes the Government should answer. First, is a platform caught by the functionality criteria so long as it has any form of content recommender system anywhere on UK-accessible parts of the service, no matter how minor, infrequently used and ancillary that feature is?
Secondly, the scope of
“functionality for users to forward or share regulated user-generated content on the service with other users of that service”
is unclear, although it appears very broad. The draft regulations provide no guidance. What do the Government mean by this?
Thirdly, will Ofcom be able to reliably determine how many users a platform has? The Act does not define “user”, and the draft regulations do not clarify how the concept is to be understood, notably when it comes to counting non-human entities incorporated in the UK, as the Act seems to say would be necessary.
The Minister said in her letter of 7 February that the Government are open to keeping the categorisation thresholds under review, including the main consideration for category 1, to ensure that the regime is as effective as possible—and she repeated that today. But, at the same time, the Government seem to be denying that there is a legally robust or justifiable way of doing so under Schedule 11. How can both those propositions be true?
Can the Minister set out why the regulations, as drafted, do not follow the will of Parliament—accepted by the previous Government and written into the Act—that thresholds for categorisation can be based on risk or size? Ofcom’s advice to the Secretary of State contained just one paragraph explaining why it had ignored the will of Parliament—or, as the regulator called it, the
“recommendation that allowed for the categorisation of services by reference exclusively to functionalities and characteristics”.
Did the Secretary of State ask to see the legal advice on which this judgment was based? Did DSIT lawyers provide their own advice on whether Ofcom’s position was correct, especially in the light of the Southport riots?
How do the Government intend to assess whether Ofcom’s regulatory approach to small but high-harm sites is proving effective? Have any details been provided on Ofcom’s schedule of research about such sites? Do the Government expect Ofcom to take enforcement action against small but high-harm sites, and have they made an assessment of the likely timescales for enforcement action?
Baroness Morgan of Cotes (Non-Afl)
My Lords, I thank the Minister for her engagement on this issue, not just with me but with Members across the House. It has been very much appreciated, including when she was not here because she was dealing with her own health issues.
When I talk about what we do here in the House of Lords, one of the great successes I point to is the scrutiny that we gave to the Online Safety Act. We did it in a cross-party way, eventually managing to persuade the Government, as well as Ofcom, about the changes that were needed. Those changes were then taken back to the House of Commons, and Ministers there conceded them. As a result of that working together, we ended up with a much stronger Bill that will do much to protect vulnerable and young people and those most at risk of harmful content online. So it is a matter of great regret that, the first time we are debating a statutory instrument of substantive interest under this Act, we—all of us, I suspect—have to say that we are deeply disappointed by the drafting that we have seen.
On 19 July 2023, I moved a very small amendment and was grateful to the House for its support. I said at the time that one change of one word—from “and” to “or”—made for a small but powerful amendment. The noble Lord, Lord Clement-Jones, set out brilliantly and comprehensively why that change was so important, so in the time available, I will not repeat what he said. The House clearly voted for change and the Minister’s own party supported that change, for which I was deeply grateful.
The other interesting thing is that Ofcom said to me that it did not object to that change. However, in its note today—I am sure that it sent the note to other Members—Ofcom talked about the harms-based approach that it is following when recommending to the Government how they should legislate under the Act. But that harms-based approach rings hollow when—through Ofcom’s interpretation, which it has given to the Government—it has ridden roughshod over looking at the risk of the small but high-harm platforms.
The draft statutory instrument is based on the number of users, and this House in its amendment made it very clear that, with harmful platforms, it is not just about the number of users they have but absolutely about the content, the functionalities and the risks that those sites will raise.
As the noble Baroness set out, Ofcom is relying on paragraph 1(5) of Schedule 11, looking at
“how easily, quickly and widely regulated user-generated content is disseminated by means of the service”.
But that paragraph says that the Secretary of State “must take into account” those things, not that the Secretary of State is bound solely by those criteria. Our criticism tonight of the statutory instrument is not just about the fact that Ofcom has chosen to take those words—I would say that Ofcom in not objecting to my amendment was being disingenuous if it already knew that it was going to rely on that sub-paragraph; the bigger question for the noble Baroness tonight is the fact that the Secretary of State did not have to accept the advice that Ofcom gave them.
The noble Lord, Lord Clement-Jones, talked, as no doubt others will, about the risk and the harm that we have seen from platforms. We will talk about the fact that for the Southport victims it needed only one person to be radicalised by a site that they were looking at to cause untold misery and devastation for families. This House voted recently on the harm caused by deepfake pornographic abuse. Again, it does not take many people to utterly ruin a victim’s life, and what about those platforms that promote suicide and self-harm content? It is not sufficient to say that this Act will impose greater burdens on illegal content. We all know from debates on the Act that there is content which is deliberately not illegal but which is deeply harmful both to victims and to the vulnerable.
As Jeremy Wright MP said in the debate on these regulations in Committee in the House of Commons, the Government are going to want or need these category 1 powers to apply to smaller, high-harm platforms before too long. Indeed, the Government’s own strategic statement published last year specifically says:
“The government would like to see Ofcom keep this approach”—
that is, the approach it has to small, risky services—
“under continual review and to keep abreast of new and emerging small but risky services, which are posing harm to users online”.
The Government and the Secretary of State already know that there are small but high-harm platforms causing immense risk which will not be caught by these regulations. As we have also heard, the flight therefore to these small, high-harm, risky platforms absolutely will happen as those who want to punt out harmful content seek to find platforms that are not bound by the most stringent regulations.
I will stop there because I know that others wish to speak. I will support the regret amendment tonight should the noble Lord, Lord Clement-Jones, decide to put it to a vote. It has taken far too long to get to this point. I understand the Government’s desire to make progress with these regulations, but the regret amendment states that it
“calls on the Government to withdraw the Regulations and establish a revised definition of Category 1 services”.
I ask the Minister to take that opportunity, because these regulations absolutely do not reflect the will of this House in that amendment. That is a great source of disappointment given the cross-party work that we all did to make sure the Online Safety Act was as comprehensive as it could be.
Baroness Kidron (CB)
My Lords, I remind the House of my interests, particularly as chair of 5Rights and as adviser to the Institute for Ethics in AI at Oxford. I wholeheartedly agree with both the previous speakers, and in fact, they have put the case so forcefully that I hope that the Government are listening.
I wanted to use my time to speak about the gap between the Act that we saw pass through this House and the outcome. What worries me the most is how we should understand the purpose of an Act of Parliament and the hierarchy of the instructions it contains. I ask this because, as the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Morgan, have already said, the Government of the day, with the express support of Members of this House, including the Front Bench of the Labour Party, agreed that categorisation would be a question of risk or size, not simply size. That was the decision of the House, it was supported in the other place, and it is in the text of the Act. So, it would be useful to understand, in the view of His Majesty’s Government, whether the text of an Act and, separately, a statement made by a Minister from the Dispatch Box, have any authority. If they do, I cannot understand how Ofcom is allowed to overturn that, or how the Secretary of State, without taking action to amend the Act, has been able to allow it to do so.
It is essential to get a clear answer from the Minister about the status of the text of the Act, because this is a pattern of behaviour where the regulator and government appear to be cherry-picking which bits of the Online Safety Act are convenient and ignoring those they consider too difficult, too disruptive, or—I really hope not—too onerous for tech companies. Ofcom has similarly determined not to observe the provisions in the OSA about functionalities contained throughout the Act; for example, at Sections 9(5), 10(4) and 11(6)—I could go on; on extended use, at Section 11(6)(f); and on the requirement to consider the needs of children in different age groups which, like functionalities, run through the Act like a golden thread.
Ofcom’s own illegal harms register risk management guidance states that
“certain ‘functionalities’ stand out as posing particular risks because of the prominent role they appear to play in the spread of illegal content and the commission and facilitation of … offences”.
Ofcom then says its regulatory framework is intended to ensure service providers put in place safeguards to manage the risks posed by functionalities. It lists end-to-end encryption, pseudonymity and anonymity, live-streaming, content recommender systems, and, quite rightly, generative AI, all as functionality that it considers to be high risk. Specifically in relation to grooming, functionalities Ofcom considers risky include network expansion prompts, direct messaging, connection lists and automated information displays.
Despite acknowledgement that functionalities create heightened risk, a clear statement that addressing risk forms part of its regulatory duties, and the clearly expressed intent of Parliament and the wording of the Act, Ofcom has failed to comprehensively address functionalities both in the published illegal harms code and the draft children’s code, and it has chosen to overrule Parliament by ignoring the requirement in Schedule 11 to consider functionalities in determining which services should be designated as category 1 services.
Meanwhile, paragraph 4(a)(vii) of Schedule 4 is crystal clear in its objective of the Act that user-to-user services
“be designed and operated in such a way that … the different needs of children at different ages are taken into account”.
Ofcom has chosen to ignore that. Volume 5 of its draft children’s code says
“our proposals focus at this stage on setting the expectation of protections for all children under the age of 18”.
Any child, any parent and anyone who has spent time with children knows that five and 15 are not the same. The assertion from Ofcom in its narrative about the children’s code is blinding in its stupidity. If common sense cannot prevail, perhaps 100 years or more of child development study that sets out the ages and stages by which children can be expected to have the emotional and intellectual capacity to understand something could inform the regulator—and similarly, the age and stage by which we cannot expect a child to understand or have the intellectual capacity to deal with something.
