I am prepared to look at the definition I have crafted and without doubt there might be something that we can improve on. However, I agree with the noble Baroness, Lady Barker, that this is crucial because it is the only piece of statutory provision we have to make sure that statutory health services, the voluntary sector and social services work together. Time after time over the past 30 years local authorities have used any opportunity they can not to provide Section 117 aftercare services. It goes to legal action and then they back off. Why do it when we can resolve this? We do

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not need the first bit that says “the mental disorder”. Why introduce that level of doubt? We are on the same side and we can move forward on this, and we do not need to introduce any doubt. I am pleased that we have something to think about and to work together on and I am sure that between us, as we did last time, we will come to an amicable conclusion. In the mean time, I beg leave to withdraw the amendment.

Amendment 105 withdrawn.

Clause 68 agreed.

Schedule 4 agreed.

Clause 69 : Prisoners and persons in bail accommodation

Amendment 105A

Moved by Baroness Northover

105A: Clause 69, page 57, line 7, at end insert—

“( ) In its application to an adult who is residing in any other premises because a requirement to do so has been imposed on the adult as a condition of the grant of bail in criminal proceedings, this Part has effect as if references to being ordinarily resident in an area were references to being resident in premises in that area for that reason.”

Baroness Northover: My Lords, the Government have tabled a number of amendments in relation to prisons to help clarify the interface between local adult safeguarding boards and prisons. This group of government amendments serves two purposes. Amendments 129 to 136 further clarify the relationship between prisons, approved premises and local safeguarding adults boards. Obviously prisons and approved premises retain a duty of care towards and responsibility for the safety of all their detainees. Mechanisms are already in place to hold them to account if there are concerns about the care or safety of prisoners.

Prisons have their own safeguarding procedures, so we believe that it should be left to local discretion to determine whether it is appropriate for a governor or other prison staff to become members, rather than a statutory duty. This is the intention of the first part of subsection (7), which we believe should remain. As such, local safeguarding boards will not conduct inquiries or serious case reviews in relation to incidents occurring while someone is in prison or approved premises with care and support needs. However, we want there to be open dialogue between prisons and approved premises and local safeguarding adults boards so that the prisons and approved premises receive the information and advice which the board can provide for the benefit of prisoners and residents. This would not be possible with the draft clause as it stands. It is therefore our intention that safeguarding adults boards will be free to invite governors or other prison officers to sit on the board and, whether or not a member, governors, directors or controllers of prisons will be able to approach a safeguarding adults board to ask for advice and guidance in improving their safeguarding arrangements. I hope I have made the Government’s position in relation to prisons and safeguarding clear through these proposed government amendments.

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I now turn to the remaining government amendments to Clause 69, Amendments 129 and 137 to 141, which clarify other matters. They make clear that a temporary absence from prison or approved premises will lead to someone continuing to be treated as detained in prison or residing in approved premises or other bail addresses for the purposes of this clause. The amendments also ensure that the rule in subsections (1) and (2), regarding which local authority is responsible for an individual’s care and support needs, applies to people bailed to addresses other than approved premises. Finally, the amendments remove the paragraphs which deem that once an individual has been sentenced to prison they are to be treated as detained in prison for the purposes of this clause. On reflection, the Government believe that these deeming provisions are not necessary. That also removes the unintended consequence that those given a suspended sentence would be treated as detained.

I now turn to government Amendments 105V and 105T. These would implement the recommendations set out by the Delegated Powers and Regulatory Reform Committee in its first report of Session 2013-14 in respect of regulations under Clause 22(2)(b), Clause 49(10), Clause 50(1) and (4) and Clause 59(2). The committee recommended that regulations made under Clause 22(2)(b) should require the affirmative procedure and that regulations for the remainder should require the affirmative procedure on the first exercise of the powers. We are happy to accept these recommendations and I beg to move.

5.30 pm

Baroness Browning: My Lords, this is something of a miscellaneous group of amendments. I wish to speak to Amendment 105Q standing in my name and that of the noble Lord, Lord Touhig. I also refer the Committee to my interests in the register as far as autism charities are concerned.

This Bill must ensure that the duties set out in the statutory guidance under the Autism Act 2009 continue to apply to local authorities and local NHS bodies in order to ensure the ongoing implementation of the Act, which remains England’s only disability-specific legislation. The Act led to the publication of the adult autism strategy and the accompanying statutory guidance. When the Bill went through the House—I was on the committee when it went through another place—great play was made by the Minister of the importance of statutory guidance rather than having certain things on the face of the Bill. Ministers therefore have a responsibility to ensure that it is complied with. The guidance commits the Government, local authorities, local NHS bodies and other stakeholders to take action to improve the lives of adults with autism across England. This year, the Department of Health will undertake a statutory review of the strategy. This amendment seeks to ensure that the statutory guidance resulting from the Autism Act is embedded in the new legislation and that nothing that currently gives protection to people with autistic spectrum disorders slips through the net.

Lord Low of Dalston: My Lords, I shall speak more briefly, your Lordships will be pleased to learn, than I have in any of the debates we have held so far in

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Committee. I wish to speak to Amendment 105R. This is a probing amendment designed to seek clarification as to the meaning of Clause 72. The clause gives local authorities power to delegate some of their functions to other care providers. This raises the question of whether care provided under such delegated authority should be regarded as arranged by a public authority and therefore subject to the Human Rights Act. Clause 72(6) states that:

“Anything done or omitted to be done by a person authorised under this section … is to be treated … as done or omitted … by … the local authority.”.

This means that the local authority remains bound notwithstanding any delegation of its functions. But the Joint Committee on the draft Care and Support Bill recommended that the clause should be amended to state that the person with delegated authority is also subject to the same legal obligations as the local authority itself. It is argued that this should include obligations under the Equality Act 2010, the Human Rights Act 1998 and the Freedom of Information Act 2000. However, subsection (7)(a) puts the whole matter in doubt by providing that this does not apply,

“for the purposes of the terms of any contract between the authorised person and the local authority which relate to the function”.

The amendment seeks clarification as to what this means and an assurance that not only local authorities but also those who provide care under these arrangements will be treated as public authorities for the purposes of the Human Rights Act and other legislation.

Lord Touhig: My Lords, I shall speak to Amendment 105Q in my name and in the name of someone I am proud to call a noble friend, the noble Baroness, Lady Browning, who spoke to this amendment so well and eloquently. As law makers, we can be proud of the Autism Act 2009. It was a significant piece of legislation and it is well embedded. I look forward to the review of the autism strategy that the Government are now undertaking. This amendment will ensure that the duties set out in the statutory guidance continue to apply to local authorities and NHS bodies to ensure the ongoing implementation of the Act. There is much wisdom and common sense in this and I hope that the Government will support it.

Lord Patel of Bradford: My Lords, I shall speak to my amendments 105AA and 105CA, which affect subsections (6) and (7) of Clause 69. Amendment 105AA ensures that people in prison and those residing in approved premises have the same equivalence of care when it comes to safeguarding inquiries by local authorities under Clause 69(6). Amendment 105CA requires a senior member of the Prison Service to be a member of the safeguarding adults board in the area.

We just have to look at the figures in terms of the vulnerability of people in prison: prison suicide rates are 14 times greater than in the general population; over a third of offenders have self-harmed; many have a huge number of delusional disorders and personality disorders and a great many have drug and alcohol problems. This is all compounded by prisoners struggling to get access to services for a range of reasons, and they are impeded by waiting times and transfers within

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the prison system. Prisoners with complex needs may have too many different agencies to work with when they are released. Prisoners with such problems are particularly vulnerable, and the characteristics I have outlined are the norm rather than the exception. Providing appropriate care and support can have a significant impact on reoffending and greatly enhance people’s ability to rebuild their lives on release.

However, a huge lack of clarity around the provision of adult social care for prisoners has led to care needs not being addressed or identified, and this in turn has increased the risk of reoffending upon release. I welcome the clarity provided by the Government through this Bill, which places the responsibility for the adult social care of prisoners on the local authority where the prison is located. Clause 69 outlines the responsibilities of local authorities towards people in prison with care and support needs and ensures that they are able to access care and support on a similar basis to those in the community. The Bill confirms local authorities’ responsibilities towards this group by applying core duties to assess and meet needs on the same basis as for other groups.

However, I am concerned that, having made such a significant and welcome commitment to the social care of prisoners, people in prison and people residing in approved premises, which means people living in the community, they are not to receive the same equivalence of care when it comes to safeguarding inquiries by local authorities under Clause 69(6). I am pleased that government Amendment 105A allows safeguarding adults boards to provide advice and assistance to protect all adults in its area, including those in prison and residing in approved premises. This is a significant and positive step forward in helping to protect vulnerable individuals wherever they might be, and aids the support staff who work with them.

However, denying prisoners and people residing in approved premises the benefit of “enquiry by local authority” when safeguarding concerns are raised surely places an already vulnerable group of individuals at even greater risk. The offer of advice or assistance is no substitute for statutory inquiry when safeguarding concerns are raised. “Enquiry by local authority” not only protects the individual, it also helps to shine a light on some of the most hidden corners in our society. It is another tool to help ensure that our prisons are safe both for vulnerable prisoners and for the staff who work with them. An inquiry by the local authority does not duplicate the excellent work undertaken by Her Majesty’s Inspectorate of Prisons or by the prison itself. It complements and enhances them and, most importantly, it could help to save lives. While the Minister’s amendment is helpful, I feel that it does not go far enough. I would be grateful if she could give us a clear reason why such changes have not been included.

I am also pleased that the Minister has moved forward in enabling governors or prison officers to be members of safeguarding adults boards. I would say that they should be told to be on a board because we know how busy prison officers and staff are. If it happens on a voluntary basis, unfortunately we will

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get regular lack of attendance; people will not turn up to the meetings. It is important that we get some joint working between prisons and local authorities. Prison staff can learn from safeguarding boards, as they have done in Surrey, which is a fantastic example of prisons working with local authorities. Prison staff benefit from the expertise of social services and local authority safeguarding teams.

5.45 pm

Lord Ramsbotham: My Lords, I support the noble Lord, Lord Patel, on Amendments 105AA and 105CA, and will comment on government Amendments 105B to 105D. I do so as a former Chief Inspector of Prisons who was closely involved with safeguarding inspections of children, which we were able to carry out thanks to there being a social care inspectorate in position at the time. The inspections were joint in that they covered a number of inspectorates, not just the Commission for Social Care Inspection. At the same time, I was conducting a thematic review of the treatment of the elderly in prison, who were causing intense concern. Unfortunately, at that time the social services that were responsible for the elderly in the country did not function in prisons. I had hoped for the adoption of what I understand the Government now intend to do: to make the social services responsible for the oversight of the elderly in prisons. In speaking to these amendments, I am conscious that the Government are almost there, but not quite.

