Previous Section Back to Table of Contents Lords Hansard Home Page

We have changed the assessment very considerably as a result of the enormous amount of engagement that we have with disabled people and their organisations. We will go on doing that. However, if we had fundamentally to revisit our approach in the way in which the amendment would require, we would have to go back to the drawing broad, spend more time developing and testing, and have greater consultation. It would push back the start of PIP by at least a year and reduce savings over the reassessment period by £1.4 billion. This is, I think, the priciest amendment yet.

Baroness Hollis of Heigham: You wait.

Lord Freud:This is about doing the right thing for people and focusing money on them; it is not about playing silly games-by which I mean that we are not playing silly games here and we are determined to get this right. We are consulting widely and know that we have the right approach with the model that we are using. I understand the noble Baroness's position, but we do not think that the Bill should specify that the assessment should consider social and environmental factors. That approach would be inappropriate and unworkable, because we need the assessment to be straightforward, objective and consistent. We would lose £1.4 billion of savings. For that combination of reasons, these amendments are not acceptable to the Government. Just for the avoidance of any doubt whatever, I confirm that the Government see Amendments 50ZJ to 50ZQ and Amendments 51A and 52A as directly consequential upon Amendment 50ZH. On that basis, I urge the noble Baroness to withdraw her amendment.

Baroness Grey-Thompson: I thank the Minister for his response. It is nice to know that, even for a short time, I might hold a record in your Lordships' Chamber

17 Jan 2012 : Column 500

for tabling the priciest amendments. I also thank the noble Baronesses who have brought much personal and moving experience to this debate.

I apologise to your Lordships; in introducing the amendment, I did not declare that I am a recipient of DLA, although I am fairly unlikely to be on PIP. I realise that to many the social model turns into a philosophical debate but I felt that it was important to raise it again, as-

Lord Freud: My Lords, I feel that I should interrupt. I think that when the noble Baroness looks at the PIP assessment, she will find that she is on PIP-without doing an assessment myself.

Baroness Grey-Thompson: I thank the Minister and accept that I did not just go through an assessment process.

I feel that it is important to raise this issue again as a gentle reminder that the social model is written by disabled people using their experience. The noble Countess, Lady Mar, made the important point that you cannot fit disabled people into boxes. I tend to think that we are a little more like Venn diagrams. It is obvious to me that if the Minister were truly committed to helping disabled people, the full social model would be used. I recognise that there is a balance between costs and how far we want to go to help disabled people.

I share the Minister's view on autism but I would like to widen the issue and hope that we will take all disabled people's experiences into account. I look forward to seeing the refined process that he mentioned.

There is one point on which I agree with the Minister: the biopsycho model is interesting. However, that is as far as I can go. If we looked at the definition of "interesting", he and I would probably differ considerably. Perhaps we could save that exciting debate for another time. I beg leave to withdraw the amendment.

Amendment 50ZH withdrawn.

Amendments 50ZJ to 50ZJA not moved.

Clause 78 : Mobility component

Amendments 50ZK and 50ZL not moved.

Clause 79 : Ability to carry out daily living activities or mobility activities

Amendments 50ZM to 50ZQ not moved.

Amendment 50ZR

Moved by Baroness Grey-Thompson

50ZR: Clause 79, page 58, line 4, at end insert "including a requirement for the decision maker to collect evidence from the claimant's own health care professionals as a part of the decision making process"

Baroness Grey-Thompson: My Lords, there is a great deal of evidence that decisions are frequently inaccurate when made on the basis of reports from

17 Jan 2012 : Column 501

face-to-face assessments on their own without being informed by evidence from the claimants and healthcare professionals. The purpose of the amendment is to ensure that in all cases, as a part of the decision-making process to decide eligibility to PIP, evidence is collected by the DWP from the claimants' own healthcare and other care professionals. If sufficient evidence is collected to decide entitlement to PIP, it should not be necessary to have a face-to-face assessment.

There have been ongoing problems with the assessments for ESA. Recent figures published by DWP show that nearly one-third-29 per cent-of those in the work-related group were originally found fit for work and had to appeal to be placed in the right group. Even more worrying, a staggering 60 per cent of those who won their appeal had been awarded no points at all in their initial face-to-face assessment, and at least 15 points are needed to be awarded ESA. These are not borderline decisions.

Why are so many decisions going wrong? The assessment reports frequently contain a partial or inaccurate account of what the claimant has said. The reports done by the healthcare professional are meant to record accurately what the claimant says about the effect of their condition. The second half of the report is where, on the basis of what the claimant has said and their observations, the healthcare professional comes to their own decision about the level of the claimant's functionality. However, welfare rights workers have consistently reported over the years that many of the reports contain a partial or inaccurate account of what the claimant has consistently reported is the impact of their impairment on their everyday life. Regular feedback from welfare rights workers, who are dealing with these reports every day, is that although there have been some improvements, such as in the reconsideration process, there are still considerable problems with the accuracy of these reports. It has not been solved and will not be while relying on these assessments on their own.

The healthcare professional doing the assessment sees the claimant for only a relatively short time on one day, which may well be a good day. They are unlikely to be a specialist in the condition and know the likely effects or how they vary, and will not have access to all the medical records and the tests that have been done establishing the level of seriousness of that condition. DWP and Atos now recognise the value of medical evidence from the claimants' own doctors-this is a really valid point-which was acknowledged by Dr Crawford, clinical director of Atos, in evidence to the Work and Pensions Select Committee. Healthcare professionals working for Atos also acknowledged that when a sample group was interviewed in a survey for DWP.

5.45 pm

The following is an extract from that DWP report, and it demonstrates that Atos healthcare professionals themselves believe that medical evidence from the claimants' own healthcare professionals should make the assessment process more accurate:

"GPs' reports were particularly well received because they tended to know the claimant so well. Some HCPs felt that would help to contextualise what they observed on a single appointment

17 Jan 2012 : Column 502

... In addition, it was felt that greater access to medical evidence ahead of the face-to-face WCA might improve the quality of decision-making by providing a more rounded picture of the customer's condition than was really possible in a one-off assessment: 'It can be very difficult sometimes when you're assessing somebody in a short space of time as to whether what they're telling you and whether all your examination findings, whether they all tie together. It can be very difficult, and I think if you had some supporting evidence from a health practitioner, it would make your decision making a lot more robust'".

So Atos healthcare professionals themselves are saying that their decisions about the level of functionality would be more robust if medical evidence were collected, yet the DWP collects evidence for ESA only when it is likely that there will be no assessment.

Unsurprisingly, in view of all this, the deciding factor in tribunals overturning decisions is frequently evidence from the claimant's own doctor or healthcare professional. The Government say that they are committed to getting the right decision first time, yet the following is an extract from guidance sent to GPs:

"DWP may ask you to complete a factual ESA113 report on your patient. You can complete this form from your medical records ... DWP will only ask you to complete an ESA113 if it could result in us confirming your patient's benefit on claim evidence alone, without need for a face to face assessment".

Despite evidence from all sides-welfare rights workers and claimants, the tribunal service and the Atos healthcare professionals themselves-that decision-making in the assessment would be much more likely to be right first time if medical evidence were collected, the only concession is to encourage claimants to send in their own medical evidence. Not getting it right first time will cost money as well as create stress for the claimant. The numbers of ESA appeals are mounting, as are their costs. We do not want PIP appeals to follow a similar trajectory. It clearly makes sense to get this right.

In addition to the costs of appeal, people are too often called in for face-to-face assessments when they should not be. One claimant had recently had a spinal operation. The HCP was shocked that she had been called in for an assessment; he sent her back home immediately and commented that she should not have been asked to leave her house. The stress for the claimant was obviously dreadful but the cost of that face-to-face assessment was also wasted.

The Government estimate that the cost of implementing the changes to DLA, including implementing the new assessment regime, will total £675 million, yet a large number of people receiving DLA could be placed on to the new benefit by a combination of their own evidence in their application together with evidence from their own healthcare professionals, without recourse to a face-to-face consultation or assessment. This is particularly true for those with a lifelong condition or with long-term degenerative conditions, and for those currently receiving the higher rates of benefit.

If there is recognition that medical evidence from claimants' own healthcare professionals is needed to make the assessment process more accurate, the onus must not be placed on the claimant to collect that evidence. Claimants are often charged for medical reports, and while advisers are sometimes able to negotiate with the doctor to drop the charge where a claimant is going to tribunal, doctors who charge will

17 Jan 2012 : Column 503

not make that concession in the case of every claim. The charge is often £30 or £35 and sometimes more. Citizens Advice reported one case where the consultant initially wanted to charge £200 an hour. If someone is living on the basic ESA of £67 a week, or even on the ESA main rate of £94, they cannot afford to pay this amount of money to claim PIP. It must be DWP's responsibility to collect the evidence that is needed for an accurate assessment.

It is vital that the assessment process for PIP includes a requirement for the decision-maker to collect evidence from the claimant's own healthcare professionals as a core part of the decision-making process. Without that requirement, there is a danger that there will be a two-tier system, with the poorest and most vulnerable claimants unable to afford to pay for the evidence themselves and, as a result, at risk of receiving a less reliable decision. I beg to move.

Baroness Thomas of Winchester: My Lords, the importance of this amendment, and of collecting evidence from a person's healthcare professionals, cannot be overstated. Some of us are shocked that not all medical reports are looked at presently under DLA; I think only around half are.

Turning to the assessments, I, too, was very interested in the finding by Citizens Advice that welfare rights workers report that the WCAs often present a distorted picture of what a claimant has said. In case noble Lords have forgotten that report, it said that 37 clients were asked to examine their reports and establish how accurately they reflected what they had said and done in their assessments. Sixteen were found to be very inaccurate. We know from experience that if you hear two people speaking to each other and one of them tells you afterwards what they said all over again, it often does not match your recollection of what they said at all. I note that in relation to PIP we are told:

"Individuals or professionals who support the customer on a regular basis will be able to provide evidence to support their claim".

Who will ask these people to provide evidence? Will it be written evidence? If it is not from a healthcare professional, who else might it be from? The finding of Citizens Advice in connection with the WCA alarms me a great deal about the quality of some of the Atos healthcare professionals who are currently carrying out the assessments. I fervently hope that those doing the PIP assessments will be of a higher calibre altogether.

Baroness Meacher: My Lords, I support Amendment 50ZR, tabled by the noble Baroness, Lady Grey-Thompson, and to which I have added my name. The noble Baroness has made the case comprehensively so I will be brief. She referred to the alarming error rate in benefits decisions. At the same time, I am aware that steps are being taken to improve the accuracy of those decisions.

Here I want to make sure that we do not forget the particular problems of people with learning difficulties and mental health problems, who may not adequately convey their limitations in a face-to-face assessment. These groups have to spend their lives concealing their

17 Jan 2012 : Column 504

symptoms. They are embarrassed by them, and the last thing they want to do is to spell them out. They are acutely aware of the stigma associated with those symptoms. The Government are ensuring that claimants can take someone along to their assessment. There is no doubt that that will help and in some cases lead to appropriate outcomes. However, for many having a companion simply will not be enough. The companion cannot conduct the interview and the pressure on these individuals to conceal their problems is very difficult to overcome in these one-off assessment interviews.

There are also people for whom the very idea of one of these assessments is completely unacceptable. The obvious example is of people with agoraphobia, for whom just going out of the house can present real problems, as can getting on a bus or whatever it is. It is a real problem for this particular group. These people would benefit massively from having a psychiatric assessment at the start of the process, which would eliminate the need for them to go through all the distress of having to do something that they find completely intolerable. It is very fashionable to knock medical assessments but, having worked in mental health for a quarter of a century, in my experience psychiatric assessments are bio-psycho-social assessments. I think that was the term that the Minister used. They do look at the biological, the social, the genetic and every other aspect of someone's functioning.

Also, any self-respecting psychiatrist will not do an assessment in a single sitting. They expect to assess someone over a period of time. They will bring in the views of social workers, nurses and others who have seen someone over a period. There is no way that a one-to-one assessment by someone who may be a nurse but not a psychiatric nurse-even if they call in someone who might be a psychiatric nurse but does not know the patient-can meet the need to make sure that someone is properly assessed, gets the benefits to which they are entitled and does not get benefits to which they are not entitled. It works both ways. This is an important issue.

Other examples include people with a psychosis whose symptoms are not controlled by medication. Many people's symptoms are controlled but some people's, tragically, are not. Those people should be able to have a medical-a bio-psycho-social-assessment and, on the basis of that assessment showing that such a person may not be able to function at all, it should be sufficient. I would have thought that the Government would accept that view.

There are physical diagnoses to which the same sort of arguments would apply. For example, those undergoing treatment for cancer, who again have uncontrolled and uncontrollable symptoms, would fall into this category. I referred to this group in connection with an earlier set of amendments. An early medical certificate for those people would avoid enormous distress and the gross injustice of requiring them to do things that none of us would wish them to do if we saw them face-to-face.

I understand the issue of medical fees, which has been referred to. GPs will not tolerate an inundation of requests for medical assessments without a fee. One

17 Jan 2012 : Column 505

of my daughters is a GP. I discussed it with her and she was not impressed by the idea. I am also aware that the Government have introduced an important new element in that the claimant can seek a report from their favoured clinician, who could be anybody-it might not be a doctor. This is helpful but it raises the issue, which has already been raised, of a two-tier system. Some people may be able to afford such a thing; others may not. It is a great step forward and I wish to acknowledge that, but it does not detract from the importance of this amendment. I look forward to hearing the Minister's response.