The whole basis of child protection is that we should support the children on their journey from dependence to autonomy because we know that they do not have the capacity to do it for themselves in all contexts, because of the vulnerabilities associated with ages and development stages. Ofcom knows that the Act says that it should reflect this but somehow feels empowered to ignore or overrule the will of Parliament and, just as with categorisation, the Government appear to condone it.
Lord Pannick (CB)
My Lords, this is a regret amendment, and the conduct of Ofcom and the Government on this matter is surely deeply regrettable, for all the reasons that have been given by the noble Lord, Lord Clement-Jones, and the noble Baronesses, Lady Morgan and Lady Kidron. The treatment of small but high-risk services in these regulations simply frustrates the amendment of the noble Baroness, Lady Morgan, to Schedule 11, which was approved by this House and accepted by the Government in the Commons. It contradicts what the Minister, Mr Scully, said in the Commons when he accepted the amendment of the noble Baroness, Lady Morgan, approved by this House, and it fails to address the mischief in this context, which the noble Lord, Lord Clement-Jones, and others have clearly identified. I, too, would like to see or even to understand what possible legal advice has led to this lamentable position. The impact of the service does not—it cannot—depend only on the number of users. That was the whole point of the amendment of the noble Baroness, Lady Morgan.
The Minister suggested two arguments, as I understood her, but it is not good enough for her to say—if I may respectfully say so—that small services are still unable to act in an illegal manner. The Act is, of course, designed to provide further regulation—especially so because the criminal law is, regrettably, a blunt and slow instrument. Nor am I persuaded by the Minister’s suggestion that it is simply too difficult to draft regulations to address small but high-risk services. I simply do not accept that the expertise of the department and parliamentary counsel cannot come up with an appropriate regulation to address this mischief.
Lord Moylan (Con)
My Lords, I wish to speak to a point made by the noble Lord, Lord Clement-Jones, in relation to Wikipedia in particular. Noble Lords who took part in Committee on the Bill will recall that on several occasions I asked the Minister at the time—now my noble friend sitting on the opposition Front Bench—whether Wikipedia would be in scope of the regulation and, if so, whether it would have consequences which would make it impossible for Wikipedia, a charity, to continue with its existing model. My noble friend was unable at the time to say that; he said it would be a matter for the regulations and, indeed, for the regulator. Now here we are, nearly two years later, and we have some regulations, and I have the same question to put to the Minister on the Front Bench today. It appears to me—I must say that I have no interest to declare other than that I am an inveterate user of Wikipedia—and as the noble Lord, Lord Clement-Jones, said, that we are still left in a state of confusion about this. Regulation 3 says that for large sites—those with more than 34 million users—two criteria have to be met. One is that it has that number of users or more, and the other is that it
“uses a content recommender system”.
In paragraph (2), a content recommender system is broadly defined; for example, it says that it is not simply algorithms by means of machine learning but algorithms by machine learning or “other techniques”. The verb is not simply “determines” but
“determines, or otherwise affects, the way in which regulated user-generated content of a user, whether alone or with other content, may be encountered by other users of the service”.
Wikipedia indeed uses techniques for sending people articles and information that relate to what they have shown an interest in in the past. Would it be caught or not? What are the consequences of Wikipedia being caught? There are many, but I would like to test one out on noble Lords. I do not claim that this is definitive law, because, I suspect, much of the Act will need to be determined in the courts before we know what the definitive interpretation is.
Let us take as an example the case of some loathsome foreign dictator or other such character whose article on Wikipedia is less flattering than he might wish it to appear and he has a complaint about this. Wikipedia will consider it and then probably throw it in the waste-paper basket. If he seeks by some means to change the content of the article, of course, the editors of Wikipedia, who are a distributed network largely of volunteers, will intervene to change it back and try to ensure that it still reflects what is known to be reality. But under Section 64 of the Online Safety Act, one may apply to become a verified user. Obviously, I do not expect the loathsome person himself to apply to become a verified user; there will be some stooge, some student, some trainee or some character somewhere willing to register on their behalf who could then change the article, but because they are a verified user, under Section 15(10)(a) of the Act, they would acquire immunity to peer review. What they wrote on Wikipedia could not then be changed by the editors, because they were a verified user and had that protection.
I offer that as a genuine possibility. Noble Lords know that I am not a lawyer. This could be tested in the courts and found otherwise but, on the face of it, it appears that this sort of consequence would accrue. So I come back to the same question that I have been asking to no real effect now for two years. Perhaps when she comes to reply, the Minister can give me a definitive answer. Is Wikipedia in scope of this regulation? Is it covered by Section 3 or not? We would like to know.
Lord Stevenson of Balmacara (Lab)
My Lords, often in this House one is tempted to wander down memory lane and is filled with wonderful memories of good times and shared experiences, but none so present as the one that was referred to by the noble Baroness when she spoke earlier about the Online Safety Bill. I felt resonances up and down my back as I remembered the moment at which I decided that there was no point in reading my speech at Second Reading, which was full of sound and fury, full of anger, full of things that I was determined to see in the Bill, but realised that we all agreed about it and that the best thing was to say simply that we would work together to get the best Bill that we could out of the resources available across the House—and they are significant. As we have heard today, that worked—or it did until today.
I am very sad that I feel I will have to support the noble Lord, Lord Clement-Jones, in only my second appearance against my party. I felt very strongly that we had an agreement in the last Parliament, signed, sealed and signified by both Houses and agreed to by the noble Lord, Lord Parkinson, who is in his place. It bound any successor Government to operate within the terms of that Act. I find it egregious that the Government are seeking a way of not doing that, for reasons that I can only guess at but seem to be more about winning friends in strange places across the Atlantic than seeing the best for our people, particularly our children, in the United Kingdom.
There is an irony in that there would have been a way of avoiding this. I do not want to embarrass the noble Lord, Lord Parkinson, again, but we adopted towards the end of the Bill what I called the Parkinson rule, and rightly so because I felt that he was brave in proposing it. It was not the convention of the time, nor a structure or system that fit well within our current procedures in this House. The intention was to recognise the complexity and difficulty in the Online Safety Bill, now Act, and to invite the Government to share with the Select Committees of both Houses —the SIT Committee in the Commons and the Communications and Digital Committee in the Lords—draft material relating to the Online Safety Bill because we had a hunch that there would be issues that would need to be hammered out more clearly and more effectively than the arrangements for dealing with secondary legislation in this House currently allow. That might change, but until it does there is no way in which we can debate and discuss except through a regret amendment—or, as one might have been tempted to do on this occasion, through a fatal Motion—to an instrument which clearly has come out wrong, does not reflect the wishes of the House and may do damage which ultimately will end up in people’s lives. The responsibility will lie with the Government if they do not listen to what we are saying today.
The Parkinson rule was accepted by the noble Lord, Lord Parkinson. I quote from Hansard, although not entirely because there are some reservations which I want to skip over, though I am sure that they can be checked out. He said that the Government would
“ensure that the relevant committees have every chance to play a part in that consultation by informing them that the process is open”—
which is good—and that they would
“where possible, share draft statutory instruments directly with the relevant committees ahead of the formal laying process … on a case-by-case basis, considering what is appropriate and reasonably practical”.—[Official Report, 19/7/23; cols. 2351-52.]
That system has not been implemented by the Government.
I wrote to my noble friend the Minister while she was ill, and she has very kindly responded to me. She says she feels that the spirit of the agreement has been carried out in how the Government told both committees that there were statutory instruments on the way and that this was sufficient to meet the implications of the Parkinson rule. Given that three days’ notice was given before they were laid, that does not meet the requirement.
Lord Russell of Liverpool (CB)
My Lords, I rise briefly to illustrate why we are as concerned as we are. One of the platforms that would not come under the categorisation that we would wish it to is Telegram. Last month, on 16 January, a 19 year-old man, Cameron Finnigan, a member of a Satanist extremist group called 764, was sentenced to six years in prison on charges including encouraging suicide and possessing indecent images of a child.
764 originates in the United States; Telegram has been used to disseminate it across the Atlantic. The FBI describes 764 as
“a network of violent extremists who seek to normalize the production, sharing, and possession of child pornography and gore material to desensitize and corrupt youth toward future acts of violence. Members of 764 gain notoriety by systematically targeting, grooming, and extorting victims through online social media platforms”,
particularly the small ones. It continues:
“Members demand that victims engage in and share media of self-mutilation, sexual acts, harm to animals, acts of random violence, suicide, and murder, all for the purpose of accelerating chaos and disrupting society and the world order”.
On that basis, you can understand completely why Ofcom thinks this is fine.
This is unacceptable and the Government really should look at this again. Above all, it is incumbent on Ofcom to recognise that to, apparently wilfully, diverge from the clear stated will of both Houses of Parliament, and what is written in the Act, is not simply inappropriate but, as other noble Lords have suggested, may well be illegal, and that should be looked into.
Baroness Penn (Con)
My Lords, I will be incredibly brief, having not been part of the collective of Peers who worked on the parent Act to this statutory instrument. The key question that has been highlighted is, what is the Government’s interpretation now of the powers in the Act? The Government’s and the Official Opposition’s interpretation at the time it was passed was that it had the power to include in category 1 providers on the basis of risk, not size. I am incredibly concerned because, in the debate in the Commons, the Minister said that
“as things stand, the Secretary of State does not have the power to include them”.—[Official Report, Commons, Third Delegated Legislation Committee, 4/2/25; col. 16.]