I wonder, too, whether the Ministry of Justice actually consults with other ministries about Bills that affect prisoners. We are about to start the Committee stage of the Children and Families Bill. We have to try to remove a clause that prevents young offenders being subject to the pathways for those with special educational needs. Prisons are allegedly to be excluded. Only last Wednesday, the noble Lord, Lord Dubs, raised a question about jobseeker’s allowance and prisoners not having access to benefits in time. I wonder whether the clause not applying to prisoners was discussed or whether the Ministry of Justice has come to a view on something that will affect an increasing number of people in the prisons: the elderly.

There is an extreme need for local social services to be involved in prisons by statute and by right. With due respect to the Ministry of Justice and the Prison Service, when I listen to the Minister saying that “it will be left to the prisons” and that it “should” be statutory, or that they “can” invite members of safeguarding adults boards into prisons, I do not think that that is good enough. The track record, if you go into prisons over the years, is that it is not good enough.

The other thing is that people are simply not trained enough to be able to conduct the care that is so essential for the elderly element of the prison population. There are many concerns over the fact that too many staff have simply no idea about problems to do with dementia, which is but one of the issues. To phrase this provision loosely and say that somebody from a prison “may” be a member of the board is not good enough. It really should be laid down in statute that somebody must be a member. If it is not the governor, it must be someone from the senior prison management team.

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The other reason it must be a member of the senior management team is that people change. There is such movement in the staff of a prison that if you are not careful, you will not have somebody who knows what they are doing and knows the people in the local authority to contact if there is a problem with somebody who needs care. It is important to have it statutorily laid down not just for somebody to be responsible within the prison, but so that those who are responsible for delivering support and care know precisely who to make contact with. It is no good leaving it nebulous by just going to the prison and finding somebody. If you do that, you will find that the “somebody” is not there. I believe very firmly that someone should be made responsible and accountable for this.

I welcome the fact that prison officers and prison custody officers may be members of the boards, and mention has been made of the work done by HM Inspectorate of Prisons. That is fine, but only goes half way. I hope that the Care Quality Commission will conduct inspections of the safeguarding of adults in prison. The commission would use the other inspectorates, which will have something to contribute to that. As was done with the safeguarding of children inspections, they would be joint and not merely limited to one part. I very much hope that the Government will carefully reconsider these amendments, perhaps in consultation with the Ministry of Justice—which, I would hope, would have objected to these two clauses anyway.

Baroness Wheeler: My Lords, this is largely a group of government technical amendments, interspersed with amendments from noble Lords probing important aspects. On Clause 69, my noble friend Lord Patel’s Amendments 105AA and 105CA would ensure that local authority safeguarding inquiries do apply to adults in bail accommodation and, in respect of Safeguarding Adults Boards, would enable prison governors or other prison staff to be members of the board.

Government Amendments 105B and 105D address those issues. On safeguarding inquiries, the Government’s proposal to allow SABs to provide advice and assistance to persons in bail accommodation is a compromise. My noble friend has argued that that is not good enough and we strongly support that view. How can local authorities have premises in their areas where abuse or neglect could occur and not have a duty to conduct a safeguarding inquiry?

On prison governors being members of Safeguarding Adults Boards, my noble friend is exploring ways in which governors and prison staff can best participate in and learn about the board’s role and work. I look forward to the Minister’s response on how she thinks the Government’s amendments best facilitate this.

The remaining Clause 69 government amendments include a number of tidying-up measures which we support to reduce the burden on local authorities, such as clarifying local authority ordinary residence rules in relation to bail accommodation, explicitly exempting prisons and bail accommodation from local authority safeguarding adults reviews, and minor technical amendments to change the general language relating to the clause.

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Under Clause 71 and Amendment 105Q from the noble Baroness, Lady Browning, we return again to the Secretary of State’s powers in relation to local authorities and NHS bodies. Both the noble Baroness and my noble friend Lord Touhig make a strong case for statutory guidance previously in place to continue to apply under the new legislation until the Secretary of State declares otherwise. The noble Lord and noble Baroness, as usual, speak strongly on autism and the Autism Act being embedded in the new legislation. However, there is a wider issue of ensuring that the Secretary of State retains ultimate responsibility, arguably more important than ever with the tendency of our current Secretary of State to hover above it all and act as if everybody else is responsible but him.

Amendment 105R of the noble Lord, Lord Low, to Clause 72 seeks to prevent a local authority from being able to delegate functions on its behalf under this part of the Bill. He is right to be cautious about how the local authority powers under this clause are used. I look forward to the Minister’s response to the amendment.

Finally, under government Amendment 105V in this group, I again raise an issue that I spoke of during last week’s safeguarding debate on the provider failure provisions under Clauses 47 to 49, designed to address responsibilities and actions in any future provider collapse, such as we saw most recently with Southern Cross residential care homes. The Lords Delegated Powers Committee expressed concern at the Bill’s failure to define what is meant by both “business failure” and “market failure”. Although I got an answer in passing in the following debate when the noble Earl the Minister responded to a question about provider failure from the noble and learned Lord, Lord Mackay, I would appreciate the Minister explaining today in more detail why the Government have chosen regulations to address these two issues, which are fundamental to the operation of the provider failure provisions of the Bill, rather than include the definitions in the Bill.

Baroness Northover: My Lords, I thank noble Lords for tabling the other amendments in this group on these very important issues. On the amendment in the name of the noble Lord, Lord Patel of Bradford, we agree that a person with care and support needs should be protected against abuse or neglect wherever they are. As I have already set out, prison governors and directors have in place procedures to follow in response to allegations of abuse or neglect. Governors and directors will provide assurance to the National Offender Management Service and Her Majesty’s Chief Inspector of Prisons, through their inspection regimes, that those procedures and their implementation provide similar protection to that available in the community. The Prisons and Probation Ombudsman will investigate individual complaints and incidents. I can assure the noble Lord, Lord Ramsbotham, that the Ministry of Justice and the NOMS have acknowledged that there is a need for improved directions to the Prison Service and probation trusts in this area. They will be working with officials from the Department of Health and stakeholders to develop instructions and guidance that will give clarity about the roles and responsibilities of the Prison Service and probation trusts in safeguarding

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adults in their care. In addition, prison governors and other prison staff will be able to approach their local Safeguarding Adults Board for advice and assistance in improving their arrangements. The MoJ was, of course, fully consulted on the provisions relating to prisons in the Bill and will be working with the Department of Health and NOMS to develop detailed guidance so that people who are concerned about the safeguarding issue will know exactly how to raise it and get advice on how to approach it. The MoJ is fully involved in the development of all parts of this clause.

The noble Lord, Lord Ramsbotham, also raised the issue of a statutory obligation on the senior management of prisons to take responsibility for the care and support needs of prisoners. The governor or, in the case of contracted prisons, the director, has the primary duty of care for prisoners and is the appropriate first point for reporting concerns. There is an investigations procedure in place for cases in which prisoners suffer significant harm. Prisons are monitored by a range of inspectorates, including the CQC.

Lord Patel of Bradford: I just want to get this point on record and then perhaps we can come back to it. I understand that prisons have a whole range of safeguarding measures in place. When there is a real problem that a prison has not resolved, why can a local authority not have an inquiry for a person who is vulnerable and at risk? That is my first question. If somebody is in approved premises, such as a bail hostel, and living in the community like anybody else, and they have been abused or are neglected or at serious risk, why should a local authority not have an obligation to have a safeguarding inquiry? I just cannot fathom why such a person would be excluded.

Baroness Northover: The point is that if local authorities must also conduct inquiries in prisons and approved premises, we run the risk of duplicating inquiries. Prison governors and directors have the primary responsibility for preventing abuse or neglect of prisoners with care and support needs. Prison governors already have a duty to care for and safeguard prisoners. If we duplicate this responsibility, we run the risk that the lack of clarity will mean that safeguarding concerns fall between agencies. Noble Lords will be extremely familiar with how this has happened in the past in other sectors. Therefore, a decision has to be made as to where the expertise is and where the primary responsibility is. The decision made in discussions with the MoJ and NOMS is that the primary responsibility is with the prisons. We have to make sure that they carry forward that responsibility. Obviously, they will draw on advice in the way that I described, but we need to make sure that there is one body with ultimate responsibility.

We agree that prison staff should have access to local safeguarding expertise if, in their particular circumstances, it would be useful, so we agree that the second half of the subsection, from the second “officer” onwards, should be removed. However, because prisons have their own safeguarding procedures, we believe that it should be left to local discretion to determine whether it is appropriate for a governor or other

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prison staff to become members of safeguarding boards rather than a statutory duty. That is the intention of the first part of subsection (7).

I now turn to Amendment 105Q, in the name of my noble friend Lady Browning and the noble Lord, Lord Touhig. It raises important issues about how future statutory guidance will be issued under the Bill and how it may interact with existing guidance. The noble Baroness, Lady Wheeler, also asked about this. We intend to develop a single, consolidated bank of guidance for local authorities covering all their care and support functions under this part of the Bill. We will replace all existing guidance that covers this territory to remove the potential for future misunderstanding. Current statutory guidance for local authorities is issued under Section 7 of the Local Authority Social Services Act 1970. Future guidance on adult care and support will be issued under Clause 71 of the Bill. The amendment also proposes to require a consistent application of the definition of an “NHS body”. We agree, of course, that definitions must be clear and consistent in guidance and regulations and we will keep this in mind in drafting regulations and guidance to ensure that key terminology and definitions are consistent. I can assure the noble Baroness, Lady Wheeler, that guidance remains in place until it is superseded by new guidance.

My noble friend Lady Browning and the noble Lord, Lord Touhig, referred to guidance for people with autism. As they said, unlike other statutory guidance related to care and support, this is issued under a specific requirement included in the Autism Act 2009. I can assure noble Lords that it is not our intention to repeal these provisions by this Bill. The duty to issue guidance on autism will continue. I hope noble Lords are reassured by that.

I now turn to Amendment 105R, to which the noble Lord, Lord Low, spoke. The Government believe it is right to allow local authorities the flexibility to delegate their care and support functions to third parties. However, when a local authority chooses to delegate any of its care and support functions, this must not be a way of relieving itself of its responsibilities for how those functions are carried out. This clause does not absolve the local authority of its legal obligations with respect to care and support functions. However, we believe it is necessary that, when a local authority arranges with a third party to carry out a public function, the local authority should have contractual recourse against that third party for breach of contract. Subsection (7)(a) ensures that this is the case. It is not a limitation of the local authority’s ultimate responsibility for the performance of its functions.

The noble Lord, Lord Low, asked to be reassured about the application of the Human Rights Act. I can assure him that the Human Rights Act applies to the discharge of public functions, so even when a local authority delegates its public function to a third party, that function must still be carried out in a way that complies with the Human Rights Act. Local authorities retain legal responsibility for anything done or not done by the third party when carrying out the function. It follows that any failure to carry out the function in a way that is compliant with the Human Rights Act will be considered a failure by the local authority. We do

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not think that this needs to be specified in law as it is covered. The function must be carried out in a way that is compliant with the Act. By specifically referencing the Human Rights Act in legislation there is a risk that this could imply that the Human Rights Act does not apply in relation to various other pieces of legislation where it is not specifically referenced. I hope that the noble Lord is reassured.