Baroness Browning: My Lords, I am sorry to come in on Asperger's syndrome again. I know that the Government involved people on the autistic spectrum in some trials that they carried out over the summer. I just wanted to encourage my noble friend to take the feedback from some of the people who took part in that, in a mock PIP assessment. Because the spectrum, particularly at the more able end, includes people who may be very articulate, on a good day it may be quite difficult to see that this is a communication disorder. On the other hand, you could have an assessment in which, even with the benefit of someone in support in the same room, the person on the autistic spectrum may have some difficulty in answering any question themselves as they struggle to put the words together or to make eye contact with the assessor.

On this group of amendments, I would encourage my noble friend to be aware of the variation in how people can present. However confident they may appear, it will inevitably be a very stressful situation for them to be in a room, answering questions from someone they are unfamiliar with. However they present, there will be stress behind it. I just reiterate something that I asked my noble friend a little earlier. I ask him to make absolutely sure that the people doing these assessments have not just mugged up on what autism or any other disability is from some book, but really understand and have a working knowledge of the disciplines in which they are assessing people. I will leave it at that.

6 pm

Lord Addington: The amendment on which mine is the lead name also refers to the autistic spectrum. When the noble Baroness is in the Chamber with us, I always feel as though you are definitely on the end of the passing movement, as opposed to being the play-maker. The noble Baroness knows exactly what she is talking about. At my conference, someone who was talking in a meeting about autism said, "You must understand that autism is a three-dimensional spectrum". Does that phrase not start to explain why the diversity of people and their reactions are incredibly difficult to understand and always will be? I wish I had thought of that expression myself. The great diversity of needs and different types of behaviour mean that you must have some specific training.

When I was approached to put down this amendment, I had a conversation with the NAS. I want to use it as an example of the fact that you always need a certain degree of knowledge to make this type of assessment. I remember that, in years gone by, when the noble

17 Jan 2012 : Column 506

Baroness, Lady Hollis, spoke for the then Government, our exchanges on the subject of the initial interview process went on and on and developed almost into a ritual dance. "Can we have specific knowledge?", we would ask the Government. "No, but we will give them lots of training", they would reply. We have got better, because we always do, but it remains the case that unless you have someone who actually understands the condition which they are assessing and reporting on, they will make mistakes.

The noble Baroness, Lady Grey-Thompson, has already pointed out that mistakes cost "blood and gold" for everybody concerned. You burn up time; you burn up money; you cause suffering. Getting more expertise into assessment, either by taking a better history, or by making sure you have the right person there at the right time, will make life a lot easier and will probably save money in the long term or, indeed, in the medium term. The Minister has been moving forward, although he is pushing water uphill with certain concerns here. I stress that I am looking for clarification on where he is moving to and his thoughts on where this expertise is going to be dragged in. If you have a problem, empower people to say that there is a problem and that someone who understands it needs to be brought in. If you can do that, you will take huge steps forward. You will not get it right all the time but you will get it right more often.

If the Minister can give us some encouragement and some firm guidelines about what is going to happen to encourage people to get it right-not just to get the numbers through-I will be a very much happier man at the end of this.

Lord Touhig: My Lords, I do not intend to detain the House long, because Amendments 50B, 50C and 50D were debated at some length in Committee. I attempted to withdraw Amendment 50A yesterday, but the gremlins crept in and the only thing that has been withdrawn is my name-the amendment still appears on the Marshalled List.

With Amendment 50B, the noble Lord, Lord Addington, has once again made a very powerful case in support of the need for properly trained assessors. In particular, all assessors should have an understanding of and training in autism if they are to recognise and understand the complex cases they will have to deal with. It has been said a number of times-I make no apology for repeating it here, because it is important-that when you have seen one person with autism, you have seen one person with autism. This is why the training is so important. A knowledge of autism and possessing the right skills to assess the needs of an autistic person are essential in making any decision about the appropriate level of financial support that that person might need. I believe that the Minister accepts this point of view.

Following the Committee stage, a number of other noble Lords and I had a very useful meeting with the Minister and his colleague Maria Miller MP, and we are grateful for that opportunity to exchange views in a less formal situation. One point from that discussion, which was touched on today by the noble Baroness, Lady Browning, did concern me-the point about the qualifications of the person carrying out the initial assessment. One of the Minister's officials told us at

17 Jan 2012 : Column 507

that meeting that the initial assessments would be carried out by an occupational therapist. Will this be the case? That seems a very narrow skill base from which to draw the expertise for any kind of wider assessment, and it leaves me, for one, with the impression that the assessment is aimed primarily at getting people into work and not at trying to understand and support them if they are not able to work. Such a situation would fly in the face of the well-argued case that assessors should have specific training in all mental, intellectual and cognitive disorders, as advocated by the amendment. I hope the Minister can allay my fears.

I turn to Amendments 50C and 50D, in my name and that of my noble friends Lady Healy of Primrose Hill and Lord Wigley. The amendments concern face-to-face assessment and would, if accepted, exempt certain categories of people from the process of continuous reassessment where sufficient medical and other expert evidence existed to demonstrate that their condition would not improve. I return again to my concerns about people with autism. Autism can be summed up in this way: autism is for life. Any reassessment must accept this fact before progress can be made. The Minister made it clear, at Second Reading and in Committee, that the Government did not believe that a face-to-face assessment would be the right course to follow in all cases.

At our meeting, both the Minister and his colleague, Maria Miller MP, gave a strong impression that the Government would support a tiered approach to assessment in such cases, as advocated by the National Autistic Society and others. In practice, this tiered approach would allow for written assessment from professionals to be considered and a decision to be made, on that basis, about whether a face-to-face assessment was appropriate or necessary. I will not test the patience of the House any longer. I look forward to the Minister's response and hope he will have something positive to say about a tiered assessment.

Lord Kirkwood of Kirkhope: This is an important debate because existing relevant medical evidence is absolutely essential to getting this test-and the whole process-delivered as accurately and as sweetly as it possibly can be. This is true in two separate directions. First, getting access to and active consideration of existing relevant medical evidence will make the examination-if an examination is needed-much more satisfactory for all concerned. As has already been said, it will reduce appeals-and it will minimise costs for that reason if for no other.

It has a second important function which I hope the Minister will be able to spend some time on. If the Minister could help us understand better how desktop assessments can obviate face-to-face assessments, he could diminish the fear factor that clearly exists, rightly or wrongly, about what will face people who might be invited to these face-to-face tests in future, and that would be enormously helpful. I am aware, having followed this for some time, that the DLA provisions which we put in the primary legislation in 1992 were, in some respects, too prescriptive. I understand perfectly that assurances can be made and put into regulations and put into medical contracts as well.

17 Jan 2012 : Column 508

I am in the market for voting for this amendment if we do not get the kind of response that I hope for. However, there are ways of delivering the assurances that are being sought by our correspondents and the disability community. It would be helpful if the Minister could say a word about the contract. I understand that the contract is out to tender and it is too early to say who is interested, but people are drawing conclusions from the Atos Healthcare experience. I do not think that that experience would necessarily be repeated in the future if the terms of the contract are drawn sufficiently clearly. In that contract, if not in regulations or primary legislation, we should be saying clearly that on cause shown, if there is heavyweight medical evidence that can be addressed at a desktop level, those are circumstances where it should almost be a default that people will not be subjected-if that is the right verb-to these assessments.

I share a concern about the quality and experience of the assessors. I have a capacity issue as well as a quality issue about that. It does not matter if you get the best contract in the world and the most enthusiastic prime contractors who come in and promise, hand on heart, to do the best they can. The professionals with the right qualifications and experience to do this work may not be out there. If that is the case then we need to be very careful. There is not enough emphasis in the United Kingdom on this kind of medicine, and we should be promoting with our medical colleagues a far higher degree of interest in and development of the specialist skills that medical professionals need to do these jobs in order to make this process a success.

I have here a case history that caught my imagination. A 25 year-old young man is undergoing his first major reassessment of his problems as an adult. His assessments will involve MR scans, examination by neurologists, neurogeneticists, neurophysiotherapists and a specialised occupational therapist. He has scattered neuromotor difficulties. Although I trained as a pharmacist a long time ago, I could not even find on the internet what neuromotor difficulties actually amount to, but it is clearly a serious condition that is being addressed by experts at a tertiary, if not international, level by a centre of excellence in a region in the United Kingdom. The young man has written to say that he is now fearful that he will have to address the circumstances of these tests. It would be completely daft and stone mad that we cannot say something now that is clear. There may be technicalities with the legislation, and perhaps I could be persuaded that such provisions should not be in primary legislation, but we absolutely need some clear, copper-bottomed assurances from the Minister that a person in those circumstances would not face such difficulties.

I hope that the Minister will understand that this is an important amendment and that he will take as much time as he can to tell us as much as he knows about how these processes will work and where in the legislative process-whether by regulation or primary legislation-we can be assured that we will get some protection for the kind of young person to whom I alluded.

The Countess of Mar: My Lords, I have difficulty with Amendment 50ZR. I fully endorse the fact that medical evidence is needed, but some people with ME

17 Jan 2012 : Column 509

have not seen a doctor in years, simply because there is no treatment for them. If the department is expected to depend a lot on medical evidence for corroboration of the illness, I do not know how people with ME are going to cope. That really disturbs me and the issue needs to be examined.

I fully support the amendment of the noble Lord, Lord Addington, on training. People with ME have cognitive difficulties as well as all their other problems, and these are not very well understood. I give him my heartfelt support, and I hope that the noble Lord will take on board the fact that some people cannot get current medical evidence to corroborate their illness.

Lord Wigley: My Lords, I shall speak briefly because time is pressing. We went into this issue in some detail in Committee and I warmly support the amendment of the noble Lord, Lord Addington, which was better than the one we originally considered. The noble Lord, Lord Touhig, referred to the tiered approach, and I very much hope that the Minister can confirm that the tiered approach that has been pressed upon him by those involved with autism will be central to this matter.

I also hope that he can take the main thrust of the amendment of the noble Lord, Lord Addington, whereby expertise needs to be brought on board. Earlier today, the Minister emphasised the need to make sure that those with greater disabilities get the support they need and that those with lesser disabilities get less. That approach is dependent upon knowing exactly what the conditions are. When we consider people in the spectrum associated with autism and Asperger's we need to know the individual challenges they have. If the wording of this amendment is inappropriate, so be it. However, there needs to be an approach that brings that expertise on board, otherwise we are failing to do what the Minister says he wants to do.

6.15 pm

Baroness Hollins: My Lords, I shall speak briefly in support of this amendment and Amendment 50B. I spoke at length in Committee in support of the requirement for the decision-maker to collect evidence from the claimant's own health professional, and I do not intend to repeat myself. However, I should like to make a specific point about the requirement in Amendment 50B that,

This is because it is necessary to state that specialist skills are required in assessing someone with autism, learning disability or mental illness, and I know that it is intended that such expertise should be provided. However, most medical doctors do not have these skills. Indeed, Professor Steve Field, when writing about the NHS Future Forum in connection with the Health and Social Care Bill, pointed out in his most recent papers that it is of some sadness and regret that most doctors do not have training in these specialties, particularly those relating to learning disability and autism.

The other point I should make is that in psychiatry these are also specialist skills and not all psychiatrists have them. All will be good at assessing mental illness,

17 Jan 2012 : Column 510

but not all will have expertise in assessing people with learning disability or autism. That requires additional or different specialist training. I wish just to draw that to the Minister's attention.

Baroness Hayter of Kentish Town: My Lords, these amendments would improve the assessment process for the new PIP and allay the fears of many people with disabilities that the poor experience of the ESA assessments, where around 40 per cent have been successfully appealed, is not replicated under the new benefits system.

Amendment 50B relates to the training of those undertaking face-to-face assessments to ensure that they have knowledge of mental, intellectual and cognitive disorders, clear guidance about when to access more specialist advice, and a guarantee that such advice will be available. In Committee, we received some encouragement from the Minister who stated:

"Assessors will be required to have a broad training in disability analysis as well as training on specific impairments ... we intend to ensure that they have sufficient training in mental, intellectual and cognitive impairments ... and will stipulate this in our contracts".-[Official Report, 16/11/11; col. GC 263.]

Perhaps the Minister could let us know what budget has been set aside for such training.

Amendments 50C and 50D would exempt certain people from a face-to-face assessment where sufficient evidence is available via other means. This would actually save money for the Government. I hope that the Treasury is listening. Implementing face-to-face assessments was to have cost about £675 million. The amendments would reduce the costs by removing from the process claimants for whom a face-to-face assessment is clearly unnecessary. This would help those with lifelong or degenerative conditions, for whom a face-to-face assessment could be stressful. For example, about half those with MS or Parkinson's are receiving the highest level of DLA. Putting them through an expensive and stressful face-to-face test seems unnecessary.

Again, we received some assurance in Committee. The Minister stated that,

I hope that the flexibility would be there for that. However, he also argued that other than for those with a terminal illness,

Yet, if the Minister is prepared to accept that those with a terminal illness should not be subject to unnecessary assessment, surely the same argument could be applied to those with degenerative conditions where there is no hope of improvement. We look forward to any assurances the Minister can give that unnecessary face-to-face assessments will not be necessary.

If he is not persuaded by me, perhaps he will be persuaded by someone of his own political background-the Mayor of London, Boris Johnson. I have never quoted from one of his speeches before. He writes:

"Evidence from the individuals GP and/or a consultant will provide an accurate assessment of need. It would be difficult for a healthcare professional in a one-off meeting to elicit a comprehensive

17 Jan 2012 : Column 511

response about the daily reality for each claimant. Face-to-face meetings ... could prove ... inappropriate for an individual who may have difficulty with social contacts, such as those with autism, or for those with an intellectual or mental health disability".