That was a reference to small but risky providers, and actually the Minister seemed slightly outraged at the implication that they were not acting where they should otherwise be doing so. So can the Minister clarify for this debate whether it is the Government’s position that they would like to include them and that that is the intention that they thought the Act had given them, but they cannot under the law as it is written; or that they do have the powers but have chosen not to, which is our understanding of their decision-making?
The reason that is so important is that the Minister has committed to reviewing these thresholds in future, but such reviews will have very little power if the Act itself is faulty and does not give them the ability to designate on the basis of risk, or the review is pointless because they already have the powers and the evidence of the risk of these providers but are choosing not to act.
I have another point on legal advice. In the debate in the Commons, the Minister committed to writing, including a letter from government lawyers, setting out in great detail what she was saying
“in relation to the powers of the Secretary of State in setting the categories”.—[Official Report, Commons, Third Delegated Legislation Committee, 4/2/25; col. 19.]
In other words, the letter would clarify for people what the interpretation, which has so shifted from the original debate, is from the Government. I may have missed that letter—maybe it was placed in the House of Commons Library—but perhaps the Minister could say whether the letter was written and share its content with this Chamber also, because I think that gets to the heart of what we are regretting today from the Government.
Lord Knight of Weymouth (Lab)
I just want to say very briefly that, having served alongside my noble friend Lord Stevenson on the Front Bench during the passage of this Act, I want to thoroughly endorse what he has said. I am very proud of the work that we did together—I echo what the noble Baroness, Lady Morgan, said—to try to create a piece of legislation that could work in a very complex area, and I think we did a good job.
My fear now is that, now that Ofcom, the regulator, has published its road map, it is like a juggernaut: it has just got on with delivering what it was always going to deliver and has ignored what we in this House amended the Bill to do. In that respect, it is treating us with contempt and it is important that we express our regret in one way or another this evening about the way that we have been treated. I came in wanting to be convinced by my noble friend the Minister; I am afraid that so far she has not done it.
Lord Parkinson of Whitley Bay (Con)
My Lords, I am very grateful to the Minister for introducing the regulations and to the noble Lord, Lord Clement-Jones, for tabling his amendment and for moving it in the way that he did, because it has given us the opportunity to have this very important debate on this landmark Act of Parliament.
My noble friend Lady Morgan of Cotes was right to begin her remarks by reminding your Lordships that the passage of that Act was a shining example of this House doing its job very well indeed, giving careful, considered and non-partisan scrutiny to legislation before us. The noble Lord, Lord Stevenson of Balmacara, rightly recalls the cross-party spirit that he did so much to foster from Second Reading, and it was a pleasure working with noble Lords from across the House in that spirit to make sure that the Act found its way to the statute book in the improved way that it did.
We are here tonight because of a number of amendments made to the Bill as it went through this House. The Delegated Powers and Regulatory Reform Committee of your Lordships’ House recommended in its report on the Bill that the first regulation for the category 1 thresholds should be subject to the affirmative procedure. I was glad to accept that recommendation when I was the Minister taking the Bill through, and I am glad to be here for the debate on it, albeit speaking from a different Dispatch Box.
The noble Lord, Lord Stevenson, does indeed embarrass me by citing the Parkinson rule. I said at the time that Cyril Northcote Parkinson has the better reputation for Parkinson’s laws. But that undertaking was an important one that I was happy to make to ensure that Parliament had the ongoing scrutiny. We all recognised as we passed this law that this was a fast-moving area of technology, that legislatures across the world were struggling to keep up, and that it would be important for the post-legislative scrutiny to take place in the same agile and consensual way in which we sought to pass the Act.
We are also here because of an amendment made to the Bill on Report by my noble friend Lady Morgan. Both she and the noble Lord, Lord Clement-Jones, were too gracious to recall that it took me a little longer to get there. That amendment was made despite my arguments to the contrary. My noble friend pressed her amendment, defeated me and the previous Government and changed the Bill. When the Bill was in another place, the Government accepted her point.
I was helped along the way in that legislative journey by clear exhortations from noble Lords on the Labour Front Bench who were then in opposition. In our debate on my noble friend Lady Morgan’s amendment on 19 July 2023, the noble Lord, Lord Knight of Weymouth, who I am glad to see in his place, albeit now on the Back Benches, said that my noble friend’s amendment was a “no-brainer”. He pointed out that the Bill, as it stood,
“requires Ofcom to … be mindful of size”,
but argued that:
“We need to be more nuanced”.—[Official Report, 19/7/23; col. 2344.]
and that it was right to give Ofcom leeway or flexibility in the categorisation and to bring providers into the safety regime.
Those points were echoed in another place by Alex Davies-Jones, the Member of Parliament for Pontypridd, who is now a Minister at the Ministry of Justice with responsibility for tackling violence against women and girls, rape and serious sexual offences, child sexual abuse and many other very serious matters. In opposition, following that debate, she made the point that:
“Categorisation of services based on size rather than risk of harm will mean that the Bill will fail to address some of the most extreme harms on the internet”.—[Official Report, Commons, 12/7/22; col. 168.]
I wonder what Ms Davies-Jones says now that she is at the Ministry of Justice.
I am very grateful to Ofcom. I had a helpful phone call last week with Robert Brown and Mark Bunting of Ofcom to understand its approach. My criticisms are directed at the Government, not at Ofcom. Without wanting to rehearse my old job, I will help the Minister by pointing out that many of the concerns raised are covered by the Bill.
The Bill is very clear that the duties to act on illegal content and to protect children apply to services of every size. Some of the points made, including the very moving and harrowing examples given by the noble Lord, Lord Russell of Liverpool, may well be covered by the illegal duties and the protection of children duties, and the Minister was right to point that out. But there is a shift in approach from the commitments I made at the Dispatch Box when I was a Minister and the decision that Parliament took in backing my noble friend Lady Morgan’s amendment. I am interested in why the Government have changed their mind, particularly having been so strongly in favour of making those changes to the Bill when in opposition.
In her opening remarks, the Minister used the ubiquitous phrase “unintended consequences”. She mentioned that the Government did not want unintentionally to categorise hundreds of small and non-risky services, but would that necessarily be the case? Surely a granular case-by-case categorisation would not bring in so many hundreds. It seems that she and the Government are leaning rather heavily on other parts of the Act that talk about the quick, easy and wide dissemination of material online. I wonder whether the “and wide” part of that is doing a lot of heavy lifting here. Is that what is making the Government make the connection to the size? Is the width of dissemination driving the policy decision here? And it is a policy decision. The Government are not bound to follow the advice that Ofcom has provided; they can disagree with it.
In the debate in another place on these regulations, my right honourable friend Sir Jeremy Wright, a former law officer, said it would not be right to ask the Government to provide the legal advice they have had on these matters, but like the noble Lord, Lord Pannick, I would be very interested in seeing that. I wonder whether the Minister is able to say a bit more about the legal basis on which they have decided that they are unable to disagree, or are not inclined to disagree, with Ofcom on this. I hope she will be able to give a very clear answer to the very clear question posed by my noble friend Lady Penn, who put very well the question about legal advice and the Government’s room for manoeuvre here.
Baroness Jones of Whitchurch (Lab)
My Lords, I acknowledge all the hard work, and the cross-party consensus, that went into creating the Online Safety Act. For all the questions that noble Lords are raising today, it is still seen as being a global leader on online safety, so it is certainly nothing we should be ashamed of. I still believe it will be transformative when it is rolled out in the next few weeks and months, when it really will begin to have an impact. I pay tribute to those who did all that work at the time.
There has been a suggestion that we have just kowtowed in some way. I cannot tell noble Lords for how many hours, days and weeks my office and the Secretary of State’s office have pored over the detail of this to make sure that we feel we are doing the best we can to implement the Act in the way that was intended. Noble Lords who have read the draft statement of strategic priorities, which we sent to Ofcom, will see that we are reiterating a lot of the issues that colleagues around the Chamber are raising today. They are our priorities as well. It came down to the practicalities of some of the issues we were being asked to enforce. I hope that in my responses now I can address some of those questions.
I should be specific about the user number thresholds that have been chosen. In response to the noble Baroness, Lady Morgan, the noble Lord, Lord Parkinson, and others, just to put it on the record, I note that Ofcom recommended category 1 threshold combinations of either: user numbers of more than 7 million UK users in addition to the functionality of forwarding or resharing user-generated content and the characteristic of a content recommender system to be met; or user numbers of more than 34 million UK users and a content recommender system to be met.
Ofcom specifically set out in its research and advice, published last March, that it considered but discounted a recommendation that allowed for the categorisation of services for category 1 by reference exclusively to functionalities and characteristics. That was because the research indicated that user reach has an important role to play in content dissemination. Ofcom made a regulatory judgment on where to set the user number thresholds, based on an assessment of what comprised targeted and proportionate regulatory action. Ofcom also undertook sensitivity testing on the thresholds.
In this debate it has been clear that some, such as the noble Lord, Lord Clement-Jones, think there will be services—particularly, as we have been debating, small but risky services—that evade the core duties of the Act. I want to assure noble Lords that the legislation does not allow for that. All regulated user-to-user services and search engines, no matter what their size, will be subject to the existing illegal content duties and, where relevant, the child safety duties; the categories do not change that.