6 pm

Lord Low of Dalston: Can I just make sure—does that mean that the third party to whom the care function may be delegated is also liable under such legislation as the Human Rights Act?

Baroness Northover: What I have written here is that when the local authority delegates a public function to a third party, the function must be carried out in a way that is consistent with the Human Rights Act. It appears—I will clarify for the noble Lord if it is not the case—that the local authority has to abide by the Human Rights Act, but clearly, if it delegates something to a third party, which does not adhere to it, the third party is not adhering to its obligations to the local authority. By that device, the Human Rights Act would end up having an effect on what those third parties could do, even if they were not themselves directly responsible. However, I will clarify that if I am wrong.

Lord Low of Dalston: I am very grateful for that further clarification. It is reassuring to hear that the third party is under an obligation to carry out its functions in a manner that is compliant with the Human Rights Act. However, it would offer further reassurance if we were told that there was a remedy against the third party to which the function was delegated as well as against the local authority. I appreciate what the noble Baroness has said about a remedy against the local authority. However, as appeared when we talked about the application of human rights legislation a week ago, for remedies to have a practical effect so far as third parties carrying out delegated responsibilities are concerned, it is desirable—this was the view of the Joint Committee—that there should be a remedy against the third party to which responsibilities were delegated as well as against the local authority. In this instance that is, if I may put it this way, little more than a backstop. The remedy bites much more effectively if it can be seen to bite on the third party, to whom the responsibilities are delegated, and not just on the local authority. I hope that that further clarification of my point will make it easier for the noble Baroness to come back to me when she has looked into the matter further.

Baroness Northover: I will certainly write to the noble Lord and spell it out. Given the local authority’s responsibility for complying with the Human Rights Act, it is very unlikely that it would form a contract with a third party without ensuring that it knows that it will need to carry out whatever responsibility has been passed to that third party in the light of the Human Rights Act, otherwise the local authority will end up in court. I will write to the noble Lord in detail to explain how this operates.

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The noble Baroness, Lady Wheeler, asked why the Government have chosen regulations to address the issues relating to provider failures. There is no simple definition of business failure and—we have some very interesting handwriting here; it is worse than a doctor’s. My best bet is to write to the noble Baroness.

To return to summing up on this group of amendments, I hope that I have reassured noble Lords about their amendments in this group, that they will feel able to withdraw their amendments, and that I have persuaded noble Lords that the government amendments I have outlined here should be accepted.

Amendment 105A agreed.

Amendment 105AA not moved.

Amendments 105B and 105C

Moved by Earl Howe

105B: Clause 69, page 57, line 28, at end insert—

“(6A) An SAB’s objective under section 42(2) does not include helping and protecting adults who are detained in prison or residing in approved premises; but an SAB may nonetheless provide advice or assistance to any person for the purpose of helping and protecting such adults in its area in cases of the kind described in section 41(1) (adults with needs for care and support who are at risk of abuse or neglect).”

105C: Clause 69, page 57, line 28, at end insert—

“(6B) Section 43 (safeguarding adults reviews) does not apply to any case involving an adult in so far as the case relates to any period during which the adult was—

(a) detained in prison, or

(b) residing in approved premises.”

Amendments 105B and 105C agreed.

Amendment 105CA not moved.

Amendments 105D to 105N

Moved by Earl Howe

105D: Clause 69, page 57, line 31, leave out from second “officer” to end of line 34

105E: Clause 69, page 57, line 39, leave out “references” and insert “reference”

105F: Clause 69, page 57, line 40, leave out “include” and insert “includes”

105G: Clause 69, page 57, line 44, leave out “references” and insert “reference”

105H: Clause 69, page 57, line 45, leave out “include” and insert “includes”

105J: Clause 69, page 58, line 2, at end insert—

“( ) “Bail in criminal proceedings” has the meaning given in section 1 of the Bail Act 1976.”

105K: Clause 69, page 58, line 4, leave out paragraphs (a) and (b)

105L: Clause 69, page 58, line 11, after first “is” insert “temporarily”

105M: Clause 69, page 58, line 13, after first “is” insert “temporarily”

105N: Clause 69, page 58, line 14, at end insert—

“( ) a person who is temporarily absent from other premises in which the person is required to reside as a condition of the grant of bail in criminal proceedings is to be treated as residing in the premises for the period of absence”

Amendments 105D to 105N agreed.

Clause 69, as amended, agreed.

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Clause 70 : Registers of sight-impaired adults, disabled adults, etc.

Amendment 105NA

Moved by Lord Low of Dalston

105NA: Clause 70, page 58, line 20, at end insert—

“( ) A local authority must make contact with adults who have recently been certified sight-impaired or severely sight-impaired and who are ordinarily resident in its area.

( ) Regulations may specify the period after the issue of a Certificate of Vision Impairment within which a local authority must make contact with a sight-impaired or severely sight-impaired adult and the form of such contact.”

Lord Low of Dalston: My Lords, perhaps I will not speak quite as briefly as when I spoke to my earlier amendment to Clause 72, but still, I hope, briefly enough. This amendment concerns registers of sight-impaired and disabled adults. I declare my interest as a visually impaired person and vice-president of the RNIB.

Clause 70(1) places local authorities under a duty to establish and maintain registers of adults who are sight-impaired and severely sight-impaired—blind and partially sighted, to you and me—who are ordinarily resident in their area. Certificates of vision impairment are completed by consultant ophthalmologists and passed to local authority social services departments to decide whether to register somebody as blind or partially sighted. This is intended to provide someone with sight loss with a formal and reliable route to accessing social care services and to assist councils in planning such services. Guidance from the Department of Health and the Association of Directors of Adult Social Services states that it should take no more than 28 days from the health service issuing a certificate to the local authority completing registration. However, we know that this does not always happen, or at least not always promptly.

New registrations have declined sharply over the past 10 years. The number of blind and partially sighted people who receive some sort of community-based provision has declined by 36% over the six years from 2005-06 to 2011-12, with a particularly marked decline after 2009. This compares very unfavourably with the figure for all other adults with physical disabilities, for whom the figure is 23%. It has been suggested that the decline may be due to people not registering because they do not see the point or feel that it would be stigmatising. However, it is difficult to see why this should be. The benefits are just the same as they have always been, and the evidence is that the problems surrounding prompt registration are much more systemic than attitudinal.

The purpose of this amendment is to ensure that local authorities have a duty to make contact with adults shortly after they have been issued with a certificate of vision impairment to ensure a consistent approach to registering adults who have been newly certified as sight-impaired or severely sight-impaired. It builds on a suggestion by the Law Commission in its report of May 2011 on adult social care law. On page 189, the report states:

“The guidance for deafblind people suggests a more proactive role for local authorities in that they are not only required to keep a record but also ‘make contact’ with service users”.

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It went on to suggest that the Government should consider extending the requirement to make contact, to other service-user groups. Given the evidence on declining registrations, this would seem to make sense for the visually impaired as well. Only intervention makes a critical difference. Prompt registration can be crucial for accessing services, and effective rehabilitation. Nearly two-thirds of blind and partially sighted people say that because of their sight loss, they need help to get out of the house. However, without mobility training, which makes the greatest difference soon after certification, blind and partially sighted people are at risk of isolation and becoming housebound. There is also growing evidence of the link between sight loss and falls. Local authorities should step in before blind and partially sighted adults’ care and support needs intensify. When people have to wait for someone from social services to get in touch, it can lead to loneliness and depression. At present, ADASS guidance suggests that first contact should ideally take place within 48 hours, and certainly within two weeks. As I have said, the assessment of need is meant to take place within 28 days.

When the registration process works well, people with registrable sight loss access the support they need within weeks. However, the RNIB’s Lost and Found report of 2009 revealed a variation in the percentage of people reporting that they received a visit from social services within six weeks of their appointment at the eye hospital—a variation that ranged from 88% in the best local authority, to only 14% in the worst. In more than one area, patients reported waiting at least seven to nine months for an assessment or a home visit. Dr Stan Lopez, the head of a sensory impairment team in London, said that blind and partially sighted people typically slip through the net at the first stage.

This amendment would help ensure that local authorities reached blind and partially sighted people early, before they become depressed and isolated, and there is deterioration in their well-being. Recently published RNIB research studied the process of certifying and registering people as sight impaired, to understand why registration numbers have been falling. What particularly stood out was the extent to which social services departments can make a difference to the well-being of individuals, simply by making prompt contact. By making contact early, the local authority can arrange low-level and less costly support than if it waits for the individual to reach crisis point following many months of struggling on their own.

The duty laid on local authorities by this amendment would be quite proportionate. The rate of certifications of visual impairment issued per 100,000 of the population in 2010-11 was 43.1. The 22,500 adults certified as sight-impaired or severely sight-impaired in 2010-11 would typically translate into a big metropolitan authority, such as Birmingham, making contact with 430 newly certified adults a year; an inner London borough, such as Westminster, contacting 50; and a largely rural county, such as Cumbria, making contact with 320. Clearly, not all these adults would end up receiving the same level of service or even requiring a needs assessment. When you consider that there are 300,000 adults registered blind or partially sighted in England, this duty is clearly proportionate. It would mean that the roughly 20,000 adults whose sight problems are serious enough

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for an ophthalmologist to certify them in any given year are contacted by their social services department, and at the very least offered registration, which leads to individual benefits and entitlements, but we hope also speedier access to services which will help support independent living.

When the certification and registration process works well, service users are able to access support quickly, and report that it changes their lives. Building on Clause 70(1), which requires local authorities to establish and maintain sight impairment registers, the amendment would help them fulfil that duty by inserting a new subsection which would require local authorities to keep up-to-date registers by making contact with newly certified individuals. In summary, the amendment would ensure newly certified sight-impaired and severely sight-impaired adults are at less risk of losing out and falling through the gaps between health and social care services. I beg to move.

6.15 pm

Lord Hunt of Kings Heath: My Lords, that was a pretty persuasive case, to which I hope the noble Baroness will be sympathetic. The noble Lord made the particular point that early intervention will lead to better outcomes. That could be a message that relates to this Bill as a whole. The noble Baroness knows that we were not able to have our debate on services for deaf people last week because of the lateness of the hour. I wonder whether, between now and Report, she would be prepared to write to me about how she thinks this Bill might specifically relate to deaf people. Clearly, some of the issues the noble Lord has raised are apposite to deaf people in terms of early identification and assessment. I would not expect her to answer that point today, but it would be extremely helpful if she were able to write to me on it in advance of us coming back to the QSD in the early autumn.

Baroness Northover: My Lords, I thank the noble Lord, Lord Low, for his amendment. It raises some important issues. He emphasises that local authorities need to follow up those who have been newly certified as sight-impaired or severely sight-impaired in a timely manner where they have indicated that they wish to be registered or to have an assessment of their needs for care and support. Indeed, we have great sympathy with his concerns. We accept that people who have acquired a visual impairment should have an early opportunity to have access to information and advice so that they can adapt to their situation as quickly as possible and obtain any aids and support that will help them to manage their lives better.