This brings me to the first amendment in this group which would ensure that the assessment process always takes account of evidence from the claimant's old healthcare professional. It builds on the experience of the work capability assessment for ESA and is to help the Government to avoid history repeating itself. Unfortunately, in this case, it would be as tragedy not farce. The problem with the current proposals is that they put the onus on the claimant to collect the medical evidence and also to have the knowledge that would be helpful to provide this. As we have seen with ESA assessments, it is exactly this that often leads to unnecessary duplication as a case is assessed and then reassessed in the light of the evidence from the GP or professional. The initial failure to consider such evidence has contributed to the very high and expensive success rates.

In Committee the Minister argued that while medical evidence could be of use, he felt that it was not necessary to gather evidence in every case. He said:

"In some cases what the claimant has already told us ... will be sufficient. In other cases, information ... might be likely to add only limited value".-[Official Report, 16/11/11; col. GC 261.]

Surely it would be better to err on the side of caution, given the widespread inaccuracy of the ESA assessments and the need to ensure that the personal independence payments do not follow the same route. Medical evidence is bound to assist the decision-maker in far more cases than those in which it proves unnecessary.

This is a modest amendment. It seeks to ensure that the introduction of personal independence payments proceeds smoothly and more importantly to ensure that the right benefit is paid to the right people. I hope the Minister will accept this. Certainly it would have our full support.

Lord Freud: My Lords, I could summarise my speech in about three sentences. I am in agreement with virtually everything said in the Chamber. I hope that after my three sentences I will be able to provide assurances. My only point of real disagreement is that I do not want it to be mandatory-in primary legislation. This is in regard to the point made by my noble friend Lord Kirkwood that it reduces flexibility and we are much better off setting it up in regulations and guides and in the contracts. That is our proposed approach but fundamentally we are absorbing all the valuable points made on this group. I will try now with some speed to go through those assurances. I ask noble Lords to stop me with the precise assurance they want if I am not making the assurance well enough.

Amendment 50A was semi-withdrawn by the noble Lord, Lord Touhig, but I will try to deal with it because it is a building block. People being assessed can bring in someone with them-a relation, a friend or a professional-to help them. That is really important in the group we spent a lot of time on this afternoon relating to autism and Asperger's. When people are over-bright their relation can make the point about the reality and the over-anxiety of the person being assessed. That would be an active role in the process.

17 Jan 2012 : Column 512

I turn now to Amendment 50B. Clearly, we need to make sure that assessors have all the appropriate training to interpret the evidence that they are provided with. I have to make the point that it is not a medical assessment PIP. It does not ask the assessor to diagnose a condition or to recommend treatment options. It is different. It looks at how the conditions or impairments affect individuals' everyday lives. That is a different skill set from that involved in treatment. There is not quite the same level of need for specialist skills but it is our intention that assessors will have a broad training in disability analysis as well as training in mental, intellectual and cognitive impairments. That level of training will be stipulated in our contracts with any providers and we will be responsible for signing off the training syllabuses. There will be occasions when assessors need more specialist support in the course of making these assessments. We will ensure that they have access to and support from individuals who have the in-depth knowledge that the noble Baroness, Lady Meacher, mentioned with regard to mental health conditions.

Baroness Browning: I am sorry to interrupt again. Can my noble friend give us any hope that when an assessment is called there will be any publication of the qualifications and background of the assessors so that the people being assessed at least have some view of what their expertise actually is?

Lord Freud: It is a nice idea. I do not think I will make an utter commitment to it here and now but it is a cute idea and maybe we should put it in the contract. I will take it away and think about it.

We do not think that we should prescribe this in the Bill or even in regulations because it is important that assessors have an understanding of the limits of their knowledge so they know when to bring in the expert advice. I think the noble Baroness, Lady Healy, got that absolutely right.

I will now go on to Amendments 50C, 50D and 50ZR. We know that individuals can have a wealth of material, knowledge and evidence that will help in the assessment process and we need to get the right material and evidence from them at the right time and we need to encourage that evidence to come forward. We will not create a two-tier system where the poorest and the most vulnerable have less chance of receiving benefit because they cannot afford to pay for the evidence. We are going to make sure that does not happen.

I want to pick up the very valuable point raised by the noble Countess, Lady Mar. If we have a mandatory process to involve the individual's health professionals it may very well be an entirely nugatory and expensive process in the many situations where the GP is not up to date with what is happening. That is the inflexibility of having something in the Bill which adds nothing except cost. If someone who has a learning disability has not visited a health professional for many years, why go through the expense of getting evidence? It would be unnecessary; it would slow the process down; and there may be someone else whom we would not have thought of including in the Bill who is much better placed to provide information and evidence for

17 Jan 2012 : Column 513

the assessor. We need to pull out the cumbersome implications of the mandatory process-the point made so precisely by my noble friend Lord Kirkwood.

We have made it clear that face-to-face consultation should form part of the claim process for most-but absolutely not for all-claimants. Ultimately, consultation will play a key role in creating a fairer and more objective assessment. It needs to be done sensitively and proportionately, but where sufficient evidence is available, we are in absolute agreement that there does not have to be face-to-face consultation. There will be many examples where that is unnecessary.

We are talking about something very close to, if not exactly, the tiered process recommended by the National Autistic Society. That is what we are planning to adopt. We have flexibility in the Bill to do that.

6.30 pm

The Countess of Mar: My Lords, I should have said this when I was making my initial speech. About 60,000 people with ME are either bedbound or housebound. To go to a face-to-face interview would cause enormous stress and probably exacerbate their symptoms. Will that be taken into account? They cannot provide medical evidence because there is no treatment; yet they cannot come out of their homes. How will the Minister deal with that?

Lord Freud: My Lords, one thing I was trying to get over about trying not to have a two-tier process so that the rich can get their evidence and the poor cannot, is that we turn the burden on to the assessors, so that when someone cannot come out, that requires a house visit if we cannot use paper evidence. There will be examples where paper evidence will do the job; where it cannot, the onus is on the assessor to do the checking, rather than the other way round. That is how we will provide that protection.

I hope I have gone through all the specific issues and given assurances on all those important matters. We are planning to meet the concerns expressed around the House. All I am asking for is that we have the flexibility to go on running the system as things change, as they inevitably do, and that we do not lock it up in primary legislation so that if we need to make changes it takes years. That is really what we are talking about.

Baroness Meacher: I apologise for interrupting the Minister. I just wanted to make a point about ME patients, who have the most awful time. I have direct personal experience of that-not myself but through people close to me. Does the Minister accept that Amendment 50ZR would enable someone bedridden with ME who has not seen a doctor for years to call their GP and have a proper assessment? They are bedridden; they cannot go to assessments. That would avoid getting into a benefit assessment straight off. That is the whole point of the amendment. There has been support around the House because of the many situations where tremendous distress can be avoided by an appropriate person-perhaps a nurse, perhaps a doctor-doing a full and careful assessment, rather than getting into the benefits system.

17 Jan 2012 : Column 514

Lord Freud: My Lords, I hope that I have made it absolutely clear that if we write into the Bill that it must be the GP, who may not be the right person, we are stuck. If you give us the flexibility, we are not stuck and in those circumstances we will go to the person's home to do the assessment, or take someone else's piece of paper on the tiered approach.

What we are planning will be better for people suffering from ME and other illnesses because we will be able to respond. I think that the market will change. My noble friend Lord Kirkwood said that there is not an adequate market in this area. Occupational health and support for people of working age is a Cinderella service. We will be building that. As things change, we can move the assessment. If you tie it up, we will be locked in to 1948 as the years go by. The only difference between us on this, I think, is how mandatory and prescriptive we want to be, and it would be most unusual to put it in the Bill.

Let me cover the technicalities. The Government consider that Amendment 50D is directly consequential on Amendment 50C; the others are separate, so I ask noble Lords not to press them to a vote and the noble Baroness to withdraw the amendment.

Baroness Grey-Thompson: My Lords, I thank the Minister and everyone else who has taken part in the debate this afternoon. On a point of clarification to the noble Countess, Lady Mar, although the wording of the amendment was "relevant healthcare professionals", in her speech she mentioned doctors; it is much wider than that.

The amendment is a fundamental cornerstone of what is necessary in the move to PIP. I recognise that the Minister has moved a long way. I am still not comfortable with some part of his statement on the broad training for professionals. You do not know what you do not know. It is very difficult to instil that knowledge in people. I would like to know an awful lot more about the detail of how that training and education will take place.

There has been broad support around the House for my amendment, and I am grateful to noble Lords for that, but considering that the Minister has moved further than perhaps I expected, there is an awful lot to think about in what he has said. I beg leave to withdraw the amendment.

Amendment 50ZR withdrawn.

Amendment 50AB

Moved by Baroness Thomas of Winchester

50AB: Clause 79, page 58, line 6, at end insert-

"(d) shall not take into account aids, appliances or adaptations used by the person."

Baroness Thomas of Winchester: My Lords, we had quite a debate about the use of aids, appliances and adaptations in Grand Committee, at the end of which I found myself more confused than ever about how the PIP assessment was going to take them into

17 Jan 2012 : Column 515

account. I have already declared one interest; I feel that I should declare another in having most of the aids and appliances known to mankind in my house.

My purpose in tabling the amendment is not so that we can have another debate about the detailed use of all kinds of aids-

The Deputy Chairman of Committees (Lord Brougham and Vaux): Order. I ask Members of the House to leave quietly, because otherwise the Chairman cannot hear the speech.

Baroness Thomas of Winchester: My Lords, I am not going to have another debate here and now about the detail of all kinds of aids and appliances, but I want to signal my concern about the question and to ask the Minister whether he would consider hosting a meeting for interested Peers on this topic, together with the relevant officials from his department.

I quite appreciate that those who have been working on the second draft criteria for PIP have tried to do their best to incorporate the views of many organisations and people, including disabled people, but we must not forget that the Government want to cut the bill for DLA by bringing in PIP, which may mean that some of those who currently receive DLA will not receive PIP. If so, it is very important to make sure that some people do not fall through the net because their particular needs have not been met.

We have to keep in our minds at all times the purpose of PIP, which is to help a person to carry out daily living activities and mobility activities if that person is limited or severely limited by their physical or mental condition. The Minister has repeatedly made it clear-we heard it just now-that the Government are looking not just at the medical model of disability but at the biopsychosocial model, which tries to include part of the social model. The responses of disabled people and organisations to the first draft criteria were instructive. Many were keen to point out that taking the use of aids and appliances into account does not necessarily remove a barrier to participation. Those of us who have mobility problems can all testify that there are still a lot of buildings such as restaurants, shops and even hotels which are not accessible, as well as dropped kerbs which are positively dangerous and public transport which is not suitable. The mobility descriptors are, in my view, worryingly minimal, and here again the responses to the "Moving Around" section were useful. While moving outside, for example, no account is to be taken of the gradient or texture of the ground, or the weather, and there was no box for whether the physical support of another person was needed for those with poor balance.

I turn now to a very basic issue-managing toilet needs or incontinence. One response was that toilet needs outside the home should be considered. Most disabled people can manage in their own homes, many with aids, but going out is a different matter, as we heard from the noble Countess, Lady Mar, who is not in her place at the moment. This has not been included but it may make all the difference to whether someone can participate in society. If that is the

17 Jan 2012 : Column 516

criterion for receiving PIP, why is there no suitable box for it? Or perhaps there is and I have not been able to find it.

Before ending, I should like to raise one matter that has concerned me for some time but about which I may not have to worry-that is, the difference between using an aid or appliance for work capability and using the same aid or appliance for ordinary living purposes. For example, we know that a person in a manual wheelchair is no longer classified as having limited capability for work simply because of their use of a manual wheelchair, so they will not automatically get ESA rather than JSA. Although I am not happy with that state of affairs, that is the situation at the moment. However, if that person applies for PIP under the new regime, knowing that PIP will be an in-work as well as an out-of-work benefit, and because they might need extra help with daily living activities, then I can see no good reason why they should not receive it. Therefore, I hope that whether a person has "passed" or "failed" the work capability assessment will not be taken into account when they are being assessed for PIP. I think that this is why the noble Baroness, Lady Grey-Thompson, thought that she might be ineligible for PIP.

I understand that the aim for PIP is to take account of aids and appliances which are actively used by individuals and those which could reasonably be expected to be used to reduce barriers to participation. If the Government expect a person to buy and maintain aids, the least they can do is to help to pay for them.

The case studies that the Minister promised us I found extremely valuable, but they also beg a few questions. For example, the phrase "Needs to use an aid or appliance to bathe" means using a shower seat to take a shower, but what about those who can use a shower only if there are suitably placed grab-handles and the shower has the lowest step possible, or if the person has a wet room but has to use, say, a walker while using the shower?

In view of the very late appearance of the PIP thresholds and the case studies, I hope that the Minister will agree to an early meeting between concerned Peers and the relevant officials at the DWP to talk in more detail about how aids, appliances and adaptations are going to be used in the assessment. I beg to move.

6.45 pm

Lord Low of Dalston: My Lords, I have added my name to the amendment and I have here an eloquent speech in its support. However, I do not propose to deliver it because I am aware of even larger fish to fry a little way down the track, and I think it is important that we should reach those as soon as possible. However, I want to make it clear that that in no way reflects any lack of support for the amendment of the noble Baroness, Lady Thomas. I support and agree with every word that she has said, and I entirely agree with the approach that she has suggested of getting together with the Minister and his officials to see whether we can find a way through before Third Reading.

Baroness Gardner of Parkes: My Lords, I support the amendment. I have raised this issue with the Minister in private in the past. Many people on the existing

17 Jan 2012 : Column 517

benefit have used the money to increase their possibility of living normally by putting it towards aids or adaptations, and it would be very wrong if they were disadvantaged because of that.

Lord Freud: My Lords, a fundamental principle of PIP is that support should be targeted at those who are most affected. I reassure my noble friend Lady Thomas that we will not be penalising people who use aids and appliances.