The codes on illegal content duties, which were laid in Parliament, have passed the objection period and may now be issued by Ofcom. The duties should be in effect next month. They will force services to put in place systems and processes to tackle illegal content and require services to name a senior person accountable for compliance. If a service is likely to be accessed by children, the child safety duties will require services to conduct a child safety risk assessment and provide safety measures for child users. We expect that these duties will come into effect this summer, on the basis that the codes for the duties will be passed by then. Together, the illegal content and child safety duties will mark the biggest material change in online safety for UK citizens since the internet era began. By Ofcom’s own assessment, the Act may cover up to 100,000 services of various sizes, showing that the legislation reaches far and wide to ensure important protections for users, particularly children, online.
The noble Lord, Lord Clement-Jones, my noble friend Lord Stevenson, and the noble Baronesses, Lady Morgan and Lady Kidron, asked why category 1 thresholds are not risk-based. I will now turn to that.
The decision of the Secretary of State to set the categorisation thresholds as per Ofcom’s recommendations, rather than deviating from its research, was as follows. When the OSA was introduced, category 1 thresholds were due to be assessed based on the level of risk of harm to adults from priority content disseminated by means of the service. As noble Lords will know, this was removed during the passage of the Bill by the then Government and replaced with consideration of the likely impact of the number of users of the service, its functionalities, and how easily, quickly and widely user-generated content is disseminated. This was a significant change and, while the risk of harm may be seen to be a more relevant factor, this is the position under the Act as it now stands.
As I have already acknowledged, the successful amendment from the noble Baroness, Lady Morgan—which was raised by the noble Lords, Lord Clement-Jones and Lord Parkinson—did make it possible to require threshold conditions on functionality and characteristics to be met without user numbers. However, as I have set out, the considerations within the Act, Ofcom’s research and advice, and the risk of unintended consequences have meant that it is not currently workable to ignore user numbers when setting a threshold for category 1.
Baroness Morgan of Cotes (Non-Afl)
The Minister is setting out a clear case, with which I, and I think many others in this House, disagree. To cut to the chase, the Minister has just said that the Government understand the amendment passed in this House on 19 July 2023 but have decided, on the advice of Ofcom, that that amendment does not work and therefore should be ignored. We should be clear that that is what has happened. The Government should own that decision and the House, when it votes on the amendment tonight, will decide whether it thinks that is an acceptable way to behave or an unacceptable way to behave.
Baroness Jones of Whitchurch (Lab)
I can only reiterate what I have already said: we took Ofcom’s advice after a great deal of scrutiny of why it had come to that piece of advice. Its advice was that the key factor to be taken into account was how easily, quickly and widely content is disseminated. That is the basis on which we made that decision.
Lord Stevenson of Balmacara (Lab)
Sorry to interrupt but, to return to the point made by the noble Baroness, Lady Morgan, is it the Government’s position that, although the law says it is permissible, and indeed was expected, that in making their decision about category 1 the Government would require Ofcom to ensure that both reach and risk were taken account of, the Government have decided that only reach will be taken account of?
Baroness Jones of Whitchurch (Lab)
Ofcom’s advice was that how easily, quickly and widely content is disseminated are the key factors that it needed to make the judgment. I cannot say anything more than that.
Baroness Kidron (CB)
I am sorry to interrupt, but maybe this would be a good moment to answer my question about the hierarchy of text in an Act versus the regulator’s advice. It was my understanding, when the House agreed to that amendment, that it was an instruction to the regulator rather than something “nice to have” if it decided later that it did not like it.
Baroness Jones of Whitchurch (Lab)
The SI before us today, based on Ofcom’s advice, is the best way that we can find, in terms of practicality, of enforcing what was written in the Act.
Baroness Penn (Con)
Does the Minister accept that the Act does not oblige the Secretary of State to follow Ofcom’s advice, and that the Government have a separate decision-making moment—a process—to consider that advice and reach their own decision? So it is not on Ofcom; it is on the Government. It is the Government who think it is the correct way forward to ignore what was previously in the Act.
Baroness Jones of Whitchurch (Lab)
The noble Baroness is right that that is a factor that we considered. The Secretary of State received Ofcom’s advice, duly reflected on it, looked at all the evidence and decided that we would abide by Ofcom’s advice on the issue. It was the Secretary of State’s decision, and that is why we have this SI in front of us today.
Lord Russell of Liverpool (CB)
The Minister heard the example that I gave and is aware of the harm that was done as a result of using the small channel Telegram. For harm to be done, the material does not need to be widely disseminated; it is disseminated through a very small group of hardcore believers in some of these strange cults, and that is how the harm is done. The fact that it is not widely disseminated is completely irrelevant. One person taking that onboard and then doing something unmentionable should be against the Act as it was written and as we understood it would be legislated for, with the approval of both Houses of Parliament. The breadth and extent of dissemination and the number of users are irrelevant.
Baroness Jones of Whitchurch (Lab)
My Lords, the whole “small but risky” issue that the noble Lord is raising is hugely close to our heart. We have engaged with Ofcom and pressed it to take more action on the sort of small but risky services that he is talking about. Our view is that they do not necessarily have to be dealt with under the categorisation process; there are other ways. Ofcom has assured us, in the way that it has come back to us, that there are other ways in which it is addressing them.
It is not as though they have been discarded. It is an absolute priority for this Government that we address the “small but risky” issue, and we are doing so. We are working with Ofcom to make sure that that is followed through. As I said when I opened this debate, the fact is that we have worked with Ofcom and it is setting up a task force to look at this, while separately we are looking at these issues. What more can we do? On the position at the moment regarding the rollout of the SI and the categorisation, the reality is that Ofcom’s research and advice, and the risk of unintended consequences, means that it is not currently workable to ignore user numbers when setting category 1 and so on.
Lord Parkinson of Whitley Bay (Con)
The Minister rightly said “currently” and, even if that is the case, why are the Government closing the door to having this option available to them and Ofcom later? She is right that Ofcom is doing a lot of work in ways other than categorisation, but surely she and her colleagues in government can see that this is a useful tool to have in the armoury in the fight against the sorts of harms noble Lords have been raising. Why are the regulations written so tightly as to close that off and avoid taking the concession that was so hard won by my noble friend Lady Morgan and others when the Bill went through Parliament?
Baroness Jones of Whitchurch (Lab)
My Lords, I can only say what I have already said on this. We are looking at “small but risky”. Ofcom is working hard on this, and we are working hard on this. We can review whether the categorisation process is working. As I have already set out, that option is available to us further down the line. But, at the moment, as with other parts of the Online Safety Act, we felt we needed to get on with it and put these measures into place. Already, the categorisation provisions will take another year or 18 months to come into effect, so it is not as though that is the most imminent part of the implementation of the Act. I hear what noble Lords say. None of these issues are off the table, but we just wanted to get the Act rolled out in as quick and as current a form as we could.
If I could move on, in response to the questions raised by the noble Baroness, Lady Kidron, and the noble Lords, Lord Pannick and Lord Parkinson, I am not able to share the legal advice, but, as I have said, the Secretary of State must act within the legal framework. The current thresholds are legally valid and have been considered by the Joint Committee on Statutory Instruments. In addition to small but risky services, even though in principle there is a provision that allows a user number threshold not to be met, it does not for example allow for sub-delegations to other parties such as coroners, which was another concern of the amendment from the noble Baroness, Lady Morgan.
The decision on the categorisation thresholds has led, as I have just been saying, some to assume that certain small high-risk services are being overlooked by the legislation. However, this is not the case, as they will be subject to the stringent illegal harm and child safety duties. I know that Members are aware that the categorisation of small but risky services would also not prevent or deter users who were determined to access harmful content on dedicated forums. Moreover, the noble Lord, Lord Clement-Jones, raised the question of small but risky services evading the core duties, such as the terms of service and user empowerment. Services that exist solely to host abusive or pro-suicide content, for example, will not have terms of service banning such content, so enforcing those terms would be ineffective in reducing harm.
In addition, the user empowerment tools will enable adult users of category 1 services to avoid certain types of content, such as harmful suicide content. We anticipate that these duties will be most beneficial when services have commercial incentives to prohibit harmful content and where users wish to avoid content they may otherwise see, but not where users are actively seeking out harmful content.
I hope that begins to explain the Secretary of State’s decision. I have to say, and have said, that it was a difficult one and, while we acknowledge the possibility of deviating from Ofcom’s advice and utilising the option to set threshold combinations without a user number, this would not have had the effect of meaningfully reducing harm on small but risky services but would risk regulating hundreds of small low-risk services.
Regarding Ofcom’s small but risky supervisor task force, which the noble Lord, Lord Clement-Jones, asked about, I am confident that Ofcom can effectively use that task force to address these issues. Ofcom already had plans to ensure compliance with the first duties that go live under the Act. These include using targeted enforcement action against small risky services where there is evidence of a significant ongoing risk of harm to users, especially children, and an apparent lack of safety measures in place. In serious cases, Ofcom can seek a court order imposing business disruption measures if there is evidence of continued non-compliance. This could mean asking a third party to withdraw from the service or asking an internet service provider to limit access.
I hope that, as the child safety and illegal content duties come into force this year and the work of the task force begins, those in this House who are concerned will be able to see how these services will not evade their responsibilities under the Act.