As we have discussed, Clause 4 requires local authorities to make available universal information and advice on care and support, which will of course be relevant here. But people who lose their sight suddenly can also need more time to come to terms with their loss and engage with the support that might be available to them. If that is the case, it might be more appropriate to have a greater degree of flexibility around the timescales for when that support is offered or re-offered. Individuals differ in the way that they respond. We therefore believe that it would be better if the detail of

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this was covered in guidance, as it is for deaf-blind people, rather than in the Bill or in the regulations. In response to the noble Lord, Lord Hunt, there may well be a parallel here for deaf people, I am happy to write to him in answer to his questions.

Covering this in guidance would allow greater flexibility to update and adapt the arrangements. I can assure the noble Lord, Lord Low, that officials intend to work closely with the RNIB and other stakeholders to ensure that the guidance is as comprehensive as possible. He is absolutely right that the person needs to be at the heart of that guidance. In the light of what I have said to both noble Lords, I hope that the noble Lord, Lord Low, will be happy to withdraw his amendment.

Lord Low of Dalston: I am very grateful to the noble Baroness for her response, and also to the noble Lord, Lord Hunt of Kings Heath, for his support. On what the noble Baroness had to say, I am very glad to hear that the Government propose to work with RNIB on refreshing the guidance. That will be very welcome. On that basis, I shall certainly want to withdraw the amendment. However, I would like to make a couple of points. The noble Baroness drew a parallel between the guidance on visual impairment and that for deaf-blind people. The Law Commission was in favour of upgrading the guidance for deaf-blind people to regulation status. Perhaps when the Government look at that question in respect of deaf-blindness and vision impairment, they may like to revisit it and consider whether guidance or regulations are the best vehicle.

I agree about flexibility, but the fact that somebody may need longer to adapt to sight loss or may need help for longer simply argues, to me, that they need help longer, not that they do not need prompt intervention. Even if you are going to need longer, or take longer to adapt to sight loss, you probably still require prompt intervention and early contact from the local authority to determine as quickly as possible what your needs are to put in place as quickly as possible what is appropriate to be put in place quickly, and to put in place what is needed over a longer time period as and when required.

With those observations, I beg leave to withdraw the amendment.

Amendment 105NA withdrawn.

Clause 70 agreed.

Amendment 105P

Moved by Lord Warner

105P: After Clause 70, insert the following new Clause—

“End of life care

After consultation, the Secretary of State may make regulations providing for—

(a) the right for an NHS patient to die at the place they regard as home or normal residence;

(b) a terminally ill patient who, in the opinion of a registered practitioner, is likely to die within six months to be exempt from local authority charges for adult social care.”

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Lord Warner: My Lords, I move Amendment 105P in the name of myself, the noble Lord, Lord Patel, and the noble Baroness, Lady Greengross. I shall also be moving Amendment 105PA, in the name of the noble Lord, Lord Patel, as he cannot be here today and he has asked me to speak on his behalf.

The proposed clause, and its amendment, on end-of-life care would enable the Secretary of State, after consultation, to make regulations doing three things. First, it would provide NHS patients with a right to choose to die at the place they regard as home or normal residence; secondly, it would make exempt from adult social care charges a terminally ill patient with six months or less to live; and, thirdly, it would require local authorities to consider the needs of such persons for care and support as urgent. I postponed a Question for Short Debate, which could have been scheduled for tomorrow, so I hope that this magnanimous gesture will get me favourable treatment from the Minister.

Around 500,000 people die each year in England, about two-thirds of them over the age of 75. A century ago, most of us would have died in our own homes; today, most of us die in hospital. In his farewell report as national clinical director for cancer and end-of-life care, Professor Sir Mike Richards, now chief hospital inspector, reported that by April 2012, 42.4% of people were dying at home or in a care home. This is an improvement from 38% four years previously. On present trends, this means that it will be at least the end of the decade before half the deaths occur in a place of usual residence.

The improvement in the national figures conceals considerable regional variation. If you live in the south-west, with 48% of deaths occurring in a place of usual residence, you have more choice than those of us living in London, where the percentage drops to 35%. There is even wider variation between local authority areas. The great majority of us want to die at home or in the place where we normally live, rather than in the impersonal environment of a hospital ward. Perversely, we end up not only dying in the place where we least want to be but dying in the most expensive place. Marie Curie research has shown that a week of palliative care in the community costs about £1,000, whereas a week of hospital, in-patient, specialist palliative care costs virtually £3,000. The National End of Life Care Programme shows an estimated potential net saving of £958 per person if you die in the community rather than in hospital. Macmillan Cancer Support polling has shown that eight out of 10 health and social care professionals agreed that community-based, end-of-life care would save money. On top of that, an unusual position is that nine out of 10 MPs believe that their constituents should be able to die in the place of their choice. This produces remarkable cross-party consensus among MPs on this particular issue.

I am not trying to dragoon people into dying outside hospital to save money. I want people to have as good and dignified a death as possible with their friends and family around them. That is more likely to be achieved if people have a statutory right to choose to die at home or in their place of normal residence. This would mean fewer people dying at hospital, thereby saving public money. That is likely to provide more

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than enough resources for terminally ill patients within six months of death to be exempt from local authority social care charges. Making local authorities give assessment priority to such patients is likely to have minimal extra costs and is much more a matter of humane and good professional practice.

I have no time to recite all the other arguments in favour of this approach in this amendment, as set out by Macmillan, Marie Curie and Help the Hospices, in the excellent briefing that they sent to Members of this House. None of this briefing or the amendment requires the Government to take action immediately. They can complete their pilots, do their own cost-benefit analysis and consult widely before bringing forward regulations. The amendment would put down a clear marker that Parliament wants government to move in the direction that most people want—towards the right to choose to die at home or their place of normal residence rather than in a hospital ward. I beg to move.

Amendment 105PA (to Amendment 105P)

Moved by Lord Warner

105PA: After Clause 70, line 9, at end insert—

“Where an adult is terminally ill, a local authority must consider their needs for care and support as urgent.”

Lord Warner: I move this formally, on behalf of the noble Lord, Lord Patel, as I have already spoken to it.

Baroness Jolly: I support the two amendments in the names of the noble Lords, Lord Warner and Lord Patel, and the noble Baroness, Lady Greengross. The House is probably getting quite tired of hearing about the Joint Scrutiny Committee, but this is another area where we completely agreed, and our unanimous report recommended pretty much the contents of these amendments to the Government. Sadly, the Government indicated their willingness to fund end-of-life care, but have not put the amendments in the Bill. So it was a sort of “but not now and not yet” response. The response that came back from the Government to the report was:

“We note the Joint Committee’s endorsement of our position that free social care at end of life has ‘merit’ and note that they strongly endorse the case for its introduction at the earliest opportunity”.

That is the Government responding to the report, but nothing is reflected in the Bill before us.

Both the present system and the new system that we are debating for access to care are really longwinded, and a lot of people in this position, at end of life, do not need a longwinded system of access. The DS 1500 certificate, which indicates that you have a terminal illness, can take weeks to complete. We all know that NHS care is easier to access. However, it does not link up with social care in most cases. A terminally ill patient can get NHS care but it is really difficult to get social care. Bring on integration, really. This is not fair for somebody who needs and wants a dignified death—wherever it should be. As the noble Lord, Lord Warner, has said, most people want to die at home. Often, the inability to cope at home without any support and social care drives people to hospital. Therefore, they find themselves ending up in expensive hospital care in

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a setting that is just not their choice. The noble Lord, Lord Warner, has quoted some figures so I will quote a few more that support his case. The Nuffield Trust has researched this and a 10% reduction of hospital admissions for people at the end of life could result in savings of £52 million. According to Marie Curie figures, this would easily cover the costs of free care at home for all the people who would die within a year—with some to spare. This also leads into the debate of the noble Lord, Lord Warner, about moving funding from health to care. We are talking about £52 million that would be spent by people dying in hospital. We would save that £52 million if we were able to keep them where they wanted to be. The £32 million assessment by Marie Curie is more than easily covered.

We all die. Most of us will have care needs. Most of us would want to die at home. Funding adult social care at the end of life would go an awful long way to achieve this. I am therefore more than happy to support these two amendments.

6.30 pm

Baroness Masham of Ilton: My Lords, I, too, support these amendments. People in the community definitely need better facilities. There is no doubt that people should have choice. My husband would have liked to have died at home. Sadly, that option was not available because he needed an antibiotic in a drip. He died in an A&E department. I therefore greatly support these amendments.

Baroness Wall of New Barnet: My Lords, I, too, wish to support the amendment presented by the noble Lord, Lord Warner. I want to focus particularly on the first part of the amendment and I support completely the sentiments within that. One of the points made by the noble Baroness, Lady Jolly, was very important. It is important to try not to have the elderly patients in the hospital so that their right to die wherever they want to be is where they are before they have to come in. The context here is not just the money. The noble Lord, Lord Warner, is absolutely right to point out that it is hugely expensive. I think that it is more than £3,000 if an elderly person is in hospital and dies in hospital. It is very much evidenced by the fact that they very often feel quite degraded by the lack of privacy when they die in hospital. By definition, it is not the same as being at home or, even, I would suggest a hospice, where people have very good experiences. The evidence provided by the noble Baroness, Lady Jolly, and the noble Lord, Lord Warner, is absolutely crucial.

I can tell the Committee from first-hand experience that people also say this to us. I declare an interest in Barnet and Chase Farm Hospitals. If I or anyone else in the hospital goes around the wards, the patients tell us that they would love not to be there to die. Certainly, the nursing staff would love them to be in a better, more dignified place to die. It is a hugely important part of any of the social care we are looking at.

Baroness Pitkeathley: My Lords, I, too, wish to speak in support of the amendments and to endorse what the noble Baroness, Lady Jolly, said about the recommendations of the Joint Committee. I want to use the opportunity also to consider the needs of

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family carers as well as those of the person who is dying. I want to emphasise that it is very important that carers are informed about the likely stages at the end of life and that they, too, are able to prepare for the death of a loved one. This includes ensuring that families are well informed when making decisions about where their loved one dies. It has been said by all noble Lords that most people wish to die at home. However, this can put extra pressure on carers, which should be discussed with them by health professionals. These health and care professionals may need further training to ensure that they are identifying and considering the needs of carers at the end of life.

More than 300 carers who have experienced the death of the person they cared for shared their experience as part of this year’s report for Carers Week, which is called Prepare to Care?. Nearly half said that they had not had time to plan about the death. One third of carers stated that they had not given this enough thought and wished that they had planned it better. As one carer said:

“Although you can be aware end of life is coming you have to balance this out with keeping up hope and being positive for the person you care for. Also you just don’t have the time to think ahead. With hindsight I can see that the signs that end of life for the people I was caring for was approaching, but as a carer in that situation at the time I could not see them. I wish the GP had spent some time with me to discuss these things”.