We know that many disabled people have a greater level of participation because of the help provided by aids, appliances and adaptations. If we were to disregard entirely the use of such aids, we would penalise individuals whose health condition or impairment could not be helped through their use. In those circumstances, the needs of those individuals would seem less of a priority, even though their levels of participation might be lower. Therefore, there is a balance to be struck here. I would be the first to admit that the use of aids, appliances and adaptations do not of themselves eliminate needs, barriers or costs. We accept and understand that, and that is why we are applying points in the assessment when such aids are in use. The number of points will vary depending on the aids in question and the levels of need.

With regard to the daily living component, the entitlement thresholds have been set at such a level that an individual who requires aids to carry out a number of activities may receive the component at the standard rate. I am pleased to reconfirm to the noble Baroness, Lady Grey-Thompson, that with the mobility component, individuals who use aids and appliances to move short distances can receive the standard rate, while someone who needs to use a wheelchair to do so-whether it is a manual or an electric one-will receive the enhanced rate. In that sense, it is a different assessment and it does things differently from the WCA for ESA. The valuable point has been made tonight that people do not understand that, so clearly we need to put across information about it.

As I informed noble Lords in Committee, the approach that we wish to adopt for PIP is the same in this area as that currently used within DLA. We take into account aids that are currently used by individuals as well as those which might reasonably be expected to be used. Let me be precise-I mean those that are easily and cheaply available. We will not, for example, say that an individual's needs would not be present if they simply bought themselves a wheelchair, a stairlift, or a walk-in shower. That would not be reasonable, and we will have guidance available to make sure that claimants are treated consistently.

I will, however, be delighted to host a meeting with my noble friend, and any group she wishes to bring. Clearly, there is a big consultation exercise going on in precisely this area. I know this is an area in which she has great interest, and I will be very pleased to host that meeting. I urge her to withdraw her amendment.

Baroness Thomas of Winchester: My Lords, I am very grateful to the Minister for agreeing to such a meeting, and for clarifying that there is a great difference between the assessment for the work capability assessment and PIP. With that, I beg leave to withdraw the amendment.

17 Jan 2012 : Column 518

Amendment 50AB withdrawn.

Amendments 50ABA to 50D not moved.

Clause 80 : Required period condition: further provision

Amendment 50E

Moved by Baroness Grey-Thompson

50E: Clause 80, page 58, line 26, at end insert-

"( ) The Secretary of State must lay before Parliament an independent review of the plans for implementation of the assessments under section 79 before the provisions are brought into effect, and such plans must in particular provide for-

(a) a trial period before any assessment process is implemented fully for new applicants and those transferring from DLA;

(b) disabled persons organisations to be involved in formulating the assessment process."

Baroness Grey-Thompson: My Lords, the purpose of the amendment is to ensure that there is an independent report on the plans for both the PIP assessment and its implementation before implementation starts, and a trial period before it is implemented in full.

We have spent much time today debating why disability benefits matter so much, but perhaps I may briefly point out that nearly one-quarter of individuals in families with at least one disabled member live in relative income poverty, and over 50 per cent of working-age disabled adults are not in paid employment. One-third of working age disabled people are estimated to live in poverty.

There is huge concern about the effect of DLA reform. The thresholds for the new benefit were announced only yesterday. The modelling suggests that the second draft will produce a 2015-16 caseload of 1.7 million people receiving PIP. Without introducing the new benefit, we would expect the number of 16 to 64 year-olds claiming DLA in 2015-16 to be 2.2 million. That is a reduction of half a million people who will not receive any help with the cost of disability, who would have been receiving DLA.

Just last week an analysis of organisations' responses to the original government consultation on DLA reform highlighted the amount of concern about the proposed changes. The extent of this concern was not clear from the DWP response to the consultation. Scope, in its report, The Future of PIP: A Social Model Based Approach, says:

"We remain very concerned that this decision is based purely on budgetary targets, rather than on robust evidence as to how the benefit is used and by whom".

I just do not believe that there has been time to analyse who will lose out. The Disability Benefits Consortium stated:

"We are very concerned that there has not been due consideration of the impact this reform will have both on those who lose all their entitlement and those who are left with a reduced award following reassessment".

The thresholds were published only yesterday, but without those thresholds it is impossible to look in detail at who will lose out. Without them, it is almost

17 Jan 2012 : Column 519

impossible to have an informed debate about this part of the Bill. The few examples in the consultation document, while helpful, cannot possible address this properly.

Why do we need an independent review and trial period? Some early analysis has suggested that one of the groups who might lose out are those with mental health conditions, who currently receive the lower rate of mobility. Many people with a mental health condition find it impossible to use public transport. They frequently use their DLA to pay for taxis. If they are unable to get out, it is likely to make them more socially excluded, and push them further from the job market. This is just one possible unintended consequence.

There needs to be careful scrutiny of who will be affected by these changes. Many more groups will emerge in the months and years ahead, together with some unintended consequences. I have a real concern that it could lead to a deterioration of people's health. Will it impact on the social care budgets? There are so many more things to consider in this. For such a major change as this, it is important to be much clearer on what the changes will be.

There is concern not just about the test or the thresholds but about the way that the benefit is assessed, and this is a much greater change than the move from IB to ESA. An independent report on the plans for both the PIP assessment and its implementation, before the implementation starts, would provide an appropriate level of scrutiny, given the huge impact this reform will have on disabled people.

The trial of the IB reassessment process in Burnley and Aberdeen threw up a number of important lessons which the DWP learnt from and implemented in the full rollout. It is so important that there is a trial of PIP in a similar way before the full rollout to either new or existing claimants. I beg to move.

Lord Low of Dalston: My Lords, I declare my interest in these debates as a recipient of DLA. This amendment is every bit as important as those we passed last week. Noble Lords will know from their postbag that people are looking to us to ameliorate the worst excesses of this Welfare Reform Bill. Although the Bill has some very sensible and progressive things at its core, in the shape of universal credit, nevertheless it goes too far for most people's consciences in the way that it takes vital support away from some of the most needy in our society, in ways that have been movingly illustrated-far more eloquently than I could-in earlier debates.

Let me be clear about what the amendment does and does not do. It does not entail the Bill being paused, as happened with the Health and Social Care Bill, and as it has been portrayed outside. It merely states that the new assessment regime should not be commenced until Parliament can be given the benefit of an independent review-a common enough procedure regarding the introduction of particular statutory provisions.

It may be said that it is pointless to pass such an amendment, and that the Commons will only reverse it. However, there are two reasons for passing it,

17 Jan 2012 : Column 520

notwithstanding that. First, it sends a strong signal to the Government that they cannot be too cavalier in the way that they drive the juggernaut of reform over those who are weakest and most defenceless in our community. Secondly, as we have seen in the last week, it ensures that they cannot do this below the radar of public attention.

I support the amendment from my noble friend Lady Grey-Thompson because I think that this is all being rushed through far too quickly to meet Treasury targets, before it is ready. The latest consultation draft of the assessment criteria reached us only yesterday, as we have heard, which has left little time to carry out the necessary analysis, but enough to see that it is still very much work in progress. For instance, just one day before we were due to discuss the Government's plans for the future of DLA, the number of disabled people likely to lose help through the new assessment process was revised upwards to 500,000, as we have heard.

When the proposals were first announced in the June 2010 Budget we were told that a 20 per cent reduction in case load was likely. At that time this represented 360,000 disabled people, so the figure for the total of losers from the Government's proposal has risen by 140,000, to which we should probably add the 80,000 care home residents who will no longer lose their mobility payments.

The Treasury's target saving of 20 per cent was always arbitrary, being cost-driven rather than evidence-based. The Government themselves admit that the level of fraud is very low with DLA, at only 0.5 per cent. There are even suggestions that the increased figure for losers which we heard of yesterday will not achieve the Treasury's target, either. At all events, the DWP is giving the impression of making it up as it goes along, all in an effort to satisfy its Treasury masters.

Disabled people do not have confidence in this process, which all serves to underline the fundamental unfairness of taking needed support away from the most vulnerable simply to meet Treasury targets. Confidence is not enhanced by the experience disabled people have had of the work capability assessment for out-of-work benefits. This was trialled on new claimants and regionally piloted for 18 months before national implementation, and has been the subject of two independent reviews, yet still gives rise to considerable difficulty, with 40 per cent of appeals upheld. This is a massive waste of money. We need to be sure that we have got the system right for the personal independence payment before it is introduced. So far, the DWP has tested the proposed assessment for PIP on fewer than 1,000 people. A sample of fewer than 1,000 is simply not enough to get a proper handle on the complexity of the issues that will arise when the full DLA caseload of 2.2 million people is put through the reassessment process; it is not like saying whether you vote Labour or Conservative.

7 pm

DWP research suggests that more than half of those receiving DLA have four or more health conditions or impairments. The process of reassessing everyone is set to cost £675 million, to say nothing of the cost to the NHS of providing 2 million medical reports. Is it really worth such a massive outlay in public expenditure

17 Jan 2012 : Column 521

-all of half the anticipated saving-when, with a much more modest overhaul of the system, the money could be used to maintain support for vulnerable disabled people, which the Prime Minister made a great play of pledging to do, rather than taking it away from them?

Particular issues have arisen with the work capability assessment for people with fluctuating conditions such as MS and ME, and also for people with mental health problems. I do not believe that the Government can yet demonstrate that these issues have been resolved for the new PIP assessment, which adopts a similar points-based approach. We all want an efficient, effective welfare system that delivers support only to those who need it, but I do not believe that the current assessment proposals will achieve this, and they could cost as much in long-term NHS social care and tribunal costs as they save, to say nothing of the distress and hardship that certainly will be caused to individuals. For these reasons, I urge the Government to pause the full implementation of this provision until a proper study has been undertaken of the testing system, of those affected and of the costs to individuals, families and the Government.

From the Government's point of view, this makes good sense if they want to avoid the kind of debacle we witnessed with Atos Healthcare's conduct of the work capability assessment. I simply do not believe that the new system will be ready to go by April 2013, when it is due to come into force. From where we are now, there must be a 15-week consultation period on the latest draft of the criteria, followed by a modicum of time for the Government to respond if the consultation is to be genuine. Regulations will have to be prepared and consulted on. The DWP states that the regulations will not be ready until the end of this year. After that, the details of the assessment will have to be finalised before contracts can be tendered and set for carrying it out. This cannot be rushed if the sort of problems that bedevilled Atos Healthcare, the company that carried out the work capability assessment, are to be avoided. Therefore, it is as much in the Government's interests as those of disabled people that we take the time needed to get this right.

Lord Newton of Braintree: My Lords, for the second time today I feel that I need to say something, however brief, because of my history. Just as I engaged in badinage earlier with the noble Baroness, Lady Lister, about the Social Fund, I now have to declare to the House-possibly as a proud boast-that as a Minister I was responsible for introducing the disability living allowance in the early 1990s. I was given huge help by someone who deserves a great deal of credit, namely my former and unhappily now late colleague, Nick Scott, whom some noble Lords in the House today will remember with respect and affection.

On that occasion, we cobbled together a slightly curious construction based on the existing benefits of mobility allowance and attendance allowance, using the maximum amount of money I could extract from the Treasury at the time, to extend help to various groups who had previously been excluded, including the mentally ill. Perhaps we did a better job than I thought at the time because it has not only stood the

17 Jan 2012 : Column 522

test of 20 years but has survived with people now seeking to defend it against all comers, in much the same way as they defend the Social Fund.

What I say to the House may be uncomfortable for the noble Baroness, Lady Grey-Thompson, and the noble Lord, Lord Low, for whom I genuinely have huge respect. This is not flannel; they are immensely valuable Members of this House. However, I have been taken down a different path. If somebody had told me 20 years ago that that structure was to be seen as anything near a settled state for 20 years, I would have been surprised, because there were obvious ways in which it could have been developed and carried forward to build on what we had achieved at the time. That is what the Government now seek to do. I say to the noble Baroness that I am not sure that it is right now to try to slow down the process by yet another review after the many that we have had.

Only yesterday the Government published a revised review of the assessment process. I accept that neither I nor anybody else has had a chance to digest it. However, it makes it crystal clear-this picks up on the second half of the noble Baroness's amendment-that this will be worked through steadily and carefully, in conjunction with organisations representing disabled people. I assume that account will be taken of the results of that consultation. Of course I accept that it would be nicer in a perfect world if we had all the details now, and that there will need to be a good deal of tweaking-or perhaps more than tweaking-as the consultation proceeds. However, I also accept that we have a Minister who knows his stuff, who cares about the subject and who has shown himself to be willing to listen to those representations. We should let him get on with it.

I do not accept the tenor of the e-mails that jammed my system from yesterday through the early hours of the morning into today, which suggested that the Government had a dastardly plot to do down disabled people. It is not the case, and I would not say this if I believed that for a moment. It is clear to me, having glanced at some of the e-mails-I have not been able to read them-that a number of them came from people who will not only not lose but may well gain from the proposals that the Government made. I hope that the senders will reflect on that.

This is not the moment for the House to agree this amendment. If we want to agree amendments, I suggest that between now and Report both the Minister and the House might reflect on the desirability of some extra-affirmative procedure of the kind used in the Public Bodies Bill for affirmative resolutions-I hope that they will be affirmative-that will come forward as a result of all the consultation. That would be far more productive than trying to slow the whole thing down with another review.

I have other points to make but the hour is late and the House wants to get on, so I will conclude by saying that at the end of the day I speak only for myself when I say that this would certainly cause delay, and would almost certainly add to the cost of an already expensive government programme. There may be smaller issues later, including those espoused by my noble and learned friend Lord Mackay, on which I may take a different

17 Jan 2012 : Column 523

view; but this amendment is strategic, damaging and mistaken, and I hope that noble Lords in all quarters of the House will join me in opposing it if it is pressed to a Division.