Regarding Wikipedia, in response to the questions raised by the noble Lords, Lord Clement-Jones and Lord Moylan, the Government are not in a position to confirm which services will be designated as category 1. Indeed, this is Ofcom’s statutory obligation once the regulations have passed and are in force. It is worth noting that many of the duties on categorised services are subject to the principle of proportionality. This requires Ofcom to consider measures that are technically feasible to providers of a certain size or capacity. Where a code of practice is relevant to a duty, Ofcom must have regard to a principle of proportionality. What is proportionate for one kind of service might not be proportionate for another.
The noble Lords, Lord Clement-Jones and Lord Moylan, also queried how Ofcom could make assessments against the definitions of certain functionalities, characteristics and user number thresholds in the statutory instrument. Once the regulations have been approved by Parliament, Ofcom will issue requests for information and will start assessing services against the threshold conditions.
I also understand that there has been concern that small low-risk platforms, such as local community forums, are being overburdened by the Act and its duties. I must reiterate that these platforms, often run by a small number of users, will not be captured by the categorisation thresholds debated today. At the same time, I acknowledge that the new illegal content and child safety duties will require some additional work from these types of services.
I assure those here today that the principles of proportionality and risk are embedded into the duties on services and Ofcom in relation to the codes of practice. This means that small and low-risk services should not be overburdened by the duties in the Online Safety Act. In efforts to ease the process for small services, Ofcom is providing support to online services to help them to understand their responsibilities under the UK’s new online safety laws. These can be found on Ofcom’s website.
My noble friend Lord Stevenson raised the question of engagement with relevant committees. I agree about the importance of parliamentary scrutiny of the implementation of the Online Safety Act and welcome the expertise Members of both Houses bring. The Government agree that it is vital that regulators are accountable for their services, including through existing annual reports and reporting requirements. We will continue to work with the House of Lords Communications and Digital Committee and the House of Commons Science, Innovation and Technology Committee to support their ongoing scrutiny, as well as any other parliamentary committees that may have an interest in the Act. I am more than happy to meet my noble friend Lord Stevenson to discuss how that could be progressed further.
In response to the noble Baroness, Lady Penn, I want to put on record that a letter was shared with the Delegated Legislation and Regulatory Reform Committee in response to concerns raised during the Commons debate.
I must again stress that the Secretary of State will be holding these thresholds and the wider regulatory framework under review going forward and the Government will take whatever action is necessary to tackle risky services of any size.
I would finally like to thank all those who have contributed today: the noble Lords, Lord Clement- Jones, Lord Pannick, Lord Moylan, Lord Stevenson, Lord Russell and Lord Knight, and the noble Baronesses, Lady Morgan, Lady Kidron, Lady Penn—and of course the noble Lord, Lord Parkinson, who continues to put valuable work, expertise and energy into making the UK a safer place, both online and in the material world. I specifically thank user safety groups that have engaged with the Government on this matter and, of course, the noble Lord, Lord Clement-Jones, for his dedication to his work on these issues.
I recognise that there are some who would like to see changes to this instrument and some who believe that the decisions of the Government do not align with the intentions of the Act. I hope they understand that every decision made by this Government is made with the intention of bringing about the Act in an important and timely way. For too long, children and adults in this country have had to grapple with an unsafe online environment, and the instrument that we have debated today shows real progress.
I do not shy away from the challenge we face in navigating the ever-changing online world. I recognise that the Act is imperfect. However, it is not the destination but a significant step in the right direction. There will always be more that we can do. Years of delay and lack of progress have come at an unfathomable cost for vulnerable children and adults, with lives cut short and families’ worlds turned upside down. It is time to deliver change. I hope noble Lords will consider the time pressure and the fact that we have to get on with the rollout of the Act. I urge noble Lords to approve this vital legislation today.
Baroness Kidron (CB)
I raised a number of questions and I would be grateful, if the Minister is not going to answer them in the moment, if she could write to me about the Joint Committee, the hierarchy of the Act and statements from the Dispatch Box versus this decision and other decisions.
Baroness Jones of Whitchurch (Lab)
My Lords, if I have not covered any issues, I will of course write to noble Lords to clarify any matters that are outstanding.
Lord Clement-Jones (LD)
My Lords, I shall be extremely brief. I thank all noble Lords who have contributed this evening. The noble Lord, Lord Stevenson, used the expression “emotions raised”. That is exactly what this regret amendment has done. There is real anger about the way in which this statutory instrument has been put together. I think many noble Lords who were involved in the Act were extremely proud of our work, as has been expressed.
The Minister has made a valiant attempt, but I am afraid that she has been given a hospital pass. It is quite clear that the Secretary of State did not have to accept the advice from Ofcom. Its advice about functionalities, as the noble Baroness, Lady Kidron, made absolutely clear, and the evidence that the noble Lord, Lord Russell of Liverpool, put forward, not to mention the evidence from the anti-Semitism foundation, all indicate that there is considerable belief around this House that we are not dealing with the high-risk but smaller sites such as Telegram, 8chan and 4chan.
In these circumstances, as I believe is accepted by many noble Lords across the House, the Government have got this completely wrong and it needs rethinking. Therefore, I would like to test the opinion of the House.
Mental Health Bill [HL]
Monday 24th February 2025
(1 day, 10 hours ago)
Lords ChamberMental 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-V Fifth marshalled list for Committee - (20 Feb 2025)
Baroness Fox of Buckley
“Review: impact of this Act on the prison estate(1) Within 12 months of the day on which this Act is passed, the Secretary of State must publish a review of the impact of provisions in this Act related to the treatment and care of mentally disordered persons on—(a) under 18s in youth offender institutions,(b) IPP prisoners,(c) female prisoners, and(d) any other such persons they deem appropriate.(2) In the review, the Secretary of State must assess whether, in their view, the Act provides adequate support for ongoing treatment and care of mentally disordered persons in a prison setting.”Member’s explanatory statement
This amendment requires the Secretary of State to publish a review of the impact of the provisions of the Act on prisons and to assess whether the Act provides for adequate support for ongoing treatment and care in these settings.
Baroness Fox of Buckley (Non-Afl)
My Lords, after all that excitement, I fear I may be a bit of an anticlimax, but I will carry on regardless—and let people walk out. My Amendment 160A calls for a review of the impact of the Act on the prison estate and the ongoing treatment and care of mentally disordered people in a prison setting a year after the Act passes. We have all welcomed the Bill’s commitment to ending the use of prison cells as so-called places of safety, but as some of us noted in the debate on an earlier group, the promise of, for example, a transfer to hospital for prisoners facing acute crises within 28 days is widely viewed by criminal justice stakeholders as unlikely to happen. We need to review whether such cynicism is merited, because the prison reform aspects of the Bill are not minor. They should not be treated as Cinderella clauses: they are, to my mind, crucial.
We cannot pass this Act and leave prisoners who ought to be in hospital beds abandoned in squalid conditions in jails. Additionally, it is not fair to prison staff because, to quote Andrew Neilson from the Howard League:
“Our overcrowded prison system that has been asked to do much, with too little, for too long, is ill-equipped to help people who require intensive support for their mental health”.
I recently visited Five Wells prison in Wellingborough with my Academy of Ideas hat on. The new leadership team at Five Wells is doing some fantastic work on purposeful rehabilitation activities, and we hope to do a joint project of Debating Matters Beyond Bars with it there. I chatted more generally to the team members, who have worked in a variety of prisons over the years, and they all noted that the time and emotional strain on staff when dealing with psychotic and very poorly prisoners—they gave gory examples of prisoners eating their own faeces or making very bloody attempts at self-harm, et cetera—have been totally demoralising for officers. It may have been one of the reasons for the use of the segregation units I talked about earlier. But these things have also had a destabilising and frightening impact on other prisoners. Sharing space with those with paranoid delusions and who present a violent threat to themselves and others is no joke; it makes prison difficult for everyone. So it is crucial that we get this right in the context of an overstretched prison crisis, and a specific view would focus minds.
I also think that we cannot let the Bill pass into law without acknowledging that there is considerable public disquiet about the relationship between criminal justice and mental health care. What do we do about the detention of those convicted of serious crimes due to diminished responsibility, where professionals see secure hospitals as more appropriate than prison? I am sure we can all recognise that, for many victims and their families, this hospital option can feel like an injustice.
I am, of course, thinking of the high-profile and controversial case of Valdo Calocane. According to the recently published independent investigation, it was repeated failures to treat Calocane’s paranoid schizophrenia and violent outbursts that left him free to kill Barnaby Webber, Grace O’Malley-Kumar and Ian Coates in June 2023. More pertinently in relation to the Bill, the families of these tragic victims fear that Calocane may have been spared prison due to incomplete evidence presented in court, especially about his mental capacity. This is now exposed in the 302-page investigative report, and the families have concluded:
“This was a man who actively avoided his medication and treatment, knowing that when he didn't take his medication he would become paranoid and violent”.