We must bear the carers in mind.

If I may, I would like to say a word about the aftermath for carers of the death of a loved one. Carers often become isolated as result of caring and find it very difficult to maintain social networks and hobbies. When caring comes to an end, so do the carer’s services. The carer is left without any social or emotional support. I never forget the carer who said to me, “I am expected to go from the graveside to the job centre”. Sometimes we expect that of carers. If we could support carers more, I think that more of them would be willing to be part of the team providing end-of-life care and thus gain the advantages which have been so clearly set out by noble Lords.

Lord Skelmersdale: My Lords, I failed to speak at Second Reading and I have failed to speak throughout the Committee stage. However, I believe that this amendment is very important, especially, as the noble Baroness, Lady Pitkeathley, said, the introductory subsection thereof. I emphasise that this is not a Second Reading speech. However, if I had spoken at Second Reading, I would have reminded my noble friend Lord Howe on the Front Bench of my long standing view that it will never really work until we have a combined health and social care budget. If we did have it, most of the amendment would be unnecessary.

Baroness Emerton: My Lords, I support the amendment proposed by the noble Lord, Lord Warner, and agree with what all the other speakers have said. I remind noble Lords that when care pathways were introduced by the previous Government end-of-life care was not a pathway. The noble Lord, Lord Darzi, listened to a group of hospice workers. They said that they very rarely saw a death in a surgical ward and that they believed that we should look at a care pathway for end of life. What has been said today indicates that we

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need to concentrate on bringing together health and social care, bringing together social workers and health staff and, above all, seeking the choice of patients. As has already been said, most patients wish to live in their own surroundings and the end-of-life care pathway would take care of not only the person whose life is ending but also the relatives and family around them. I suggest that we think about how we progress the care pathway for end of life.

Baroness Wheeler: My Lords, we on these Benches are grateful to my noble friend Lord Warner and the noble Lord, Lord Patel, for bringing forward these amendments which ensure that end-of-life care is discussed in the context of the Bill. The Government have confirmed to the Joint Committee that primary legislation is not required for the introduction of the proposed new palliative care funding system or free end-of-life care once the Bill is passed. It is right to seek up to date information on the progress of the end-of-life care pilots and the proposed timescale for the publication of the regulations and consultation, if the April 2015 deadline for any new systems is to be met.

The amendment of the noble Lord, Lord Patel, endorses the Joint Committee recommendation that assessment of the need for the care and support of an adult who is terminally ill should be treated as urgent by the local authority. We fully support that. As Marie Curie Cancer support says, people get stuck in hospital at the end of life because the system cannot move quickly enough to get a care package for alternative care in place. It is established good practice in some authorities to fast track assessment of people not covered by NHS continuing care. It is a very fundamental requirement for people who are terminally ill and should be a duty reinforced in the Bill.

There is also a strong argument for joining up access to social care and support with the DS1500 system for quick accessing of welfare benefits such as DLA, although it is recognised that some of the degenerative diseases such as motor neurone disease may not be easily dealt with in this way. Will the Minister advise the House of the Government’s view on this, and what work is being undertaken to ensure that benefits and the care and support system work in a more integrated way for terminally ill patients? It is now six years on from the introduction of the 2008 End of Life Care Strategy to help people have the end-of-life care and support they need, in the words of the Nuffield Trust,

“beyond the gates of the acute hospital setting”.

The strategy has made a vital contribution to increasing the profile within the NHS and social care of end-of-life care through such excellent programmes as the NHS End of Life Care, the Marie Curie Delivering Choice Programme and the 2009 Dying Matters campaign to tackle the taboo on discussing death and dying. However, as my noble friend has shown, progress on providing real choice for people to die in the place they want to, whether that is in their home, at a hospice, nursing home or in hospital, if that is where they can receive the best palliative and nursing care appropriate for their condition or personal circumstances, has been frustrating and disappointing.

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The current main focus of palliative and end-of-life care is still on cancer patients and hospices, but even then, Macmillan Cancer Support research shows that 91% of cancer patients in England who die in hospital wanted to die elsewhere, with 65% wanting to die in their own homes. Only 29% of people with cancer are able to be at home when they die. The amendment of my noble friend Lord Warner seeks to specify in the Bill that regulations may include the right for an NHS patient to die in the place they regard as home or their normal residence. As he readily acknowledges, this can be achieved only if end-of-life care is integrated across the NHS, local councils and hospices, and if it is properly funded. His case for an integrated service for free end-of-life care for terminally ill people who are likely to die within six months is a convincing one.

Macmillan’s research among health and social care professionals shows that 97% identify the lack of financial integration between the services as a key barrier to people receiving the care they need at the end of life. As the noble Baroness, Lady Jolly, reminded us, the Nuffield’s and other research projects point strongly to the cost-effectiveness and potential savings that could be achieved with greater access to social care and reduced hospital admissions at the end of life. The Nuffield research also found that the use of social care currently varies between local authorities and health conditions—for example, people with dementia, falls and stroke use considerably more social care in community settings than those with cancer, probably because that is where they are already being cared for before terminal illness has been diagnosed. Individuals with the highest social care costs tend to have lower average hospital costs.

We fully recognise how crucial the seven adult palliative care funding pilots are to mapping and understanding current patterns and resource use across health and social care at end of life, and to collecting the vital data from which the costs of an integrated end-of-life care system can be properly assessed. These data span across care provided by the NHS, voluntary and private sector in both acute and community settings. The final data analysis report for the adult pilots and the consortium pilot for children’s palliative care services is due in June 2014, and the Government are committed to introduce a new per patient funding system for palliative care by April 2015. Can the Minister update the House on the progress being made under the pilots, the emerging key themes and whether the timescale has been impacted by the recent transfer of responsibility to NHS England? I understand that there is a problem with progress and that the pilots have only recently been provided with guidance on social care data collection—for example, as regards where data are underdeveloped and will probably take longest to collect. Is the Minister confident that the timescale for pilot reports, evaluation, policy decision and consultation can be met in time for implementation and that the Government will make a decision on free end-of-life care by the end of this Parliament?

Finally, two further issues need to be added to the debate. First, my noble friend Lady Pitkeathley reminded us of the recent Carers UK Carers Week survey which shows that much more support is needed for carers to help them plan for the end-of-life care of the person

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for whom they are caring. Many do not know how to plan for the death of a loved one and how to look ahead to life when caring ends in terms of returning to or taking up work, making social contacts and managing financially. My noble friend was right to underline how crucial it is to get this support right.

Secondly, it is as well to remember the findings of last month’s report from Public Health England and Marie Curie Cancer Care on palliative and end-of-life care for black, Asian and minority groups in the UK. It is a timely reminder that, with black, Asian and BME groups aged 65 and over set to treble in the next 25 years, there is urgent need to address the reasons for their low levels of use of palliative and end-of-life care services. The report identifies major problems, including lack of knowledge about services, misunderstandings, mistrust and lack of cultural sensitivity on the part of service providers. How are the Government addressing this issue and including it in their work to assess future service needs and funding? Are the pilots collecting data on these vital issues?

6.45 pm

Earl Howe: My Lords, I thank the noble Lord, Lord Warner, for tabling these amendments which bring us to an important and sensitive set of issues. The Government have great sympathy with these concerns and I hope that I can reassure the Committee on them.

Amendment 105P would give the Secretary of State a power to introduce regulations for two specific but related issues—a right for NHS patients to die in the place that they regard as their home and an exemption from local authority charges for care and support for adults who are in the final six months of their lives. The Department of Health’s End of Life Care Strategy provides a blueprint for improving quality and choice in palliative and end-of-life care, and NHS England, which is now responsible for end-of-life care, is pressing on with its implementation, including aspects relating to the pathway to which the noble Baroness, Lady Emerton, referred.

We made a commitment in Liberating the NHS: Greater Choice and Control to move towards a national choice offer to support people’s preferences about how to have a good death. This is not an easy task and it cannot be done overnight. For example, commissioners need to be sure that the right services are available in the community to support people to be looked after at home. A lot of work is needed to make choice in end-of-life care a reality. We shall take all the evidence into account and review progress this year to see how close we are to being able to introduce a national offer on the choice to die at home. The noble Lord, Lord Warner, rightly pointed out that there are variations across the country as regards people’s ability to die in the place of their usual residence. I take that point completely. However, if we are to solve that disparity, it is important that we do not act prematurely. If an area is not ready to roll out a better system for palliative and end-of-life care, it will serve no one’s purposes, so we must take the necessary time to do this.

On the issue of palliative care funding, as the noble Lord is aware, in the Care andSupport White Paper, published in July 2012, we stated:

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“We think there is much merit in providing free health and social care in a fully integrated service at the end of life”.

This followed the report of the independent Palliative Care Funding Review in July 2011, after which the Government set up seven adult and one children’s palliative care funding pilots. The pilots are running for two years, with the aim of having a new funding system in place by 2015, a year sooner than the review proposed. From April 2013, we gave responsibility for this work to NHS England. We need to analyse the evidence from the pilots thoroughly before the details of the new funding system are finalised. Any changes to social care palliative care funding could be made by secondary legislation under Clause 14(1) in due course and will not require an amendment to the Bill.

My noble friend Lady Jolly referred to the cost savings in hospital admissions at the end of life and suggested that this might cover the cost of nursing care at home. This is a point made cogently by Marie Curie. The issue we need to bear in mind here is the readiness of the service to cope with sudden changes in services that an amendment would entail, so we still think that it is better to gather the evidence, as the pilots are now doing, and allow services to be properly planned for.

I turn to Amendment 105PA. The Bill allows local authorities to treat a person’s care and support needs as urgent, as set out in Clause 19(3). We believe that in end-of-life cases a person’s needs would be highly likely to be considered “urgent” and therefore should be fast-tracked so that needs are met as quickly as possible. We do not believe that the Bill should set out a list of urgent situations where a local authority can meet an adult’s needs without having yet carried out a needs or financial assessment, or made an eligibility determination. The problem is, as we have debated on many occasions in the past, that such a list could never be exhaustive and might suggest that only certain situations could be treated as urgent. Local authorities must have the flexibility to determine themselves which situations they consider to be urgent, depending on the facts of each individual case. The wording of Clause 19(3),

“which appear to it to be urgent”,

enables this. However, I can say that we intend to refer to end-of-life cases specifically in statutory guidance.

I can readily identify with the questions asked by the noble Baroness, Lady Pitkeathley, about carers and the need to support them after the death of the person they have been caring for and to make sure that they are informed about the stages at the end of life, the additional pressures that may be placed on them and the need to plan. The duty on a local authority to provide information and advice in Clause 4 very definitely includes information and advice relating to support for carers, including in these circumstances.