Baroness Browning: In the context of this amendment and the ability of health and social services to carry out their statutory responsibilities under the Autism Act, will my noble friend agree to take a look the number of people who currently have DLA but are predicted to lose it? There is a read-across here, because small levels of support have been identified as having prevented people taking their place in society and gaining independent living.

As I mentioned previously, I am concerned that as regards those who will lose the allowance-some will and others who apply in the future will not get it-the measure is going to have an impact on the way in which we have required health and social services to implement the Autism Act. Does my noble friend agree that there will be some hardship for those who lose it and that we have to face up to that reality, and that the Government should have a clear and examined view of how they are going to square that with the new statutory responsibility?

Lord McKenzie of Luton: My Lords, we support this amendment, moved so comprehensively by the noble Baroness, Lady Grey-Thompson, and spoken to so effectively by the noble Lord, Lord Low. I would say to the noble Lord, Lord Newton, that in doing so we are not motivated by a belief that this is all some dastardly plot, but a belief that we need to be assured that the system does not just need to be tweaked but that it is fit for purpose before this major change is introduced.

This amendment is aimed at helping the Government get right the process of transfer from DLA to the personal independence payment. It calls for an added layer of safeguards within the process of reform, with an independent review of the plans for operation of the assessments before they start and a trial period when the assessment process first comes into effect. Crucially, it calls for the full involvement of disabled people and their organisations in this process, ensuring that they have confidence that the assessment process for the new benefit will be fair. The need for safeguards in this area has been all too fully revealed with the experience of the employment and support allowance. The noble Lord, Lord Newton, told us that he was responsible for introducing DLA-which in Committee the noble Lord, Lord Low, called an "iconic" benefit-and he should be proud of that achievement. I have some responsibility for having introduced the employment and support allowance so I cannot claim any such accolade.

It is clear that the assessment process has not been working and has caused not only distress to too many disabled people but considerable headaches for the Government. We all know that 39 per cent of appeals have led to a decision about ESA being overturned in favour of the claimant, and the unreliability of the assessment procedure has also made it difficult for the Government accurately to budget for the cost of these

17 Jan 2012 : Column 524

reforms. The Office for Budget Responsibility's November economic and fiscal outlook states:

"ESA changes have resulted in an increase in expenditure of £1 billion by 2015-16",

and the latest administrative data suggest that fewer people than previously assumed will be judged fit for work as a result of the initial ESA work capability assessment and the reassessment of incapacity benefit cases, and more will be placed in the support group. This accounts for around four-fifths of the increase. Other changes arise from a change in assumptions about the composition of the ESA caseload, which results in higher average benefit payments per person and higher inflows. The costs of getting this process wrong can therefore be high, and we know that the Government have benefited from the independent review of the ESA assessment process undertaken by Professor Harrington.

As other noble Lords have said, we received just yesterday the document providing further information about the second draft of the PIP assessment criteria, together with proposals on entitlement thresholds, impact modelling and case studies. While this technically fulfils the Minister's commitment that we should get it before the Report day, as we have previously noted, there has hardly been time for detailed study and analysis-although it is hard to miss the startling figure that some half a million disabled people will be excluded from the new benefit in comparison to existing DLA arrangements. Before causing this to happen, the Government should be called to account for the impact that this may have on the disabled people who are missing out.

7.15 pm

The January document launches a 15-week formal consultation on the assessment criteria and this is welcomed as another opportunity for disabled people to input their views. However, this is no substitute for what this amendment calls for: that before these provisions are implemented, there is an independent review focused on implementation, with trial periods before the full rollout. There can be little doubt that proposals to abolish DLA for working-age claimants and substitute the personal independence payment have caused genuine consternation among disabled people. The representations we have received reflect that. What we have heard from our own colleagues, noble Lords in particular, who are powerful advocates for disabled people, in Committee and again today reinforces this.

We accept, as do many people, that DLA in its current form needs updating but the huge difference the benefit has made to the lives of millions requires the absolute maximum assurance to be provided before any replacement is implemented. That reassurance is made more difficult by the 20 per cent cut in the budget provision and in the context of some £18 billion of cuts from the coalition Government, which the IFS and others confirm are careless of the circumstances of the poor and disadvantaged. Whatever the Government's protestations, there is a strong belief that the changes are about securing cuts.

The Minister will argue that the proposed assessment process will be assessing different things in a different manner, but the parallels with the work capability

17 Jan 2012 : Column 525

assessment are clear. Most would accept the concept of the WCA, but implementation has been chaotic and the assessment process flawed. Improvements are under way but these were driven by the independent report of Professor Harrington. Indeed, it was the independent report of the noble Lord, Lord Low, which brought about the Government's change of heart, which we appreciate, on the mobility component and care homes.

The changes from DLA to PIP could cause a major upheaval in the lives of millions of people, many of them extremely vulnerable. We do not argue against change, but for a precautionary approach in introducing that change. This should include an independent report before the start of change, focused particularly on the assessment process, trials before general rollout and, above all, meaningful engagement with disabled people, because they deserve no less.

Lord Kirkwood of Kirkhope: The noble Lord is an experienced hand and has made a very interesting speech, but it would help the House enormously if he could be tempted to give an assessment-if he was the Minister facing Amendment 50-of how long he thinks it would take to discharge the responsibilities contained in the amendment.

Lord McKenzie of Luton: It is clear that the Government are going to have to do some of this anyway, but in terms of an overall time period it is clearly a matter of some months rather than weeks, but not a matter of years. It depends on the determination and effort that the Government bring to bear. They have the levers and the resources to cause this to happen quite quickly, I would suggest, but there has to be full engagement with disabled people for it to be meaningful. This does not mean endless delay in the introduction but it does mean a real level of reassurance before we embark upon this very significant change.

Lord Freud: I will come to my conclusion first. Basically, we are doing a lot of trialling in this process and the way that this particular amendment is drawn would delay us very significantly. At the end of my speech, I will give the noble Lord the actual cost that we estimate the delays will represent.

I will spend a bit of time highlighting our approach to developing, testing and refining the assessment criteria that we already have. We have been developing those in collaboration with a group of independent experts, including disabled people and disability organisations. We had initial proposals on which we then carried out 16 weeks of consultation. We met 60 disability organisations; had 170 written responses; and carried out testing involving sample assessments of around 900 volunteers selected from current or recent DLA claimants. Both the testing and the consultation were very effective and allowed us to review, revise and improve the draft assessment criteria from that published in May. We provided a second draft in November in advance of discussing the PIP clauses in Grand Committee. Since publication, we sought the initial views of disabled people and the organisations that represent them in an informal way

17 Jan 2012 : Column 526

to listen to their thoughts. Yesterday, as promised, we published a further document detailing our initial thinking on entitlement thresholds for the rates and components of PIP. We have now commenced a formal consultation on the entire assessment criteria, including the weightings and entitlement thresholds which will last for 15 weeks.

That gives disabled people and disability representative groups the opportunity to tell us what they think the criteria will mean to them and their members and what amendments might be needed before we finalise the regulations. I can assure my noble friend Lord Newton that those regulations, which we will lay later this year, will be subject to the full affirmative procedure of both Houses. We are confident that we will be able to test the impact of these using the data we gathered during our earlier exercise. If for any reason this is insufficient, we will carry out additional testing to support our analysis. In response to a specific request from my noble friend Lady Browning, I will personally look at the impact of this on our autism obligations and I will make sure that that is done as a key part of this process.

There have been, and there remain, significant opportunities for involvement from disabled people and their organisations, and significant opportunities to influence our proposals to ensure we get them right. That, however, is not all. In terms of the delivery and operation of PIP, we intend to continue to develop a number of our operational processes in conjunction with disabled people and their representative groups through our implementation development group, which I talked about a little earlier this evening. This group has already played such an important role that it is our intention to retain its services after April 2013 in order to work with it to help evaluate the new delivery arrangements.

We have also created a number of customer research panels, made up of groups of disabled people who share similar characteristics, in order to understand, and gain an insight on, how the process impacts upon them. We will also test our operational processes in a model office environment, allowing us to see how they work without affecting individuals' benefit entitlement. The trouble with a formal trial, of course, is that it would change what people actually get even though we are trialling. Here, by doing it in a model office, we can do it in a way that does not actually affect what they receive, but we know exactly how it will work.

We want similar arrangements to be in place with regard to the processes of the eventual supplier of the assessments of the benefit. We will be making it clear to bidding organisations that we expect them to work with disability organisations on the design of their processes, to improve the customer experience. This will be before, during and post-implementation. This will be a clear requirement in the contracts.

As well as getting the whole development process right, I recognise the value in moving away from a big-bang approach to implementation which would see both new claims and reassessments beginning in April 2013. Since the Committee stage, a significant amount of work has been undertaken to investigate the options for ensuring a sensible implementation

17 Jan 2012 : Column 527

which allows us to learn from early experience. Therefore, I can inform the House that, in addition to the pre-implementation testing work that I have already mentioned, we will limit the number of new claims for personal independence payment to a few thousand per month for the first few months of implementation. This will allow us fully to trial all the processes in a truly live environment. We are still developing the details on how we can meet our claimant target over the first few months.

Once we are satisfied that the new processes are working as intended with this reduced number, we will allow all new claims for personal independence payment to enter into the process. We will continue monitoring and reviewing the processes to ensure they are working effectively and appropriately and to see how claimants are finding the experience. We will begin to reassess existing DLA claimants in a co-ordinated way six months after the initial implementation. Again, we will stagger this process. We expect the first stage of reassessment to start in the autumn of 2013, beginning with individuals on a DLA fixed award who will need to renew their claim and those claimants who report a change of circumstances on their existing DLA claims.

At the same time, we intend to conduct a pathfinder trial reassessing individuals who would not, in the ordinary course of events, come up for reassessment. We expect the pathfinder to run for around three months to ensure the processes for identifying and contacting people and taking them through the claim processes are working satisfactorily. Allowing a small number of existing DLA claimants to advance through the reassessment process ahead of full national implementation will enable us to be sure that our approach to engaging these customers into the claims process is working effectively ahead of widening the selection. Also very relevant here is the independent review and report on the assessment that we are legislating for in Clause 87.

During Committee, the noble Lord, Lord Rix, laid an amendment seeking to increase the number of independent reviews carried out. Noble Lords will remember that I promised to take this matter away and consider it further, and I have done that. Our revised proposal is that we legislate for two biennial independent reviews within the first four years of the implementation of PIP. The first would report within two years, beginning with the date on which the first assessment regulations come into force, and the second within four years of that date. Although it is only two reviews formally in legislation, we commit to undertake a third if the second review demonstrates ongoing issues with the operation of the assessment which need to be addressed in this manner. That is a firm commitment from me and my ministerial colleagues.

In reality, in the way that we are structuring this, we are trialling it in any real sense; we are doing it on a gradual basis. If we do it in this way, we will get the assessment and wider benefit processes right; we will involve disabled people and we will learn from the earlier delivery of the benefit. We do not think, therefore, that the formal trial proposal in this amendment is necessary. However, if we do it that way, the House should know that it would push back the implementation

17 Jan 2012 : Column 528

of the benefit. Our estimate is that the loss will be £1.4 billion of savings over the reassessment window. Clearly, that has to be found somewhere else. I know that noble Lords opposite think that is funny.

Lord McKenzie of Luton: Could the noble Lord give us a bit more detail of that estimate? The figure of £1.4 billion seems to trip off the tongue as the cost of any amendment that we pursue.

Lord Freud: That is an assessment based on the delays that we anticipate from this amendment, which is actually similar to the previous amendment where I used the same figure. It would have the same effect of delaying the whole process. That is the Government's position, having worked through the implications of the amendment.

I remind the House of where the Opposition have got to with their amendments. We estimate that as a result of the votes on amendments so far, over five years they have imposed £3.8 billion-worth of extra costs, and this amendment will take that figure to £5.2 billion.

Baroness Hollis of Heigham: I am sorry to see a Minister, whose integrity and respect for evidence has been apparent to the whole House, going back to the box-ticking, false assumption that there are no political choices available to this House. There are plenty of political choices if the Minister wishes to use them-for example, freezing council tax, increasing council tax bands, looking at some of the things that go on in pensions tax relief and so on. It is not clear to me that the economic growth of this country depends on taking away DLA from some of the most disabled people in the country.

Lord Freud: My Lords, I do not want to debate where alternative cuts would be found by the Opposition if they were in government and needing to balance the budget. All I can tell you is that the effect of the amendments that the Opposition have supported comes to that figure. It is amazing how, given an amendment here and an amendment there, pretty soon you are talking serious billions. I am afraid that this is another amendment which involves a serious amount of money and, for that reason, it is not acceptable to the Government. I urge the noble Baroness to withdraw her amendment.

Baroness Grey-Thompson: I thank the Minister for some of the reassurances that he has offered tonight. He has, once again, moved further than I expected, although it would have been wonderful to have heard some of it a little earlier. I thank the noble Lord, Lord Newton of Braintree, for his consistent honesty and for what he has done for DLA. Unfortunately, I am genuinely sorry that I do not agree with him tonight because we have to get this right.

The noble Lord, Lord Low, talked about confidence and, even with what the Minister has said today, there is such a lack of confidence among disabled people about where we are going with this that I am really concerned.

17 Jan 2012 : Column 529

The Minister referred to costs, which are important, and huge financial sums are involved here. I would like to talk about cost-the social cost of what we are doing to the lives of disabled people. A number of disability organisations-I shall not go into how many-have contacted me and are telling me that we are not in the right place; disabled people are telling me that we are not in the right place; and my personal belief and conscience tell me that we are not in the right place. I wish to test the opinion of the House.