This is interesting for our deliberations, because we now know that the doctors responsible for Calocane’s case repeatedly ignored the nurses treating him in the community, who begged for him to be put on a CTO to ensure that he took long-acting anti-psychotic drugs. Why were they ignored? It seems that the clinical team at Nottinghamshire Healthcare Foundation Trust made decisions “influenced” by the draft Mental Health Bill 2022. Those medics were very conscious of legislation down the line that seeks to raise the threshold of detention and reduce the use of CTOs, and of the call for a reduction of compulsion in medicating patients in the community. Then there is the issue of patient rights, in Calocane’s reluctance to take medication because he did not like needles. Staff were, we are told, acutely aware of the Bill highlighting the “disproportionate” use of restrictive practices on black African or black Caribbean patients—and so on and so forth.
Baroness Tyler of Enfield (LD)
My Lords, I had not intended to come in on this group, but, having just heard the very powerful—and, in places, very alarming and harrowing—speech from the noble Baroness, Lady Fox, I will just ask the Minister whether he can explain what plans the Government have to assess and evaluate the impact of the provisions of the future Act on prisons and the criminal justice system, even if they are not planning a formal review. We need to know how the impact will be assessed.
Lord Kamall (Con)
My Lords, during the passage of this Bill, both the noble Baroness, Lady Fox, and the noble Lord, Lord Bradley, who is not in his place, have spoken passionately about people with mental health issues in prison. The noble Baroness, Lady Fox, referred to Valdo Calocane, and I know that the Government have instigated an inquiry. That particular case was the motivation for Amendments 160BA and 160BB in a later group, to which my noble friend Lord Howe will speak.
During the earlier debates on this, both at Second Reading and in Committee, I was particularly struck by the remarks of the noble Baroness, Lady Fox, on Chief Inspector Charlie Taylor’s graphic description of seriously mentally ill people in prisons being akin to a Victorian nightmare. After that debate, I read some of what Charlie Taylor had said, particularly about his visit in 2022 to Eastwood Park, where he witnessed
“bloodstains on the floor and scratch marks on the walls—evidence of the levels of distress of the women being held there”.
The noble Baroness, Lady Fox, also told the Committee about the experience of prison staff, saying that one of the most difficult things is the danger that prisoners with mental health issues pose to themselves, other prisoners and staff. In fact, Charlie Taylor gave an example of an incident when staff were
“unable to stop one inmate from repeatedly running into a brick wall due to a lack of suitable training”.
These are very important issues that the noble Baroness and other noble Lords are raising.
Given all this and its importance—I know that one of the reasons the Minister was appointed to his position was his experience and passion for prison reform—it seems reasonable to ask the Secretary of State to publish a review of the impact of this Act on prisons and to assess whether it provides for adequate support for ongoing treatment and care in those settings, including adequate staff training. I am sure this will be of help not only to the Secretary of State for the Department of Health and Social Care but to the Ministry of Justice. I look forward to the Minister’s response.
The Minister of State, Ministry of Justice (Lord Timpson) (Lab)
I am grateful to the noble Baroness, Lady Fox, for bringing this discussion before the Committee today. This amendment would introduce a new clause, making it a requirement for the Secretary of State to publish a review of the impact and assessment of the provisions of the Act that relate to care and treatment of mentally disordered persons in prisons— this includes under-18s in young offender institutions, IPP prisoners and female prisoners—within 12 months of the day it is passed.
The aim of the criminal justice reforms is to speed up access to specialist in-patient care and ensure that offenders and defendants with severe mental health needs are able to access effective and timely support in the most appropriate setting. We are committed to understanding the impact of these provisions as we monitor any available data. However, these reforms will not come into effect until at least 18 months post Royal Assent. This is to ensure that the necessary operational improvements have been made to enable them to be safely implemented.
We are working closely with health and justice partners to ensure that there is a robust implementation plan in place, and we will scope the feasibility of assessing the impact on all prisoners, including under-18s in young offender institutions, IPP prisoners and female prisoners. Our expectation is that the numbers of these cohorts affected in a prison setting will be small and are unlikely to show up in administrative datasets. However, I reiterate that everyone in our care is important—and I thank the noble Lord, Lord Kamall, for his comments about the importance of this to me. We are committed to supporting everyone’s rehabilitation, working to ensure that people stay out of prison by leaving in good health.
I am pleased with the feedback on the noble Baroness’s visit to HMP Five Wells. I too have seen some very ill prisoners in HMP Five Wells and many other prisons. That is why the Bill, and the work we are doing to improve our prisons and the chances of prisoners leaving with a one-way ticket, not a return ticket, are so important.
I reassure the noble Baroness, Lady Tyler, that there is already a robust scrutiny landscape in place. We are accountable to several key stakeholders and bodies, including His Majesty’s Inspectorate of Prisons, independent monitoring boards, the Care Quality Commission and the Healthcare Inspectorate Wales. We are committed to learning from what works and where we can improve support for vulnerable offenders with severe mental health conditions.
Baroness Fox of Buckley (Non-Afl)
Briefly, I say thank you very much to the Minister, the noble Lord, Lord Timpson, who obviously has an intimate and empathetic relationship with the prison estate and the issues that I was raising. I appreciate that he and I share very similar concerns. The difficulty is—I do not think it is just the hour—that the Bill says it will resolve things in relation to prisons but, actually, the discussion around prisons has been rather neglected. I understand why.
The reason I mentioned Mr Calocane is that a lot of the issues in the community and a lot of the public debate about mental health concern the notion of people being ill, wandering around, not being safe and so on and so forth, and I could not think of another way of raising that here. That then affects the prison estate, because people phone the police and then people get taken to prison—or they have been let out of prison when they are mentally ill, and so on and so forth. That is one thing. It requires much greater scrutiny and debate, not just through this Bill but in general in Parliament: that is the first thing. I also think that we have not got public opinion our side on this, in many ways. People are not sure why people are sent to prison in some instances and to hospital in another. I do not expect the Minister to reply, but I think that needs to be acknowledged.
Secondly, I note that, even though I used the example of Five Wells prison, if all the awful things were not happening there, it was based on prison officers’ experiences in many places. I do not want in any way to put the prison into any difficulties, because it is actually doing a very good job in very difficult circumstances. I will just say that I think that, on paper, this Bill will make a small impact, but I think there is much further that it could go. I am glad to hear that different groups will be taken seriously. I withdraw the amendment, but I think we have a long way to go and I will keep pursuing this. I thank noble Lords who spoke in support; I really appreciate that.
Baroness Tyler of Enfield
“Duty to promote mental health well-beingAfter section 142B of the Mental Health Act 1983, insert—“Duty to promote mental health well-being(1) It is a general duty of local authorities and any body in carrying out functions under this Act or the Mental Health Act 2025 to promote mental health well-being.(2) In carrying out the duty under subsection (1), local authorities and commissioning bodies must have regard to—(a) the prevention of mental illness,(b) the promotion of positive mental health,(c) the reduction of stigma and discrimination associated with mental health conditions, and(d) the provision of accessible and appropriate support services to individuals experiencing mental health challenges.(3) Local authorities and commissioning bodies must publish an annual report outlining the steps taken to discharge their duty under subsection (1), including an assessment of—(a) progress in improving mental health well-being in their area for persons affected by the provisions of this Act, and(b) any barriers to promoting mental health well-being for such persons and proposed actions to address them. (4) The Secretary of State may issue guidance on the discharge of the duty under subsection (1), and local authorities and commissioning bodies must have regard to such guidance.””
Baroness Tyler of Enfield (LD)
My Lords, there has been discussion throughout Committee about whether this Bill and our deliberations should stick strictly to detention under the Act or range wider. I know that there are different views on this issue. I have said consistently throughout our debates that we need to see what more we can do to prevent people reaching the point where the only option is being forcibly detained.
I feel that a key omission is a power around prevention. Given the cost of statutory in-patient admissions under the mental health legislation, and the stated intention of the Secretary of State to reduce hospitalisation through prevention, I find this surprising. Therefore, I have brought forward a simple amendment that would give relevant authorities the power to promote mental ill-health prevention in their communities, while of course being realistic about current financial realities.
My Amendment 160B seeks to explicitly grant relevant bodies, including integrated care boards, public health bodies and local health boards in Wales, the power to promote mental ill-health prevention within their communities. It would also empower organisations such as social care and the voluntary sector to take proactive steps in reducing the likelihood of individuals reaching crisis point and requiring detention under the Act.
I was pleased recently to have the opportunity to discuss this with the Approved Mental Health Professional Leads Network, which is very much involved in this. It expressed its support for such an approach. I think we all understand that the causes of mental health issues are complex and can be as much around societal issues, such as employment, housing and poverty, as clinical issues. That is clearly recognised in the AMHP’s role, which acknowledges that while a clinical perspective is always appropriate, other perspectives can be equally valuable. As was explained to me, at the core of the approved mental health professional’s role is a responsibility to explore less restrictive alternatives to detention for individuals in crisis.
As has been quoted a number of times in this Chamber, recently the Secretary of State said that the Government will publish a 10-year plan early next year setting out how they will deliver three big shifts in the focus of the NHS,
“from hospital to community, from analogue to digital, and from sickness to prevention”.
I see this legislation, and indeed this amendment, as an opportunity to make a reality of that statement in relation to mental health. While there will always need to be provision for statutory interventions for those who present a severe risk to themselves or others, it is surprising to me that, in this journey from hospital to community and sickness to prevention, there is no explicit mention of the promotion of good mental health within the Bill.