The noble Baroness, Lady Wheeler, asked about end-of-life care for BME groups in particular and the need to address the low use of palliative care services among those groups. She asked how we are addressing that. I shall write to the noble Baroness on that point, as I do not have information in front of me on whether the pilots are collecting those data specifically. However, I agree that it is a material issue. The noble

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Baroness also asked whether the palliative care funding pilots had been impacted by the transition to the new NHS system and whether we would meet the timescales. I can reassure her that the work of the pilots is on track.

I hope I have demonstrated that the Government are committed to offering patients the support to facilitate their dying at a place that they regard as their home, when the system is able to meet this commitment and where this is the person’s wish. I hope that the noble Lord, Lord Warner, will be sufficiently encouraged to withdraw his amendment.

Lord Warner: I am grateful to all noble Lords, across the Benches, who spoke in support of this amendment. I will, of course, consider carefully the noble Earl’s points in his constructive response. I will discuss them with my co-signatories and the voluntary sector. However, I want the noble Earl also to ponder something. The idea of giving people a right to die where they choose is one of the major social right breakthroughs. It is on a par with some of the other things that Parliament has spoken on and passed legislation about. In my view, it is more than about waiting for the bureaucracies to give their blessing that there is a state of readiness for this change to take place. This is an issue where the political parties and Parliament should show their willingness to press on as a top priority. I will certainly consider what the noble Earl has said, but I hope he will consider what I have said. We did not have everything ready when Parliament decided to ban smoking in public places and the workplace. It thought it was the right thing to do and it did it. This issue of people’s right to choose where to die is in the category where Parliament should say, “It is the right thing to do and we are going to get Governments to do it”.

I may be wrong. The Government may bring forward these changes in good order. But I take a different view from the noble Earl about the issue of local variation. They need to put a marker in legislation to make jolly sure that those parts of the country actually deliver the goods on a similar timescale to everybody else. I do not think that we could rely on strong messages from NHS England necessarily to deliver that. In the meantime, I will consider carefully and I beg leave to withdraw my amendment.

Amendment 105PA (to Amendment 105P) withdrawn.

Amendment 105P withdrawn.

Clause 71 : Guidance

Amendment 105Q not moved.

Clause 71 agreed.

Clause 72 : Delegation of local authority functions

Amendment 105R not moved.

Clause 72 agreed.

29 July 2013 : Column 1602

Amendment 105S

Moved by Lord Warner

105S: After Clause 72, insert the following new Clause—

“Employment practices

(1) Where the Secretary of State has evidence that employment and payment practices used by service providers of adult social care are not consistent with the well being requirements in section 1, he may, after consultation, direct the cessation of such practices by making regulations.

(2) Such regulations may provide for financial penalties in respect of continued use of prohibited practices.”

Lord Warner: My Lords I will not detain the House long on this amendment. It gives the Secretary of State a regulation-making power to ban employment practices in the care sector that are inconsistent with the well-being principle in the Bill and to impose financial penalties for continued use of prohibited practices.

We all know about the practice that has grown up in recent times of 15-minute home visits to frail and vulnerable people, where the care-giver is not paid for travel time and is pressurised to fit more visits into a day than is reasonable. Practices of this kind are an affront to the care sector and it is a disgrace that any public agency should have been willing to collude in it, whatever the financial pressures. It is bad for the recipient, bad for the care-giver and bad for the reputation of all the agencies involved. It is, however, the kind of practice that can creep into low-wage sectors where a workforce is vulnerable to poor employment practices. It is what I call the “Morecambe Bay cockle-pickers syndrome”.

The front page of the Guardian today has an example from another sector, with its story of Sports Direct’s zero-hours employment contracts for part-time workers. These contracts, which appear to go to 90% of the company’s 23,000 employees, mean staff do not know how many hours they will work from one week to the next, giving them no guarantee of regular work, as well as no sick pay or paid holiday. I would not want to take a bet that somewhere in the care sector there is not an equivalent to Sports Direct.

The care sector is inevitably likely to continue to have relatively low-paid jobs and be vulnerable to entry by unscrupulous employers. Those giving care need to be more fairly paid and better trained, and to become a more reliable workforce that is able to spend enough time with those needing care, without cutting corners in the care they give. Experience so far suggests that we cannot always rely on commissioners of care to do the right thing. They need a bit of buttressing.

My amendment gives a power to the Secretary of State to intervene when there is evidence to suggest that intervention is necessary, and provides the back-up of financial penalties should a bad employer prove obdurate. The presence of the new clause would also be a deterrent to bad behaviour. If we are serious about safeguarding the vulnerable, we need a provision of this kind in the Bill’s armoury. I beg to move.

7 pm

Lord Hunt of Kings Heath: My Lords, very briefly, I support my noble friend. In a sense, we have already had two debates on the employment practices of providers that are contracted by the local authority. The first

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was on Clause 5, regarding the local authority’s market-making role. We have also discussed under Clause 80 whether the Government, through regulations, will ensure that the CQC’s oversight of local authorities’ commissioning will be treated as a major priority.

The challenge for us on Report will be to deal with this issue by bringing it all together. There is no doubt that there is real concern about the employment practices of a number of companies that work in the adult social care sector and the lack of monitoring by local authorities in their commissioning. One way or another, the Bill will be very much enhanced if we can get to grips with this problem of poor employment practice. I have no doubt whatever that the general use of zero-hours contracts and the fact that those workers who are often low-paid have to pay the cost of travel themselves and are not paid for the time they take to travel from client to client leads inevitably to an impact on the quality of care, however worthy those people are. We will have a great opportunity on Report to do something about it and we will do so.

Earl Howe: My Lords, these are indeed serious issues and I am grateful to the noble Lord, Lord Warner, for raising them. Those who work directly providing care and support play a vital role in helping and supporting vulnerable people. Organisations that provide care must do all that they can to make sure that their workforce provides compassionate care and that people are treated with dignity, consistent with well-being principles.

Although the majority of care and support provided is good, I am aware that in some cases the practice of both providers and commissioners of care risks a negative impact on the well-being of those cared for. For example, the recent report of the Low Pay Commission has warned of lack of compliance with the national minimum wage, such as by not paying for travelling time between appointments. I am also aware that some local authorities’ contracts with care providers may lead to inappropriate practices, such as very short visits.

I agree entirely with the noble Lord’s intent to see a move away from such practices, which can undermine well-being, independence and dignity, as well as disempower those responsible for providing care and support. The question is how to do that. I believe that addressing these issues requires a broad range of approaches, some of which are already included in the Bill, but I am doubtful that further legislation is appropriate.

The terms and conditions of care and support workers, including pay, are set by employers within the existing requirements of employment legislation, with the same enforcement through HM Revenue and Customs, penalties and sanctions as in other sectors. All providers must, of course, pay at least the national minimum wage. This is law, and failure to meet the requirement is never acceptable. However, the law need not be repeated in the Bill or, indeed, in separate regulations that effectively duplicate those that we already have.

Where care and support is funded by the state, it is allocated through local authorities, which must ensure that the providers they commission from offer good

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value for money and a high-quality service. Clause 5 establishes a new duty on local authorities to promote a sustainable, diverse and high-quality market for care and support in their area, and is clear that an authority’s own commissioning practices must be in line with this duty. The Department of Health is working with the Association of Directors of Adult Social Services, the Think Local, Act Personal partnership and local authorities to embed this duty and improve commissioning generally.

We are providing firm leadership in this area. The Minister of State for Care Services, my colleague Norman Lamb, recently announced a home care challenge, whereby we will work with the sector to generate new ideas around improving quality in home care services and local authority commissioning. The department is also offering support to local authorities to develop their market-shaping capacity, and encourage high-quality provision and an understanding of market capacity and capabilities.

I am sure that the noble Lord, Lord Warner, will appreciate, without my needing to say this, that wages and associated employment practices are not the only determinant of service quality and a range of factors affect care workers having the right attitude, values and skills. The Department of Health is working on a number of initiatives with partners to develop a code of conduct and a recommended minimum training standard. Further work includes supporting workforce training through a workforce development fund and working with Skills for Care and the National Skills Academy for Social Care to improve the capability and skills of care workers. For the first time, this will now include support and training for personal assistants as well as people working for more formal providers. The department is also working with Skills for Care to develop a sector compact to promote culture change and skills development in the sector.

More broadly, through registration and monitoring, the Care Quality Commission enforces standards in this sector. The CQC requires that employers ensure that staff are well managed and have the opportunity to develop and improve their skills. Once services are registered, the CQC continues to monitor and inspect them against essential standards.

Lord Hunt of Kings Heath: I have never really been able to tempt the noble Earl to comment on the priority to be given by the CQC to the role of the providers and the responsibilities of local authorities in commissioning services. Can I tempt him to say more? Clause 80 clearly states:

“The Commission must, in respect of such English local authorities as may be prescribed … conduct reviews of the provision of such adult social services provided or commissioned by the authorities”.

Would the Government be willing to say to the CQC, “We will prescribe regulations that make it clear that this will indeed be a priority”? I have long felt that the way to deal with this is through the CQC’s own monitoring of how local authorities commission those services. It would be a way through if the Government were prepared to say that. The more I listen to our debates, the more I begin to think that this ought to be, of all the things that the CQC does, its number one priority.

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Lord Warner: Supplementary to that, my simple view of the world is that if the situation is so bad, the CQC ought to be able to deregister someone who persistently engages in these kinds of employment practices. Do the Government share that view?

Earl Howe: My Lords, I am the first to agree that these are very important issues. I cannot do justice to explaining where we are with them at the moment and I ask both noble Lords for their indulgence. I will write to both of them and provide more information on this subject.

I was referring to the role of the CQC, which has the power to act in response to any concerns and to take enforcement action where services are failing people. Failure to comply with the requirements is an offence and, under the Health and Social Care Act 2008, CQC has a wide range of enforcement powers that it can use if the provider is not compliant. These range from issuing a warning notice and fines through to cancelling a provider’s registration. The new Chief Inspector of Adult Social Care will be in post from October and will provide additional focus on quality issues in care and support.

I repeat my reassurance to the noble Lord, Lord Warner, that the Government fully agree with the intention behind the amendment—that employment standards and workforce issues are fundamental to quality care—but I hope I have demonstrated that there is a wide range of activity bearing down on poor practice and that the variety of existing law and other non-statutory approaches mean that further legislation is not required. I hope the noble Lord will feel reassured enough to withdraw the amendment on that basis.

Lord Warner: I am grateful to the noble Earl for his reassurances. However, like my noble friend Lord Hunt, I am still uneasy about the extent to which there is, if I may put it this way, a clunking fist that could be used to stop such practices in their tracks, possibly by the regulator.

It would be helpful if before Report we could meet, perhaps with David Behan or someone from the CQC, to satisfy ourselves that, possibly by using guidance and advice from the department to the CQC, enough priority will be given to this issue and systems will be put in place to take action swiftly when concerns are raised. However, in light of the possibility of further discussions, I beg leave to withdraw the amendment.

Amendment 105S withdrawn.

Clause 73 agreed.