7.33 pm

Division on Amendment 50E

Contents 213; Not-Contents 229.

Amendment 50E disagreed.

Division No. 1


Aberdare, L.
Adams of Craigielea, B.
Adebowale, L.
Adonis, L.
Alli, L.
Alton of Liverpool, L.
Anderson of Swansea, L.
Armstrong of Hill Top, B.
Armstrong of Ilminster, L.
Bach, L.
Bakewell, B.
Bannside, L.
Bassam of Brighton, L.
Beecham, L.
Berkeley, L.
Best, L.
Bilston, L.
Blood, B.
Boateng, L.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Belmont, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clancarty, E.
Clarke of Hampstead, L.
Clinton-Davis, L.
Collins of Highbury, L.
Colville of Culross, V.
Crawley, B.
Darzi of Denham, L.
Davies of Abersoch, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Dean of Thornton-le-Fylde, B.
Dixon, L.
Donaghy, B.
Donoughue, L.
Doocey, B.
Drake, B.
Dubs, L.
Eames, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Freyberg, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Glasman, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grantchester, L.
Grenfell, L.
Grey-Thompson, B. [Teller]
Griffiths of Burry Port, L.
Grocott, L.
Hanworth, V.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskins, L.
Haworth, L.
Hayman, B.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hennessy of Nympsfield, L.
Hollins, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howells of St Davids, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
Kerr of Kinlochard, L.
Kestenbaum, L.
King of Bow, B.
King of West Bromwich, L.
Kingsmill, B.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Laird, L.

17 Jan 2012 : Column 530

Layard, L.
Lea of Crondall, L.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Listowel, E.
Low of Dalston, L.
Luce, L.
McAvoy, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Mallalieu, B.
Mandelson, L.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Meacher, B.
Mitchell, L.
Monks, L.
Moonie, L.
Morgan, L.
Morgan of Ely, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Morrow, L.
Neill of Bladen, L.
Neuberger, B.
Nye, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Paisley of St George's, B.
Parekh, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prashar, B.
Prosser, B.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Ramsbotham, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Robertson of Port Ellen, L.
Rogan, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Saltoun of Abernethy, Ly.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Leigh, L.
Snape, L.
Soley, L.
Stern, B.
Stevens of Kirkwhelpington, L.
Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Tonge, B.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Wilkins, B.
Williams of Elvel, L.
Wills, L.
Wilson of Tillyorn, L.
Wood of Anfield, L.
Wright of Richmond, L.
Young of Hornsey, B.
Young of Norwood Green, L.


Addington, L.
Ahmad of Wimbledon, L.
Allan of Hallam, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Ashcroft, L.
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Benjamin, B.
Berridge, B.
Bew, L.
Black of Brentwood, L.
Blencathra, L.
Bonham-Carter of Yarnbury, B.
Boswell of Aynho, L.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Cathcart, E.
Cavendish of Furness, L.
Chalker of Wallasey, B.
Clement-Jones, L.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Craigavon, V.
Crathorne, L.

17 Jan 2012 : Column 531

Crickhowell, L.
Cumberlege, B.
De Mauley, L.
Dear, L.
Deben, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Dundee, E.
Dykes, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Edmiston, L.
Elton, L.
Empey, L.
Falkner of Margravine, B.
Faulks, L.
Feldman of Elstree, L.
Fink, L.
Flight, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Framlingham, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glasgow, E.
Glenarthur, L.
Glentoran, L.
Gold, L.
Goschen, V.
Grade of Yarmouth, L.
Green of Hurstpierpoint, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B.
Henley, L.
Heyhoe Flint, B.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hogg, B.
Hooper, B.
Howard of Lympne, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
Hussein-Ece, B.
Inglewood, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jopling, L.
Kakkar, L.
King of Bridgwater, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Kramer, B.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Leach of Fairford, L.
Lee of Trafford, L.
Lexden, L.
Lindsay, E.
Lingfield, L.
Liverpool, E.
Loomba, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
Macdonald of River Glaven, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Maples, L.
Mar and Kellie, E.
Marks of Henley-on-Thames, L.
Marlesford, L.
Mawhinney, L.
Mawson, L.
Mayhew of Twysden, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Neville-Jones, B.
Newby, L.
Newlove, B.
Newton of Braintree, L.
Noakes, B.
Northover, B.
Norton of Louth, L.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
Oppenheim-Barnes, B.
Parminter, B.
Patten, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Popat, L.
Randerson, B.
Rawlings, B.
Razzall, L.
Redesdale, L.
Renfrew of Kaimsthorn, L.
Rennard, L.
Renton of Mount Harry, L.
Ribeiro, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Sanderson of Bowden, L.
Sandwich, E.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shipley, L.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Spicer, L.
Steel of Aikwood, L.
Stephen, L.
Stewartby, L.
Stirrup, L.

17 Jan 2012 : Column 532

Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Taverne, L.
Taylor of Goss Moor, L.
Taylor of Holbeach, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Winchester, B.
Tordoff, L.
Trefgarne, L.
Trimble, L.
True, L.
Tugendhat, L.
Turnbull, L.
Tyler, L.
Tyler of Enfield, B.
Ullswater, V.
Verma, B.
Vinson, L.
Wakeham, L.
Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Warnock, B.
Warsi, B.
Wasserman, L.
Wheatcroft, B.
Wilcox, B.
Williams of Crosby, B.
Willis of Knaresborough, L.
Wolfson of Aspley Guise, L.
Wolfson of Sunningdale, L.
Young of Graffham, L.
Younger of Leckie, V.

Consideration on Report adjourned until not before 8.48 pm.

Freedom of Information Act 2000

Question for Short Debate

7.48 pm

Tabled by Lord Hennessy of Nympsfield

Lord Hennessy of Nympsfield: My Lords, I very much welcome this evening's debate on access to official information and I am grateful to so many noble Lords for wishing to speak. It is, I think, the first time that your Lordships' House has had a chance to discuss the plans for additional openness announced by the noble Lord, Lord McNally, on 7 January 2011. He outlined four changes that the coalition proposed to make: increasing the number of organisations to which freedom of information requests can be made by bringing in such bodies as the Association of Chief Police Officers and the Financial Services Ombudsman; consulting on drawing in a range of further bodies, such as examination boards; undertaking post-legislative scrutiny to see how the Freedom of Information Act 2000 has worked in practice-a task which the Justice Committee in the other place will take up next month; and-especially dear to my historian's heart-making most public records available at the National Archives after 20 years instead of the current 30 years.

I know that the noble Lord, Lord McNally, is keen on this. He has been a good friend to historians. He has always been willing to talk to my students about the 1976 IMF crisis when he became a prime historical exhibit while working in No. 10 for the greatly missed Lord Callaghan of Cardiff.

Perhaps I may this evening mirror the Government's approach by taking a wider-lens view of freedom of information and look at it as a question of access to official information as a whole. To do so, our field of vision needs to encompass not just the workings of the Freedom of Information Act, for access is a matter of linkages embracing with FOI the output of the public records system and the often neglected, although related,

17 Jan 2012 : Column 533

matter of government-commissioned official histories-a subject on which the noble Lord, Lord Rodgers of Quarry Bank, led a debate in your Lordships' House four years ago.

Before turning to public records policy, I must first declare an interest as president of the Friends of the National Archives and as Attlee Professor of Contemporary British History at Queen Mary, University of London. Given my trade, I especially welcome the coalition's pledge to implement the provisions of Part 6 of the Constitutional Reform and Governance Act 2010, which was passed in the last days of the Labour Government and created a new 20-year norm to replace the 30-year rules that have been operational since 1972. The plan is that from January 2013 an extra year's worth of declassifications will be added to the 30-year process until the 10-year gap has been closed.

I understand that the statutory instrument for triggering the new archival flow has yet to be signed. I am neither a pessimist nor a sniffer of conspiracies but I would welcome reassurance from the Minister on this point. In the same spirit, I would welcome publication of the 20-year rule guidelines for record reviewers in government departments-who are fondly known as "the weeders" -so that Parliament can check that they will be no more restrictive than the current ones for 30-year releases.

I am confident that the new 20-year rule will stimulate a cataract of fine theses and excellent books, for a fresh run of documents is like giving the historical profession a new currency with which to trade. This is precisely what happened in the 1990s after the noble Lord, Lord Waldegrave of North Hill, who I am delighted to see in his place, as Sir John Major's Minister for Open Government, put in place what we historians called, and still do, the "Waldegrave initiative" whereby departments were encouraged to re-examine particularly sensitive files that had been retained for longer than 30 years.

By 1998, when Whitehall stopped measuring its yield, 96,000 files had been declassified as a result, which filled gaps in the defence, intelligence and nuclear elements of the post-1945 secret state. I am full of admiration for the departmental records teams in Whitehall and the staff of the National Archives. I am equally aware of the pressure on budgets and manpower, but I urge the Government to consider commissioning a "Waldegrave 2" to run alongside preparations for the 20-year rule to ensure that as little possible remains in departmental strong rooms, including files that were still too sensitive to release in the 1990s but that might safely be declassified now. If the Minister agrees, we might even call the initiative "McNally 1".

Those 30-year releases are a form of delayed freedom of information. FOI disclosures are welcome and often highly revealing, but they are fragmentary and it is runs of documents that historians need. FOI, to be candid, is not an unmixed blessing for scholars because it has led to greater caution in what is written down.

I turn now to official histories. I have not written one myself, but I am very grateful to those who have, not least for providing a window into Whitehall short of 30 years, and, in Christopher Andrew's authorised history of MI5 and Keith Jeffery's history of MI6 up

17 Jan 2012 : Column 534

to 1949, opening up windows into the necessarily most opaque parts of the secret state. The Cabinet Office, under the energetic guidance of Mrs Tessa Stirling, is the engine room of official histories. Thirteen have been commissioned since 2000, eight of which have already been published. The Pilling report of 2009 urged still more and suggested enhancements in the commissioning process, while the Hamilton report of the same year laid out improvements in the marketing of the books produced. The Government have not yet pronounced on Pilling-Hamilton. I hope the noble Lord, Lord McNally, will this evening be able to accept the recommendations and undertake to implement them when funds allow.

For the general public the most visible manifestation of the public records system is the annual festival of 30-year revelations in the media between Christmas and the new year. This time, understandably, it was the riots of 1981 that attracted most attention. Few noticed a security file in the No. 10 papers of the noble Baroness, Lady Thatcher, dealing with a leak inquiry instigated by the noble Lord, Lord Armstrong of Ilminster, then Cabinet Secretary, into a story on civil contingencies planning that I had written in the Times as that paper's Whitehall correspondent. I am glad to say that the investigation got absolutely nowhere, but its declassification, as I think my noble friend Lord Armstrong would agree, has brought a frisson of amusement to both of us-a kind of bond between us after all these years.

There is, however, a truly hidden treasure in the latest releases for those with a taste for personal and political drama, after, perhaps, seeing that remarkable film "The Iron Lady". It is a Cabinet Office file containing the records of the third world war that never was of March 1981: a transition-to-war drill exercised in great secrecy in Whitehall every two years in which officials role-played Ministers. It ends with the United Kingdom under conventional and chemical weapons attacks from the Soviet Union and its allies, and the British War Cabinet reaching and crossing the nuclear threshold, with the role-played-I emphasise that-Mrs Thatcher declaring that never before had a Cabinet been faced with such a grim choice between capitulating to a powerful and malevolent aggressor and embarking on a course of action that could end with the destruction of civilisation. It is gripping, desperate and-mercifully-fictional stuff, which cries out, I think, to be converted into a film script.

To finish by returning to reality, I stress that well organised and sustained access to official information, current and past, is crucial to the accountability of our system of government and the richness of the historical residue that clings to the Velcro of our collective memory. Such practices enhance the depth and quality of the rolling national conversation about government policy and politics without which no open society can flourish.

7.57 pm

Baroness Shephard of Northwold: My Lords, I have two rather narrow points to make in this valuable debate so brilliantly introduced by the noble Lord, Lord Hennessy.

17 Jan 2012 : Column 535

First, it is obviously in the interests not only of historical accuracy but, I would add, of transparency in the democratic process that there should be access to Cabinet and other government papers.

Secondly, if such access is not well structured and organised, and accompanied by well observed conventions, the public will inevitably be more interested in the political disclosures involved than in greater historical understanding of the events concerned. I believe the increasing use of FOI requests illustrates this point.

The conventions are all-important. Without them, the noble Lord's objectives of a clearer and more accurate understanding of the past could be at risk. The convention that a Government cannot examine the files of their predecessor was breached by Ruth Kelly as Education Secretary in 2006, when she sought to make public her predecessors' decisions on teachers debarred from working with children-the famous List 99-with no prior consultation. This was regrettable. It was an enormously sensitive issue, which was, inevitably, hyped up by the media. This resulted in inaccurate press coverage, problems for children, for schools and for individuals and, in the end, a negligible increase in public understanding of the issues concerned.

There may not have been time to develop conventions with the Scottish Parliament. Something tells me that the Scottish Government might not be too interested in discussing these things, but their decision unilaterally to reduce the no-disclosure period to 15 years-again with no consultation with their Westminster counterparts, who, by definition, are the ones who will be affected-raises a number of questions, not least about political motivation.

It is obvious that the public interest is served by the orderly and properly structured publication of government decisions, but without observed conventions the more accurate and informed public understanding of past events that we all want could be threatened by short-term sensationalism and even political manipulation. The conventions and their observance are key in achieving the noble aims so eloquently described by the noble Lord, Lord Hennessy.