There is plenty of evidence of the links between prevention and reducing detention. I was going to give some examples, but the hour is late and noble Lords will be pleased to hear that I am not going to. There are also plenty of examples of alternative approaches to detention, such as crisis cafes and safe spaces, community crisis response teams, mobile mental health and social care professionals who respond to individuals in crisis, peer support networks, sanctuaries and respite services. All these have been shown to be effective in reducing the need for hospital admissions.
To conclude, by formally giving relevant bodies the power—it is a power, not a duty—to promote mental ill-health prevention, this amendment encourages a proactive rather than a reactive approach to mental health care and support, thereby, I hope, reducing reliance on crisis interventions, including involuntary detention. I beg to move.
Lord Kamall (Con)
My Lords, I thank the noble Baroness, Lady Tyler, for introducing this amendment. It is quite clear that noble Lords across the Committee agree with the Government’s commitment to move the emphasis from sickness to prevention. This amendment is clearly aimed at that, as the noble Baroness has said.
During my time as a Health Minister and since, I have met a number of community and civil society projects, charities and mental health professionals who have shared the amazing work being done across the country to improve the well-being of local communities. I put on record my thanks to the late Baroness Greengross and the noble Lord, Lord Howarth, for introducing me to the wonderful world of creative health and to the National Centre for Creative Health. Its work addresses the theme of earlier amendments from the noble Baroness, Lady Hollins, and the noble Lord, Lord Crisp, on the overprescribing of antidepressants and looking at alternatives. We are not saying that medication is a bad thing necessarily. It is very appropriate in some cases, but there are alternatives, such as social prescribing.
The late Lady Greengross introduced me to a wonderful organisation called Intergenerational Music Making, and I put on record my thanks for its work. It invited me to take part in one of its intergenerational music hubs in Guildford last December and, despite being handed a guitar to play along, I found it inspiring to see the difference that music can make in improving well-being and bringing people of all ages together, including some children from a local learning disability charity.
Noble Lords will also know of the equally amazing work done by many social prescribing organisations, using music, art, drama and green spaces. A career in creative health also opens up new opportunities for budding actors and rock stars who can train as drama and music therapists while waiting for their big break. But many do not wish to be stars and actually find their work, combining their passion with improving mental well-being, fulfilling in its own right.
However, one criticism I hear is that, although there is amazing work on well-being in different primary care settings or in different trusts and integrated care systems across the country, the challenge is how we spread the best practice across our system of health and care, while recognising that what works in one area may not always be an off-the-shelf solution in another locality.
The amendment from the noble Baroness, Lady Tyler —which says that
“Local authorities and commissioning bodies must publish an annual report outlining the steps taken to discharge their duty”
to promote mental health and well-being—may be a way to address this concern. Given that, I hope it is an amendment that the Government will consider. If not, perhaps the Minister can tell your Lordships how the Government intend to encourage the sharing of best practice in improving mental well-being across our system of health and care, particularly across different communities with different needs and different constraints, in order to improve the mental well-being of the nation.
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Merron) (Lab)
My Lords, I thank the noble Baroness, Lady Tyler, for tabling Amendment 160B. We recognise the importance of local organisations taking collective action to promote mental well-being and prevent mental ill-health. However, turning to the amendment very specifically, we do not feel that this amendment suggests the best approach, as there is potential for introducing unnecessary burdens on local authorities and commissioning bodies. It may also be duplicative of other existing duties, such as the Care Act duty, to promote individual well-being.
However, the noble Baroness, Lady Tyler, and the noble Lord, Lord Kamall—whom I also thank for his contribution—may be interested to note that the existing prevention concordat for better mental health, a voluntary agreement signed by local authorities and integrated care boards across the country, does involve, for those who sign it, a commitment to take
“evidence based preventive and promotional action to support”
population mental health and well-being.
Through the NHS 10-year plan, which the noble Baroness referred to, and as noble Lords are aware, we aim to encourage stronger partnership working between local government mental health services and the voluntary and community sector—which, as we know, plays a vital role, as the noble Lord, Lord Kamall, described—in order to galvanise that shift, which we all seek, from sickness to prevention. On the basis of the reasons outlined, I hope the noble Baroness will withdraw her amendment.
Baroness Tyler of Enfield (LD)
I thank the Minister for her remarks and the noble Lord, Lord Kamall, for his. I am interested to hear about the prevention concordat and hope to hear more about that; I think that could be a useful way forward. Overall, I remain of the view that having something about prevention in this Bill—we have not got it yet—sends out an incredibly important signal.
I am very happy to accept that the way it is currently worded may not be the best and that we could find other ways of doing it. But I would be really disappointed if, in the final piece of legislation, we do not, in some way or another, have something that underlines the importance of prevention. I am not going to go over all the arguments again. I can see us returning to this on Report and, on that basis, I withdraw my amendment.
Earl Howe
“Duty to publish investigations(1) The Mental Health Act 1983 is amended as follows.(2) After section 54A insert—“54B Duty to publish the outcome of investigations(1) Integrated care boards, hospital managers and the relevant authority must, if requested to do so by the court, publish any report, review or investigation that they have undertaken in relation to a relevant patient.(2) For the purposes of this section, a “relevant patient” is a patient who–(a) has received treatment under this Act,(b) is currently receiving treatment under this Act, or(c) has been detained under this Act, andhas been sentenced for a “specified offence” under section 306 of the Sentencing Act 2020.””
Earl Howe (Con)
My Lords, I beg to move Amendment 160BA and will speak to Amendment 160BB. These amendments, tabled in my name and that of my noble friend Lord Kamall, stem directly from the harrowing case of the murder of three people by Valdo Calocane in Nottingham. The Minister and, indeed, other noble Lords may question the propriety of referring to an individual case in this way. However, I believe that this is one occasion on which it is legitimate to do so.
The amendments I have tabled were drafted in the light of the facts that have emerged from the full independent investigation into the care and treatment of Valdo Calocane in the months leading up to the tragic events of 13 June 2023. There have also been press articles on a report by the Independent Office for Police Conduct, the IOPC, which identified 11 mistakes in the run-up to that fateful day. There is a great deal about the case that is known and not disputed, and, given the magnitude of the tragedy, it would be remiss of this Committee not to spend at least a little time considering its implications.
Before I go further, there are two things I need to say. The first is to acknowledge that the Government have agreed to a judge-led public inquiry that will start in a matter of weeks. Secondly, on that account I will do my utmost to avoid saying anything that would undermine that inquiry.
There are a number of issues arising from the treatment of Valdo Calocane that are directly relevant to the Bill because they are of wider application. The report of the independent investigation recounts the timelines associated with Calocane’s treatment. His first contact with mental health services was on 24 May 2020, when he was arrested for criminal damage and a Mental Health Act assessment was undertaken. That assessment indicated that Calocane was experiencing the first episode of psychosis brought on by sleep deprivation and social stressors.
During that first contact, he was not detained for treatment as he acknowledged that he required help for his condition. However, after returning home, Calocane was arrested again and, on admission, was considered not to have capacity to consent and was consequently detained under Section 2 of the Mental Health Act. After that episode of treatment, he was again detained on 13 July 2020, this time under Section 3 of the Mental Health Act. Upon discharge, he was
“considered to have a primary diagnosis of paranoid schizophrenia and was to continue with antipsychotic medication”.
During the course of 2021, Calocane was detained again under Section 2 of the Act and continued treatment in the community. He began missing appointments with his care co-ordinator and mental health care team from July 2022. On 4 August, the care co-ordinator attempted to make a home visit, but the given address was incorrect. On 17 August, the care co-ordinator attempted to reach Calocane at a new address, which received no response.
The report then states:
“On 23 September 2022 it was documented that as no contact had been made with VC, a decision was made at an MDT meeting on the 22 September to discharge VC back to his GP due to non-engagement. A letter to VC’s GP was written the same day, outlining non-contact and that VC had been discharged”.
The key aspect of all this is the problematic last line:
“There was no contact between VC and mental health services or his GP between this date and the tragic incidents in June 2023”.
For a whole nine months prior to the killings there was no contact between any health service and Calocane. What this demonstrates is that the co-ordination of the community aspect of Calocane’s care was clearly inadequate. After he began to miss appointments, it appears that there may not have been sufficient attempts at outreach. There were evidently issues with maintaining contact between mental health services and the patient.
It is this issue that my Amendment 160BB tries to address. The amendment takes the form of a report on continuity of care, to ensure that all options can be explored. I do not profess to have the answers but, as proposed subsection (2) in the amendment makes clear, such a report must include discussion of the possibility of creating some form of duty, placed on ICBs and/or hospital managers, to
“maintain contact with patients known to have a mental disorder”.
This is not too far from one of the recommendations of the independent investigation, which said:
“NHS England and other national leaders, including people with lived experience, should come together to discuss and debate how the needs of people similar to VC are being met and how they are enabled to be supported and thrive safely in the community”.
The point is that, somewhere along the line, the mental health care system failed Valdo Calocane and ultimately his victims and the wider public. As we debate this Bill, we have the opportunity to address these potential failures, in the hope that we can make progress towards minimising the number of patients who slip through the net in this way.
The second issue to arise from the case relates to the publication of the investigation. Noble Lords will remember that controversy arose when the NHS trust responsible refused to publish the full version of the independent investigation into the treatment of Valdo Calocane, due to patient confidentiality. We all know that the NHS did subsequently publish this investigation—I have just referenced it above—but this was not without significant public and political pressure.