Amendment 105SA

Moved by Baroness Deech

105SA: Before Clause 107, insert the following new Clause—

“Unpaid carers and co-dependants: financial rights and obligations

(1) The Secretary of State must arrange for a review of the legal and financial rights and obligations of—

(a) unpaid carers and those they care for, and

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(b) co-dependant family members who share a house,

and who in the case of paragraphs (a) and (b) are adults within the prohibited degrees of marriage and who have lived together in the same household for a period of at least five years.

(2) The review referred to in subsection (1) shall be for the purpose of considering the creation of a legal status that is non discriminatory and the review shall include rights and obligations arising on the death of one of the adults included in subsection (1)(a) and (b).

(3) The Secretary of State shall report to Parliament on the outcome of the review and the arrangements made by the Secretary of State must provide for the review to begin as soon as practicable and include a full public consultation.”

Baroness Deech: My Lords, I return once again to the treatment, during life and at death, of elderly siblings or close family members who have lived together for years but whose position vis-à-vis each other and the state is fragile. Noble Lords may recall that I addressed this issue twice during the passage of the Marriage (Same Sex Couples) Act and that I have spoken about it on several occasions in debates. You wait for years for the right Bill to turn up and then two come along together.

In 2004, the House agreed to an amendment that would have extended civil partnerships to family members in view of the financial disadvantage they suffer under inheritance tax, but not only inheritance tax. Civil partnership structures may have been overkill, yet the Government acknowledged the importance of the issue even though the amendment was overturned in the other place. Still nothing has been done. I have tried to persuade the House more than once to take heed of the unfair way in which carers and siblings are treated in our law—indeed, they perceive themselves as being treated unfairly—compared with those in a sexual relationship.

In the course of the Civil Partnership Bill 2004, some Members of this House said that it was not the Bill through which to right an injustice. During the passage of the Marriage (Same Sex Couples) Bill the same argument was made. However, where there is a wrong we should hasten to take the opportunity to remedy it without resorting to technical or process arguments.

The unfairness has increased. Every adult in this country can now marry or enter a civil partnership, for whatever reason, with concomitant legal advantages. Only family members cannot benefit. Today I received a letter from two such people. They live together in their family home—one is divorced, the other never married—and when the surviving parent died six years ago they paid a great deal of inheritance tax. They feel that the current law treats them unfairly and fear that the son, who will inherit from both of them, will again have to pay a vast amount of tax. They say there is nothing they can do about this. Cohabiting couples can choose to marry and thus benefit; and same-sex couples can marry or enter a civil partnership. However, because they are blood relations there is nothing that they can do.

7.15 pm

The case which started me on this particular campaign is well known: it is that of Misses Joyce and Sybil Burden, sisters, who are now over 90 and, as far

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as I know, still alive. They have lived together for about 85 years. They cared for their parents and two aunts to the end and did not allow them to go into a home. In 2008, the inheritance tax on the death of the first sister—not that she has died—was estimated at £120,000. It may now be more if the value of their house has risen.

The European Court of Human Rights held that there was discriminatory treatment of the sisters but that the UK had a wide margin of appreciation afforded to it and could treat benefits differently, according to status, in pursuit of the aim of promoting stable relationships by providing the survivor with, inter alia, financial security on the death of a spouse or partner. The Government want to bolster stable relationships. Those relationships should not have to be heterosexual or involve sex or procreation. If they are stable, loving and committed they deserve recognition, a theme that has run through the debate on this Bill.

Any two family members or carers who stay together for decades as an act of self-determination and personal development are a recognisable and welcome unit. Treating them with respect and giving them some of the benefits that married people enjoy might save the state costs that might otherwise be involved in taking care of them and giving them benefits because when one of them dies the other may have to pay so much inheritance tax that they sell the home and have to go into state care.

Article 14 of the European Convention on Human Rights forbids discrimination in rights that are granted on the grounds, inter alia, of birth or other status. My amendment calls for no more than a review of the situation of family members, not only in relation to tax but to occupation rights, parental rights, pensions, medical issues and all the relevant rights and obligations that other people who are in a recognised relationship have.

The people I am talking about do not have the choice or the freedom to enter into a formal relationship. Their contracts may not be recognised by the courts. The sisters who have written to me say that they have tried every way to avoid the burden of inheritance tax that is likely to fall on them with devastating consequences. Inheritance tax is a small matter in the global view of things. It is paid by fewer than 3% of the population and, on the figures I saw most recently, raises less than £3 billion per annum for the Government.

If a review recommended help for family members, it would be cost free in relation to inheritance tax because I am only suggesting a deferral of that tax until the death of the survivor. My amendment proposes a review of the legal support that ought to be available to the thousands—very often women—who have lived together in a household for many years and to carers who are family members. Where a younger one has cared for an older one but is overlooked in the will of the older one, despite years of selfless sacrifice, the younger carer may find herself homeless and penniless. I grew up next door to such a situation where an unmarried daughter—in those days referred to as an old maid—spent decades looking after her parents and when they died her widowed sister moved in with her, again for a long period. I am sure we all know

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such situations where people deserve thanks, recognition and support and not to have a sword hanging over their heads for fear of having to sell up and move when they are very old.

This Bill presents the opportunity to recognise and assist the army of carers and siblings who have done their duty to their families, and did not shift the burden onto the state or the taxpayer. My amendment is crafted to encompass only the position of that category of people who cannot marry or enter into a civil partnership which would give them those advantages—namely, people within the prohibited degrees: grandparents, parents, children, aunts and uncles, nephews and nieces. We all know just such situations, where care and codependency have grown up over the years, and I hope that the Government will look at that situation. I beg to move.

Baroness Hooper: My Lords, I need only add very little to the case proposed by the noble Baroness. In the interests of fairness and equality in relationships, whatever the relationship, this is worthy of consideration. I emphasise that the noble Baroness has talked about a review. There are of course a lot of practical details which could affect this situation which would have to be worked out, but the important thing is that this type of relationship should have the same sort of consideration as has been given to others.

Baroness Barker: My Lords, I return to this subject yet again, having discussed it every time it has come before your Lordships’ House. I take a very different view of this proposal not because I wish in any way to denigrate people who care, but because a fundamental flaw and a serious danger lurk within it. Let us remember that it originally came from organisations such as the Christian Institute, as part of its continuing campaign against civil partnerships and same-sex marriage. It is not a proposal which emanated from the carers’ movement. I have spent 15 years in this House discussing various pieces of legislation which apply to carers. This did not arise. This has never arisen from the carers. It is very much part of a different campaign.

The proposal equates two fundamentally different sorts of relationship: those entered into freely and voluntarily as adults, and consanguine, family relationships. Those two types of relationship have always been treated differently in law, for very good reason. You cannot choose your family, you are born into it. You have relationships with people in that family which are wholly different, and your obligations to those people are wholly different, from those in the families which you create. That is why you do it. Also, you cannot leave a family into which you are born in the same way that you can divorce a partner to whom you are married.

That is important because behind this lie two key questions. First, if there are several siblings, how do you choose which two people enter into the relationship and benefit? Secondly and more importantly—the question which the noble Baroness, Lady Deech, has not answered although the noble Baroness, Lady Howarth, and I have put it every time this issue has arisen—how do you stop weaker members of the family being put

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under duress and compelled to protect the family property by stronger ones? Within that lies the potential for gross and horrible abuse.

I understand that the noble Baroness, Lady Deech, has weakened her proposal this time by asking for no more than a review. If there is a review and report which does not address that issue, it will have done the citizens of this country a disservice. I hope that at that stage, if not now, we can put an end to this campaign.

Carers already have recognition in ways that matter. We have carer’s allowance. We have attendance allowance. We have all sorts of things which recognise the particular status of carers without tying them into relationships around property which are very difficult to disentangle. If this is a way of dealing with the inequities of inheritance tax, so be it, but it is one containing dangers which should be appreciated before we go ahead with it.

Baroness Northover: My Lords, I thank the noble Baroness, Lady Deech, for tabling this amendment. This would place a duty on the Secretary of State to arrange a review of legal and financial rights and obligations of adult carers, adults they care for and codependent adult family members who share a house, with a view to considering the establishment of a specific legal status for such people that would include rights and obligations arising at death of one of the adults concerned.

The noble Baroness, Lady Deech, and my noble friend Lady Hooper emphasised the human side of this challenge, and of course one sympathises with the cases that they mention. Noble Lords will remember that we had an extensive debate recently on these issues both for the Marriage (Same Sex Couples) Bill, and in 2004 for the Civil Partnership Bill, as my noble friend Lady Barker has set out. In the recent debate, the noble Baroness, Lady Deech, sought to include carers and cohabitees in the proposed review of civil partnerships. We had some debate then about the Government’s support for carers. The point was also made that this was in essence a tax point.

I note that during the debate we recently had, the noble Baroness, Lady Deech, said that, having studied the Care Bill, she had not seen in it a hook on which to hang such a review. We believe that interpretation was correct. Such a review would be enormously complex and range much further than the provision of care and support.

As the noble Baroness, Lady Hollis, stated in Committee on the Marriage (Same Sex Couples) Bill, inheritance advantages on death would need to be balanced by responsibilities and financial dependencies during lifetime. There would need to be a fundamental root and branch review of social security and pensions policy and the provision of means-tested benefits, as well as a review of rights and obligations on death. Such questions about legal rights and responsibilities, arising from specific family relationships and friendships, are not related to the subject matter of the Care Bill. Nor do they fall within the responsibilities of the Secretary of State for Health. Indeed, Carers UK has said that forming some kind of formal legal relationship between a carer and the person they care for is not the

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right way to solve the challenges that carers currently face, a point that my noble friend Lady Barker has emphasised.

Parents, children and siblings already have a legally recognised relationship to each other that affords certain rights—for example, in the laws of intestacy. The Government, of course, value the contribution of carers in supporting family members and friends, recognising that they may often be caring for many years. That is why the Care Bill provides for significant improvements for carers in terms of offering them support in their caring role and in having a life of their own alongside caring. The noble Baroness, Lady Pitkeathley, in Committee on 3 July, said of the attention given to carers in the Bill:

“In the history of the carers’ movement, with which I have been associated for nearly 30 years, it is truly the most significant development that we have seen”.—[Official Report, 3/7/13; col. 1311.]

She said today that it is all she could have dreamed of in terms of the rights of carers. The noble Baroness, Lady Greengross, said that it is one of the best Bills we have seen in a long time. New and simplified assessment procedures will focus on the impact of caring on individual carers and families, on how to support carers to look after their own health and well-being and on the outcomes carers wish to achieve in their day-to-day life, including employment.

We also intend to provide carers with similar rights to support as those for whom they care. This new duty has been warmly welcomed as providing parity of esteem with those who need care and support. They will, of course, benefit from other provisions within the Bill, including the provisions that a local authority must promote an individual’s well-being in all decisions made with and about them and the requirements on what local authority information and advice services should include so that people understand how the care and support system works, what services are available locally, and how to access those services. The cap on eligible care costs will help to reassure everyone that they have a level of protection if they or members of their family have the most serious needs and incur very high care costs. I hope that I have reassured the noble Baroness of our support for carers.