8 pm

Lord Thomas of Gresford: My Lords, "Transparency", said Sir Humphrey Appleby cynically,

I am grateful to the noble Lord, Lord Hennessy, for introducing this debate. It is to the credit of this Government that they have maintained the commitment in the coalition agreement to build on the Freedom of Information Act and to,

17 Jan 2012 : Column 536

The Act has been in full operation for upwards of seven years. When it was introduced, local authorities recorded information in a more traditional way. The right to data now being introduced will ensure that public authorities make electronically stored data readily available in a reusable form. I spent 10 minutes this afternoon looking at complaints about the potholes in the road outside my home in Gresford, which are published on the local open website and was happy to realise that, in the past six months, my very good local Lib Dem councillor had managed to resurface the whole of that area.

The Act has been extended, as the noble Lord, Lord Hennessy, said, and proposals in the Protection of Freedoms Bill will extend it to companies owned by a number of authorities. There are real social and economic benefits, apart from for the writing of history, to be gained by enabling businesses, non-profit organisations, volunteers and others to use freely the datasets held by public authorities for social and commercial purposes.

For my own part, I would extend the provisions of the Act to private companies carrying out public work paid for by the taxpayer. I agree with the Public Accounts Committee which said recently in its 44th report published last July:

"Transparency on the full costs and benefits of PFI projects to both the public and private sectors has been obscured ... commercial confidentiality should not restrict the ability of the public, Parliament and decision makers to access information".

I hope that the Minister will be able to comment upon that view; I am sure that Sir Humphrey would not agree.

8.03 pm

Viscount Colville of Culross: I thank my noble friend Lord Hennessy for having secured this debate on such an important issue. I declare an interest, having been a journalist, both on newspapers and in television, for most of my career. Since the introduction of the Freedom of Information Act, I have seen at first hand the beneficial effect of its principal aim, that of improving the openness of public bodies to wider scrutiny.

The Ministry of Justice will consult 200 bodies carrying out public functions and receiving public funds which are not covered by the Act. I should like to focus your Lordships' attention on several of these bodies.

There will be consultation with two examination boards, AQA and Edexcel. Edexcel is a private company which is the UK's largest award-giving body; AQA is an education charity providing GCSE and A-levels to English and Welsh schools. I remind the Minister of the concern felt across the educational establishment about the aggressive manner in which these examination bodies compete for GSCE and A-level business. An investigation last year by the Daily Telegraph exposed how privileged information was being given by these bodies to teachers at feedback seminars. Ofqual is now looking into the matter. There is concern also about the uneven quality of marking by these boards. A survey last year by the National Association for the Teaching of English expressed great anxiety about the qualityof the marking of English at A-level. These processes and these boards need to be made open and public.

17 Jan 2012 : Column 537

The Local Government Association and the NHS Confederation are also being consulted on the extension of the Act. The LGA has campaigned against the vexatious and expensive effect of FOI requests on its local authority members, citing a fourfold increase during the past six years. I would argue that this figure is evidence of the success of the Act. Certainly, it has revealed stories such as the 6,000 council houses lying empty in London last year and the £31 million in fines paid by utility companies for overrunning roadworks. In fact, the Constitution Unit found that 95 per cent of local authority FOI officers felt that the Act had brought increased openness to local government. If the LGA's members have so benefited, I suggest that their representative body would garner similar advantages.

The NHS Confederation is also up for consideration. In autumn last year, its trustees agreed a new transparency and accountability policy which would ensure that it was open and transparent to the public. However, the voluntary nature of this agreement means that there is no right of appeal to the Information Commissioner. An extension of the Act would rectify this omission.

I urge the Minister to bring the Justice Ministry's consultation on these bodies to a speedy conclusion. The last exercise to extend the FOI Act was launched on 25 October 2007, but was not implemented until four years later. I hope that this new consultation will be carried out in a fraction of the time.

8.06 pm

Lord Armstrong of Ilminster: My Lords, I am glad to be contributing to this short debate initiated by my noble friend and former adversary Lord Hennessy of Nympsfield. I say "former adversary", because when he was the Whitehall correspondent of the Times and I was the Principal Private Secretary at 10 Downing Street, I was required by my political masters to see that Whitehall did all it could to frustrate his knavish tricks, designed to extract information about the working of government which government would have preferred not to disclose. He collected nuggets of information with indefatigable diligence, like Squirrel Nutkin collected nuts, but, unlike Squirrel Nutkin, he always knew where he had stored his nuggets and where to find them when he needed them.

Now that the noble Lord is no longer a mischievous journalist but a learned professor, and I am a mandarin long since put out to grass, we are firm friends. I can acknowledge that, though he did not win them all, he did win more than we could have wished, and that much of what he succeeded in extracting was relatively harmless if occasionally a little embarrassing.

I am much in favour, and always have been, of the greatest degree of transparency in government as is reasonably possible. That is owed by government, central and local, to Parliament and to the councils to which they are accountable, and to the people they represent. But freedom of information is not, at least in its current legislative form, an unmitigated boon and blessing to men. Tony Blair expressed the point in his memoirs in his own characteristically vivid style:

"You idiot"-

he says, addressing himself-

his words, not mine-

17 Jan 2012 : Column 538

"It" is the Freedom of Information Act. He goes on:

"you" is now Sir Humphrey, I think-

It is a well attested fact that, if I was the model for anyone, it was for Sir Arnold Robinson, not for Sir Humphrey Appleby. None the less, I am sorry that I was not around to be consulted in Mr Blair's hour of need. I was already, unfortunately, well into my retirement.

I am afraid that there is no doubt that the risk of unwarrantable disclosure created by the Freedom of Information Act is liable to be damaging to the quality of governance. My successor, the noble Lord, Lord O'Donnell, has gone on record with his anxieties about the threat that the Freedom of Information Act presents to the usefulness of the minutes of the meetings of the Cabinet. Those minutes are not a verbatim record; they are none the less a comprehensive and accurate account of what the Cabinet decides and why. They are a valuable tool of administration. Their value depends upon their comprehensiveness and their accuracy. Their value would be diminished-they could even be misleading-if they had to be edited or bowdlerised to minimise risks of unacceptable disclosure under the Freedom of Information Act.

More generally, Ministers and officials, and indeed other people, now hesitate to put in writing things which are important, and which ought to be conveyed to their readers, but which they would not want to see having to be disclosed in response to Freedom of Information Act requests. The result is not only that discussion among colleagues is less candid than it should be but also that policy decisions may be taken on inadequate information.

The perverse effect of freedom of information legislation is thus to make important information less freely available where it is most needed and to impair the quality of governance. This is a problem that may well need to be addressed by amending legislation if its effects are not to become cumulatively more damaging.

I just add my support for the programme of official histories and my hope that the Minister will be able to assure the House that, despite the need for austerity in public spending, the programme will be maintained.

8.10 pm

Lord Black of Brentwood: My Lords, I declare an interest in this subject as the executive director of the Telegraph Media Group. It is worth remembering the opening words of the 1997 White Paper on freedom of information, which began thus:

"Unnecessary secrecy in government leads to arrogance in governance and defective decision-making. The perception of excessive secrecy has become a corrosive influence in the decline of public confidence in government".

Fifteen years on, such sentiments remain as forceful as ever. That FOI has perhaps not lived up to all the expectation is perhaps because, in my view, the 2000 Act did not go far enough. The Government's transparency agenda, including the increase in scope of that Act, is a welcome step to remedying some of its initial deficiencies. I wish it went further now, to include all contractors performing public functions on

17 Jan 2012 : Column 539

behalf of public authorities-an extension all the more vital because of the contracting-out provisions of the Localism Act and the health service reforms currently before this House. Will the Minister look at that?

There are concerns-eloquently expressed by the noble Lord, Lord Armstrong-that FOI has had a negative impact on government decision-making by increasing the practice of what is termed sofa government, with damaging consequences for government record-keeping. As a historian, I am only too well aware that a comprehensive and accessible archive of government decision-making is a precious legacy to future generations. However, I believe that those concerns are misplaced. The last inquiry that looked into them-the review of the 30-year rule led by Mr Paul Dacre, working with the distinguished historian Sir David Cannadine-concluded that:

"We accept that 'sofa government' may have occurred at certain times in twentieth-century British history- indeed, long before FOI and the introduction of the 30 year rule; but we believe that it is more likely to be a reflection of leadership style and political circumstances than to be motivated by any concern regarding the timing of the future disclosure of official documents".

For those interested in maintaining a comprehensive record of the deeds and doings of government, which is available to the public under FOI or the 30-year rule, there are far greater concerns than FOI, of which the most vital is the vulnerability of digital records. Most business is now recorded digitally. These records are subject to rapid obsolescence, with often a natural life of only five years. Already the oldest digital government records from the early 1990s are lost for ever, because appropriate software is no longer available or storage media is corrupted.

There is also the problem of digital information overload, with, in the words of the 30-year review,

Although digital technology may assist in making government more open, it has the paradoxical effect of making a permanent archival record far more difficult to establish, because documents disappear into digital landfill. Those two problems present a huge issue for the long-term maintenance of government records. That is a deeply worrying problem to tackle. It would help to hear from the Minister about what the Government are doing to ensure that electronic record capture is an integral part of government IT infrastructure-the key point for all of us who are concerned about the maintenance of government records.

8.14 pm

Lord Wilson of Tillyorn: My Lords, in this very short debate, for which we are all grateful to my noble friend Lord Hennessy, I want to touch briefly on two issues. One is the effect on the Foreign and Commonwealth Office in particular of the Freedom of Information Act and the other is the consequences, again essentially for the Foreign and Commonwealth Office, of reducing the period of restriction on government records down to 20 years. I fear that on both I have a more suspicious and restrictive view than my noble friend Lord Hennessy.

Maximum openness of government is something that everybody wants, historians particularly, although my noble friend Lord Hennessy has managed to produce

17 Jan 2012 : Column 540

fantastic accounts of British policy and the way the government machinery operates without any changes in the way in which the records are dealt with. However, there are dangers, particularly for departments of state such as the Foreign Office. We always say we want officials to speak truth to power. However, will those officials be speaking as much truth if they think they are not talking just to power but to the whole population as well? Will they not, as my noble friend Lord Armstrong suggested, avoid written communications and get into huddles in corridors? Is that really for the benefit of the nation as a whole? Perhaps the Minister could comment on how this sort of danger might be avoided.

Then there is the problem of reducing the restriction of access to public records from 30 years to 20 years. Legislation is already in place to do that. Some years ago, I did a PhD on British policy in the 1920s towards the rise of nationalism in China. Most records were open, but there was one fascinating file that was closed for 70 years. It was the response by a senior Foreign Office official to a paper from the number two in the British mission in Peking, Owen O'Malley, around 30 pages long, about what British policy to China should be. I puzzled about what this reply from the Foreign Office said-clearly it revealed key things about British policy. I went to see Sir Owen O'Malley later. He said, "You must see the reply I got to my paper. It was so abusive that the Foreign Office has closed it for 70 years".

That did not need closing, but I suggest that other things do. Imagine a conversation a young person in a British embassy has with a friend in a country. The friend is frank about the failings of his country and the people who are responsible. Later, he becomes a senior official. Does he want those sorts of things to be in the hands of his enemies, only 20 years later, when he has risen to a high position? I think there is a serious issue there. Perhaps again the Minister could suggest how "McNally 1"-which I think it is going to be-could somehow deal with this issue; lest, as I fear we might, with the best possible intentions, we finish by shooting ourselves in the foot.

8.17 pm

Lord Bew: My Lords, I thank my noble friend Lord Hennessy for initiating this debate. My remarks will follow broadly in the spirit of his remarks and, like him, I have to declare an interest as a practising university historian, at Queen's University Belfast, and as secretary of the All-Party Group on Archives and History.

There is an important Irish dimension to this question, relating to the decades of commemorations that are about to come upon us in Ireland: of the signing of the Ulster covenant, the Easter Rising and the war of independence. There are still important documents in Kew that have not been released in this context. I am interested because historians need to be armed. Quite rightly, there is a certain nervousness in both Governments about the emotional consequences of some of these commemorations. For some, they are a rather bad model-the argument is that the commemoration in 1966 of the Easter Rising played a role in triggering the subsequent Troubles. Historians need help, and we have formed an ad-hoc group of historians on a

17 Jan 2012 : Column 541

north-south basis, under the chairmanship of Professor Eunan O'Halpin of Trinity College, Dublin. We all feel that the more help that we get from Governments to release documents, the more valuable we can actually be.

I am not talking about spasmodic release. For example, when Tony Blair was Prime Minister, Bertie Ahern, the Irish Taoiseach, wrote to him and said, "Could we please have Roger Casement's SIS files released?" and they were released. I am talking about something somewhat more systematic. There is one thing in particular that Her Majesty's Government could do: they could get in touch with Commonwealth states-Canada, Australia, New Zealand-and say to them that they could safely declassify Irish material from the period 1913-23. We strongly suspect that it remains locked away because it contains security-related exchanges with London that no longer have any particularly poisonous dimension to them. I very much hope that the Minister, who has been a friend to historians, will help us in this matter.

However, I would like to add something slightly more cautious in the spirit of my noble friend Lord Wilson's remarks about the move to a 20-year rule. I am certain that before long our political class will agree to this, and there is a reason for that. Even the great figures of our current political class, a Thatcher or a Blair, are at the top for only 10 or 11 years, so a 20-year rule is something that they can feel quite comfortable with. For good or for ill, there are no longer any Mr Gladstones, who sat in Peel's Cabinet in the 1840s and was putting through the third Home Rule Bill in 1893. If we had politicians who spent 50 years at the top, I am certain that we would not be talking about a 20-year rule.

It is not politicians or their reputations that worry me; it is the young officials. I have talked to members of the committee that made this recommendation, I believe that it is the spirit of the times and I support it broadly. However, even under the 30-year rule young civil servants have been embarrassed by material that has been released. We need to be a little cautious about this matter.