There are questions to be answered about whether patient confidentiality rules should apply in cases such as this, where there is a significant public interest. Of course, there should always be adequate safeguards to ensure that a patient’s medical records are protected, but, as my Amendment 160BA sets out, where there have clearly been significant institutional failings regarding a patient who has been treated under the Mental Health Act and who has then gone on to commit a violent offence, it may very well be in the wider public interest for such investigations to be published in full.
I am under no illusion that this amendment is the absolute best solution to the problem. But I hope it at least starts a conversation and pushes the Government to review their approach to publication. There are obviously a number of concerns raised by these harrowing events. We obviously must do better. In the light of the published report, does the Minister believe that there are any measures that could and should be taken now, prior to the report of the judge-led inquiry? I thank the Minister in advance for the considered answer that I know that she will give. I beg to move.
Baroness Tyler of Enfield (LD)
My Lords, I rise quickly to say that I am very sympathetic to the aims behind these two amendments. They have been set out very powerfully and comprehensively by the noble Earl, Lord Howe. I feel, particularly, that an obligation to publish a report of an investigation of the type we have just heard about is absolutely essential if we are to avoid a repetition of these terrible events. There must be a way of learning lessons from this, and transparency and publication are an important part of that.
Baroness Fox of Buckley (Non-Afl)
My Lords, I was pleased to see these amendments as well. The noble Earl, Lord Howe, explained why they are important. He has conceded—I tried to imply the same in my own amendment—that it is not necessarily clear how best to raise these issues, but that we need to. If we are seen by the public discussing a mental health Bill, going through the whole thing and refusing to acknowledge one of the big controversies of recent times, which was a mental health issue, it will discredit the Bill when it becomes an Act.
In relation to the reluctance of the NHS trust to publish its investigation and the use of patient confidentiality, I note that the families of the victims saw this very much as an excuse and were very angry about that. It does not help us to have a discussion with the public about mental illness because it then seems as though murder was committed but, somehow, mental illness was used as an excuse. We have all heard that argument being used; that is why I referred to the fact that there was some dispute about whether Calocane should be sent to prison or to hospital. The more openness that we can give this, the less stigma and confusion there will be. We need to have this debate out in the open.
Finally, I have a question on the judge-led inquiry and what we now know from the investigation by the trust. How will that impact this Bill? How, practically, will we be able to incorporate what we have learned from that into our discussion on a whole new piece of legislation on mental health? It would seem that we need to be able to take on board some of the recommendations of the inquiry and what we now know from the investigation by the trust.
Baroness Merron (Lab)
My Lords, I thank the noble Earl, Lord Howe, for tabling Amendments 160BA and 160BB, supported by the noble Lord, Lord Kamall, and spoken to by the noble Baronesses, Lady Tyler and Lady Fox.
I say at the outset that I understand the deep concerns raised today by noble Lords. I would like to take this opportunity to express my sincere condolences, and I am sure those of the whole of your Lordships’ House, to the families of Grace O’Malley-Kumar, Barnaby Webber and Ian Coates. The Secretary of State and I have met the bereaved families following these horrific killings, and, rightly, important actions have been taken, which the noble Earl, Lord Howe, asked about. Indeed, we have to look at what improvements must be made, both at the trust and across the country.
To take this further, NHS England and the Nottinghamshire Healthcare NHS Foundation Trust have accepted all of the recommendations made following the Section 48 CQC review into this incident, and action has started on implementation. The recently published independent investigation into the care and treatment provided to Valdo Calocane makes a series of recommendations, which NHS England and the Nottinghamshire Healthcare NHS Foundation Trust have accepted. I reiterate that the Government expect to see swift action to ensure that the recommendations are implemented as soon as possible. As the Prime Minister has confirmed, and as the noble Earl, Lord Howe, acknowledged, there will be a judge-led, statutory public inquiry into this tragic incident.
I now turn specifically to the amendments, and first to Amendment 160BA. We recognise the importance of transparency when there are concerns around a patient’s care, to enable a full understanding of what went wrong and how learning can be applied as a result. The courts already have legal powers to request, and where appropriate compel, disclosure of relevant reports, ensuring judicial access to relevant information. In criminal and civil proceedings, courts can make orders that particular information be provided, or issue witness summonses, while coroners can obtain documents as part of an inquest. There is no clear evidence that courts face systemic barriers in accessing necessary information.
There are also existing mechanisms to provide robust oversight and transparency. NHS England’s patient safety incident response framework sets out clear guidelines for responding to serious incidents involving patients who are detained under the Mental Health Act. Additional scrutiny is provided through investigations by the Health Services Safety Investigations Body and oversight from the CQC.
If information is not disclosed, interested parties already have mechanisms to access information, including judicial review, freedom of information requests and the coronial process for deaths in detention. While courts have the powers set out in the amendment, we absolutely recognise the importance of openness in mental health services, which is why officials are working with NHS England to ensure that information from investigations is as transparent as possible—something that all noble Lords have rightly referred to.
Earl Howe (Con)
My Lords, I am grateful to the noble Lords who have spoken in this debate. While the Calocane tragedy provided the trigger for these amendments, there are messages sent out from that case that are of wider and more general application that it would not be inappropriate for the department and NHS England to think about now, and I am glad that such consideration is being given as we speak. I recognise that there are established processes set out in the community mental health framework, among other places, but those processes clearly failed, which is why the Calocane case is such a seminal one.
The inquiry will no doubt shed further light on who bears responsibility for what happened, but that is not my concern today, as I am sure the Minister will appreciate. My concern is that practical steps could be taken, perhaps in the areas of professional training, updating the code of practice and the revision of standard referral protocols—the Minister has spoken broadly about those sorts of things, which I very much welcome. I will give further thought to this very vexing set of issues between now and Report but, for now, I am content to withdraw the amendment.
Baroness Tyler of Enfield
Baroness Tyler of Enfield (LD)
My Lords, I will speak to Amendments 160C and 160D in the name of my noble friend Lord Scriven. These amendments would ensure that any changes to this primary legislation implemented through secondary legislation were properly considered by Parliament before they took effect.
Amendment 160C makes it clear that certain provisions in subsection (5) should not be included under the general powers in Clause 51, and Amendment 160D then strengthens parliamentary oversight by requiring that any statutory instrument amending or revoking this primary legislation be approved by both Houses before it comes into force; that is, by using the affirmative procedure.
This is a matter of proper scrutiny. Primary legislation is carefully debated before it becomes law, as we have demonstrated throughout this Committee stage, and any later changes to it should not be made too easily or without full consideration. If a statutory instrument can amend or remove part of an Act without Parliament’s approval, there is a risk that important legal protections could be altered without proper deliberation.
This is particularly important in the context of mental health legislation, where the law directly affects the rights, personal liberties, and treatment and care of highly vulnerable people. I hope that the Government will recognise that these amendments, which are completely in line with the recommendations of the Delegated Powers and Regulatory Reform Committee, simply ensure that when primary legislation is changed, it is done with the same level of scrutiny that was given to it in the first place. I beg to move.
Earl Howe (Con)
My Lords, I will keep this brief since I can do no more than back the noble Baroness, Lady Tyler, in every word that she has said in support of these two amendments. We are dealing here with a Henry VIII clause that is surely far too permissive given the great sensitivity of the Bill’s entire subject matter and, as the noble Baroness said so well, its momentous significance for the health and well-being of very vulnerable people.
The absolute minimum that Parliament can expect is that Parliament be consulted in the exercise of these powers. The affirmative procedure is therefore entirely appropriate for any statutory instruments made under this clause and I hope the Minister will not disagree with what is proposed.
Baroness Merron (Lab)
My Lords, I thank the noble Lord, Lord Scriven, for tabling Amendments 160C and 160D, which were introduced by the noble Baroness, Lady Tyler, and spoken to by the noble Earl, Lord Howe.
The proposal in the amendment, as was referred to, was a recommendation in the report from the Delegated Powers and Regulatory Reform Committee. I hope that your Lordships’ Committee will welcome that we are actively considering this proposal and will publish our response to the committee’s recommendation ahead of Report.
Baroness Tyler of Enfield (LD)
My Lords, I very much welcome the statement we have just heard from the Minister. I think it is a good point on which to finish our deliberations tonight and I thank her very much. I also thank the noble Earl, Lord Howe, for his support. I beg leave to withdraw the amendment.
Baroness Merron
“Power of Welsh Ministers to make consequential provision(1) The Welsh Ministers may by regulations made by statutory instrument make provision that is consequential on this Act.(2) The only provision that may be made by virtue of this section is provision that would be within the legislative competence of Senedd Cymru if contained in an Act of the Senedd.(3) Regulations under this section may amend, repeal or revoke provision made by or under primary legislation passed—(a) before this Act, or(b) later in the same session of Parliament as this Act.(4) In this section “primary legislation” means—(a) an Act, or(b) an Act or Measure of Senedd Cymru.(5) A statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of Senedd Cymru.” Member's explanatory statement
This confers a regulation-making power on the Welsh Ministers to make consequential provision that is within devolved legislative competence. The Secretary of State has an equivalent power under Clause 51.
Baroness Merron
29(2)
34(1)
(3)(b)
Member's explanatory statement
This amendment would provide for certain provisions currently commenced by regulations to be commenced two months after Royal Assent (and vice versa).