8.20 pm

Lord Turnbull: My Lords, the FOI Act has, as intended, brought important benefits to citizens by giving them information on decisions affecting their lives. However, one area of the Act is not working as intended-the so-called safe space. In all the discussions leading to the Act, the code of practice, the White Paper, the Bill itself and reports by committees, the need for a safe space was repeatedly acknowledged. The noble and learned Lord, Lord Falconer, speaking on the Bill in 2000, said:

"I should ... make clear that many people on both sides of the debate consider that it is appropriate that policy making should not take place in a goldfish bowl: that there should be a process which allows Ministers, public authorities and civil servants to exchange views in a way that they feel will be private to give them that space to think and make decisions".-[Official Report, 24/10/00; col. 282.]

When taken with the principle of Pepper v Hart that the courts should be able to look at the parliamentary record as well as at the specific wording of the Act, it is crystal clear what Parliament intended. Why, then, has the safe space been under repeated attack? It is because

17 Jan 2012 : Column 542

Section 35 does not confer an absolute exemption but requires a balancing public interest test. In applying that test, however, the commissioners and the tribunal have tended to focus narrowly on the information sought in the request, not the wider signal that the disclosure produces. Any release contains two forms of information: that inherent in the document, and that which provides signals how about the commissioner/tribunal are expected to respond in future cases. There will be cases where the information itself may cause little harm but where releases of similar documents could have a big effect on the behaviour of Ministers and officials. The commissioners and the tribunal appear to place little weight on this wider impact despite the advice of many distinguished people.

There is a further dimension. The Civil Service is required to give its best advice to Governments of different complexions. This will inevitably become more difficult if the advice given by named officials is revealed to successor Governments, a danger referred to in the papers by none other than the noble Lords, Lord Heseltine, Lord Mandelson and Lord Butler. There are two ways out of this: either the commissioner and the tribunal pay more heed to the original intention of Parliament or the use of the ministerial veto, always intended as a backstop, will, sadly, become more frequent.

8.22 pm

Lord Cormack: My Lords, I can think of nowhere else where such a brief debate could contain so much. We are all enormously grateful to the noble Lord, Lord Hennessy, for the manner in which he introduced the debate, just as many of us are grateful to him for all that he has done for contemporary history.

I speak as one who for some 24 years was on the Royal Commission on Historical Manuscripts and sat on the council of archives, and who occasionally had to chair a panel to adjudicate on whether a certain document should indeed be released. I therefore have a great deal of sympathy with the general case that the noble Lord so brilliantly and wittily made when he opened the debate.

There are other things that we have to consider, though, and some of them have been touched upon in this debate. The importance of archives is such that we must not endanger them or their preservation. My noble friend Lord Black talked about the digital and electronic archive, which is something to which we have not yet devoted sufficient attention.

My noble friend Lady Shephard of Northwold talked very eloquently about the need for conventions. It is truly important that we have those. What we do not want is an incentive to destroy or an incentive for people to go into the back garden of an embassy, which I was once told about when I visited an iron curtain country. That was the only place where people dared talk. We need to have the conversations between Ministers and civil servants recorded and released at the appropriate time.

However, the appropriate time is not always necessarily after 15 or 20 years. Sometimes it has to be longer. Although the noble Lord, Lord Bew, said that we no longer live in the age of Gladstone, in which a statesman could be active for 50 years, maybe he is being a bit premature. We live in an age of longevity. At the

17 Jan 2012 : Column 543

moment we have three party leaders who could well still be active in politics in 20 years' time. I should not like to think that they were being driven to make difficult decisions on the sofa or somewhere that are not adequately recorded so that the Hennessys of the future and those who look back, not as contemporary historians but as historians viewing a whole sweep of history, are deprived of essential evidence.

In this, as in all things, we have to get the balance right. If we take the judicious approach of the noble Lord, Lord Hennessy, tempered by the cautious words of the noble Lords, Lord Wilson and Lord Armstrong, we will have the ideal solution. I know that my noble friend Lord McNally has a reputation for being something of a Solomon. We will have to hear what he says to us tonight. However, I hope he will be able to assure us that he has a passionate care for archives, but complete archives, and that he will do nothing to damage in any way the material that future historians will need.

8.26 pm

Lord Wright of Richmond: My Lords, I, too, congratulate my noble friend on initiating this debate. However, I should like to draw attention, as others have, to rather a different problem-namely, the extent to which the Freedom of Information Act in its present form and application, and the Government's existing transparency agenda, may affect the readiness of public servants at home and diplomats abroad to record their frank advice to Ministers, even though there are exemptions in the Freedom of Information Act designed to cover confidential advice to Ministers and damage to international relations.

Does the Minister agree that there is a real potential constraint on officials if they believe that their confidential advice is liable to be open to early public access in spite of these exemptions, as illustrated by the recent decision to stop valedictory dispatches by departing heads of mission? I personally deplore this, having benefited three times from the experience and assessments of my ambassadorial predecessors. I regard the problem as being not so much the availability of government records, but whether important advice to Ministers is failing to be recorded for eventual inclusion in the National Archives. There is also a potential problem for future historians, unrelated to the Freedom of Information Act, in the failure to register many of the constant official exchanges by e-mail.

It is, I hope, an exaggeration-although I have heard it said-that the application of the Freedom of Information Act has led to a climate of fear in Whitehall, and to a marked reluctance by officials to put their frank and confidential advice in writing, whether by minute, letter, dispatch or valedictories. The Minister knows well, from our service together in 10 Downing Street many years ago, the importance that we both attach to a relationship of mutual trust between Ministers and their advisers. Does he accept that there is a real danger of that mutual trust being eroded by the excessive application of the Freedom of Information Act?

8.29 pm

Lord Thomas of Swynnerton: My Lords, like other noble Lords I am grateful to the noble Lord, Lord Hennessy, for introducing this debate. I am also grateful

17 Jan 2012 : Column 544

to him for his work over many years in elucidating problems of great interest in English politics, particularly his discussion of how the nuclear weapons of this country were developed. He also developed well the idea of how we would manage to survive a nuclear attack in his book The Secret State, to which he alluded.

I have on one or two occasions come up against restrictions on the freedom of information. I remember writing a book and needing the text of the Non-Intervention Committee in Spain in the 1930s. I was told it was an official secret. I argued but I did not get very far until I found out that the Dutch version of these minutes and documents could be available to me if I went to Amsterdam. I discussed this with the Public Record Office, which eventually relaxed its control.

I had another experience once when, already a Member of this House, I tried to get the late Lord Dainton, then chairman of the British Library, to tell me how many people had visited the British Library- the old, noble British Library, which I still regret-the previous year. He told me-this is difficult to believe-that it was an official secret and I could not be informed. Recently, I have come across a different problem-if it is a problem. Letters that I wrote to the noble Baroness, Lady Thatcher, in the 1980s are now available for scrutiny in Churchill College, Cambridge. I do not mind that: I know that on one occasion I wrote a very important paper about the Ming dynasty in China because she was just about to go to China.

In this debate, we are trying to discuss where the line lies between the need for confidentiality: the need for Ministers, for civil servants and for private persons to have private conversations which are not leaked immediately; and the need which public persons, private persons, historians, journalists and others have for information. The difficulty of deciding this line has been touched upon very well by many noble Lords. I was particularly interested by the speeches of the noble Lords, Lord Wilson and Lord Armstrong, who pointed out the difficulty of immediate indiscretion, so to speak.

I feel have to sit down in a minute-I can feel a glare upon me. In conclusion, it is essential for public servants and politicians to be able to write down statements of policy and not just commit them to the telephone or to conversation. Dr Kissinger makes that point very strongly in an introduction to one of his volumes of memoirs and I very much agree with him. It is the written document which we need.

Baroness Royall of Blaisdon: My Lords, I, too, thank the noble Lord, Lord Hennessy of Nympsfield, both for securing this debate and for his own role, not just as an historian, but as a constitutional activist who has done a great deal more than most in pushing at the boundaries of official information.

First, I would like to endorse the proposal from the noble Lord, Lord Hennessy, for a "Waldegrave 2". Just as the initiative of the noble Lord, Lord Waldegrave, helped historians understand our recent past, so, too, would a reconsideration of the issues now. Secondly, I would also endorse his call for the Pilling and Hamilton reviews on the official history programme to be implemented.

17 Jan 2012 : Column 545

However, my main concern is the Government's proposal to review the operation of the FOI Act 2000. Although the FOI Act was passed by a Labour Government, this does not of course mean that everything about it is perfect. The wriggling of this Government in relation to the Department of Health's risk register is clear evidence of that. So we on these Benches-well, my colleague and I-welcome the establishment of a review of the 2000 Act, in the form of a post-legislative scrutiny of the legislation.

There is a continuing need for consideration about whether the Act has got right the balances it seeks to strike: for instance, between disclosure and operation in government; between transparency and the need to reduce regulatory burdens; between, in effect, good government and open government. In that respect, I welcome the intervention by the noble Lord, Lord O'Donnell of Clapham-whom I am delighted to see in his place-in his final remarks as Cabinet Secretary. My own experience in government suggests that there is indeed a need for proper policy-making space in government and also suggests that FOI, as a piece of legislation, has had some negative as well as positive effects. Discussion in government can be less open as a result of FOI. Fewer things are now written down in government as a result of FOI. These are not good outcomes either for good governance or for future historians.

Set against that are the clear and real successes of FOI, as detailed in the Government's helpful memorandum on the Act, published last month, which will form an important part of the review of that Act. At present, the review is to be carried out by the House of Commons Justice Select Committee, chaired by Sir Alan Beith, the Member for Berwick-upon-Tweed. The Select Committee is a very fine body and its chairman a very fine chairman, but there is a case-a strong case-for the form of that inquiry to be expanded.

Today's debate gives me the opportunity to propose that even at this late stage the vehicle for the review of the operation of the FOl Act 2000, first suggested by the Government in January last year, should be extended to a review carried out by a committee of both Houses. That would also be in line with the spirit of the Goodlad report, and the Leader of this House has always said that he is in favour of this House undertaking post-legislative scrutiny. The expertise of your Lordships' House across a whole range of activities is clear.

A Joint Committee of both Houses might well be the best means of carrying out a review. Or perhaps, given that the work of the Common's Justice Committee on the matter is already under way, there might be scope for that Committee to co-opt or include in some way as part of its process Members of your Lordships' House, and this House should explore and pursue this matter further with the House of Commons.

8.36 pm

The Minister of State, Ministry of Justice (Lord McNally): My Lords, in the spirit in which the Leader of the Opposition intervened, perhaps I may say that it is an interesting idea to broaden the post-legislative scrutiny. The rules are that it is within the scope of the relevant committee to do that, but I will draw her remarks to the attention of Sir Alan. It would be

17 Jan 2012 : Column 546

useful if that committee made use of the experience and expertise available. One of my memories of the original Act was the ludicrous situation at that time whereby there was pre-legislative scrutiny by two committees-one from this House and one from the Commons-sitting at either end of the Corridor, with witnesses moving from one to the other.

First, I apologise to all noble Lords who have taken part. This should have been a three-hour debate that gave the eminent people who have contributed a proper opportunity. I will not do my usual practice of trying to refer to the individual points raised. Instead, I should like to provide a considered omnibus reply that I will send to each Member who has participated and put it in the Library of the House, because the issues raised are too important. If I tried to reply to each in turn, I would look up and all my time would have gone. With the permission of the House, I will do it that way.

I must say in passing that I have never seen so many mandarins in one place since my school production of "Chu Chin Chow", and it was great to see them all out. I am of course immensely grateful to my old friend and colleague, the noble Lord, Lord Hennessy. He is quite right-it is about time that I got a PhD from Queen Mary college because of the number of times I see a letter beginning with, "Professor Hennessy has suggested you might be able to help with my research". I am grateful in one way because I am in several footnotes to history around the various work that is done. My time goes back even further than his clash with the noble Lord, Lord Armstrong, because I was working for Harold Wilson when the Times, with great fanfare, announced this new creature that was going to pace the corridors of power: a Whitehall correspondent, one P Hennessy-to which Harold announced that any civil servant found talking to this new creature would be fired on the spot. Such was the spirit of the age.

The Leader of the Opposition pointed out that the Freedom of Information Act was the work of the previous Government. Let me put on record my admiration for the noble Lord, Lord Clark of Windermere, who produced the first White Paper on freedom of information and on which the Act was built.

I am grateful to the noble Lord, Lord Thomas of Gresford, for the quotation from "Yes, Prime Minister". I do not think that any of us who have watched "Yes, Prime Minister" and "Yes Minister" and have actually worked in Whitehall and Westminster have ever considered it as comedy; we watched it more as documentary. In passing, I should say that I still have not worked out how in those days Sir John Hunt could manage to get from his office way down in 70 Whitehall to the foyer of No. 10 to greet the Prime Minister without any of the electronic devices that we have today to know that the Prime Minister was about to return, but now as I watch it on the cable channels I find the show still very pertinent.

As many Members are aware, I am a long-standing enthusiast for transparency and freedom of information. I therefore continue to be proud to have an opportunity to help shape the next phase of freedom of information in this country. I note what the noble Lord, Lord

17 Jan 2012 : Column 547

Armstrong, said with his vivid quotation from Tony Blair's memoirs and indeed the valedictory from the noble Lord, Lord Macdonald, who I am very pleased to see in his place. They are matters and opinions certainly to be taken in evidence, although it leaves me, as a proponent of the Act, also to argue that when Prime Ministers and mandarins object, this Act might actually be doing something that it was intended to do.

Next Section Back to Table of Contents Lords Hansard Home Page