7.30 pm

As for the issues in this amendment, the UK’s progressive personal tax system is based on the principle of independent taxation whereby individuals rather than families contribute to the cost of providing public services based on their ability to pay. In contrast, the UK’s family-based welfare system helps people to move into and progress in work while supporting the most vulnerable families on the basis of need. The tax system does not reflect individuals’ personal or family circumstances because it does not need to. The welfare system does that by providing support based on need, which encompasses family circumstances and caring needs. That allows the tax system to focus on raising the revenue that is necessary to fund public services and welfare support in a more cost-efficient way while ensuring that individuals feel they are contributing to public services by paying taxes.

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All estates benefit from the inheritance tax threshold of £325,000, which can be left to any beneficiary free of IHT. When combined with other relief, this means that fewer than 4% of estates left on death pay any IHT at all, while two-thirds of all IHT is paid by those estates worth more than £1 million. The inheritance tax system provides for individuals to gift substantial amounts—for example, shares in property—to others, including family members or carers. As long as no strings are attached to the gift, and the recipients survive for seven years after the gift is made, there would be no inheritance tax consequences. In doing that, the donor reduces both the potential value of their taxable estate in the case of their death and the possibility that their remaining assets will exceed the inheritance tax threshold and give rise to an inheritance tax liability when they die. Of course there are cases where inheritance tax is still payable. In those cases, we are really talking about the wealthy few with assets worth several times the average UK house price of £238,000.

I respect the wish of the noble Baroness to care for those who care for others. However, I hope she can see that she was in fact right when she said that the Care Bill was not the vehicle that she was seeking. I hope that she will accept that what she proposes would require a root-and-branch review of the whole tax and welfare system and that the Government and society show no sign of being persuaded that this is the right route to go down. Although the noble Baroness will be disappointed, I hope that noble Lords will accept that the Care Bill offers much in support of carers and that the noble Baroness will be content to withdraw her amendment.

Baroness Deech: My Lords, we start from the position that the European Court of Human Rights found that the situation was discriminatory. As far as I am concerned, it has nothing to do with the Christian Institute or attacks on civil partnership. I have nothing to do with the Christian Institute. I got interested in the Burden sisters’ case because two of my former students were their barristers and the two ladies wrote to me. I then remembered all the other situations that I knew about.

This is not a question of forcing a relationship on anyone. We all know of situations where two people choose to live together: no one has forced them to and either of them could have moved out years ago. There are many of these situations around the country. Two family members have lived together voluntarily and feel slighted when death and other difficult legal situations pop up and there is no proper law for them. That is why I said in my amendment that I was referring to adults who have lived together for five years—I could easily have said 20 years and it would have come to the same thing. I am no longer pushing for a relationship because that has been seen by many in the House to be inappropriate. However, I think it would be heart-warming to those who have written to me and taken an interest in this if the House were to be a bit more generous-spirited towards people who find themselves in this situation. It is a question of equality in a situation where the European court did find that there was discrimination.

People are not tied to each other in such a way that one might take advantage of inheritance tax relief—they have chosen to live together and would expect a hand

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of equality to be offered to them. The noble Baroness, Lady Northover, pointed out that only a very small number of people pay inheritance tax. The other side of the coin is that, if there were some generosity, for example towards siblings in this situation, a very small number would be affected. As far as I understand it, avoiding inheritance tax is rather more complicated than the noble Baroness has indicated. It takes quite some confidence to start making gifts when you think that you only have seven years to go. As far as I know, if you carry on living in the house, it could hardly be regarded as a gift that you have handed over to someone else; you would have to move out to make it plain that it was a gift.

I hope that between now and Report, the Government would at least give some indication that they will look at inheritance tax in the situation that I have described. Otherwise I might well choose to come back to this in the interests of those who have written to me and who feel that they do not get the same generous treatment on death as others. In the mean time, I beg leave to withdraw my amendment.

Baroness Barker: Before the noble Baroness does that, I would just make a point of fact. If people make arrangements in respect of their property for the purposes of minimising their inheritance tax, they do not have to move out. That is a matter of fact—they can continue to live in the property. I would not like people watching our debate to take what the noble Baroness has said as fact. I believe that she is wrong.

A noble Baroness: They have to pay rent.

Baroness Barker: But they do not have to move out.

Amendment 105SA withdrawn.

Clauses 107 and 108 agreed.

Clause 109 : Regulations and orders

Amendments 105T to 105W

Moved by Earl Howe

105T: Clause 109, page 88, line 23, at end insert—

“(ca) regulations under section 22(2)(b) (services or facilities which a local authority may not provide or arrange);”

105U: Clause 109, page 88, line 24, after “35(9)” insert “or (Alternative financial arrangements)(3)”

105V: Clause 109, page 88, line 26, at end insert—

“(da) the first regulations under section 49(10) (meaning of “business failure”);

(db) the first regulations under section 50(1) (criteria for application of market oversight regime);

(dc) the first regulations under section 50(4) (disapplication of market oversight regime in particular cases);

(dd) the first regulations under section 59(2) (exercise of power to meet child’s carer’s needs for support);”

105W: Clause 109, page 89, line 15, at end insert “and the Department for Health, Social Services and Public Safety in Northern Ireland”

Amendments 105T to 105W agreed.

Clause 109, as amended, agreed.

Clause 110 agreed.

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Clause 111 : Commencement

Amendment 106 had been withdrawn from the Marshalled List.

Amendments 106A to 106C

Moved by Earl Howe

106A: Clause 111, page 89, line 39, leave out “48” and insert “(Temporary duty on local authority in Wales)”

106B: Clause 111, page 89, line 40, leave out from “force,” to first “the” in line 41

106C: Clause 111, page 89, line 42, at end insert—

“( ) Before making an order under this section bringing section (Temporary duty on Health and Social Care trust in Northern Ireland) (provider failure: temporary duty on Health and Social Care trusts in cross-border cases) into force, the Secretary of State must obtain the consent of the Department for Health, Social Services and Public Safety in Northern Ireland.”

Amendments 106A to 106C agreed.

Amendment 107 not moved.

Clause 111, as amended, agreed.

Clause 112 : Extent and application

Amendment 108

Moved by Earl Howe

108: Clause 112, page 90, line 7, at end insert—

“( ) sections (Section 47: cross-border cases), (Temporary duty on local authority in Wales), (Temporary duty on Health and Social Care trust in Northern Ireland) and 49 (provider failure: temporary duty in relation to cross-border cases);”

Amendment 108 agreed.

Clause 112, as amended, agreed.

Clause 113 agreed.

House resumed.

Bill reported with amendments.

Civil Procedure (Amendment No. 5) Rules 2013

Civil Procedure (Amendment No. 5) Rules 20137th Report from the Joint Committee on Statutory Instruments

Motion to Approve

7.40 pm

Moved by Lord Wallace of Tankerness

That the rules laid before the House on 27 June be approved.

Relevant document: 7th Report from the Joint Committee on Statutory Instruments

The Advocate-General for Scotland (Lord Wallace of Tankerness): My Lords, I beg to move that the Civil Procedure (Amendment No. 5) Rules 2013 and the Rules of the Court of Judicature (Northern Ireland) (Amendment) 2013 be approved. The Civil Procedure (Amendment No. 5) Rules 2013 amend the Civil Procedure

29 July 2013 : Column 1614

Rules 1998 to make provision for closed material procedures in civil proceedings in England and Wales pursuant to the provisions of Part 2 of the Justice and Security Act 2013. The Rules of the Court of Judicature (Northern Ireland) (Amendment) 2013 similarly amend the rules of the Court of Judicature to make provision for CMPs in civil proceedings in Northern Ireland brought in under the same Act.

I am sure that many of your Lordships present will be very familiar with the background to these rules: the provisions of Part 2 of the Justice and Security Act, which were debated thoroughly and considerably in your Lordships’ House, but perhaps I may set the context. Part 2 of the Act makes provision establishing a closed material proceedings regime for civil proceedings in the High Court, the Court of Appeal, the Court of Session, and the Supreme Court. CMPs allow national security-sensitive material which is held by a party and relevant to the proceedings to be taken into account through its disclosure to the court and a special advocate representing the interests of the other party. The other party cannot themselves see the material.

It is worth reiterating at the outset that CMPs will be available only in civil proceedings—cases where someone is suing or challenging the actions or decisions of the Government. They will not be available for inquests or for criminal trials and will not allow a person to be found guilty of a crime without knowing the evidence against him or her.

A CMP will be available in relation to any proceedings only if the court makes a declaration that the proceedings are ones in which it should be possible to apply to disclose material by way of a CMP. This can happen only if the court is satisfied not only that the material in question is relevant and that its disclosure would be damaging to the interests of national security but that it would be in the interests of the fair and effective administration of justice for a CMP to be available in principle in those proceedings. In cases where the availability of CMP has been requested by the Secretary of State, the court must also be content that he or she has first considered a claim for public interest immunity in respect of the sensitive material in issue.

If those tests are met, the court may—but, equally, may not—grant a CMP declaration which establishes the principle that closed proceedings may be used in the relevant parts of the case where sensitive material would be in issue. Of course, a special advocate will already have been appointed to represent the interests of the other party. The party holding the sensitive material must then apply again for individual pieces of material to be held in closed proceedings and, in each instance, the judge must decide whether or not the disclosure of the material would damage national security. If not, it is heard in open proceedings; and, if it would and should be heard in closed proceedings, whether it may be summarised by a gist disclosed in open—that is, to all parties to the litigation.

Once that stage—known as pre-trial disclosure—is complete, the judge must review the original declaration to ensure that the tests are still met. If not, he must revoke the declaration. Indeed, the judge may revoke the declaration at any point if he or she considers that it is no longer in the interests of the fair and effective administration of justice.

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Turning to the specific rules, the rules before your Lordships’ House this evening insert a new Part 82 in respect of England and Wales into the Civil Procedure Rules and make consequential amendments and modifications.

Section I of Part 82 contains rules about the scope, interpretation and application of the part. Rule 82.2 modifies the overriding objective of the Civil Procedure Rules for the purposes of Part 82 by placing a duty on the court to ensure that information is not disclosed where such disclosure would be damaging to the interests of national security and by requiring that the overriding objective be read and given effect in a way which is compatible with that duty.

The overriding objective continues to apply, so the court must still further the objective of dealing with the case justly, but it must also ensure in doing so that information is not disclosed where such disclosure would be damaging to the interests of national security. That, and the rest of Part 82, is, moreover, subject to Section 14(2) of the 2013 Act or in rules made by virtue of them is to be read as requiring the court to act in a manner inconsistent with Article 6 of the European Convention on Human Rights.

A recent briefing published by Justice on the rules appears to suggest that new Rule 82 provides for the overriding objective and other provisions of the Civil Procedure Rules to be set aside. This is not the case. The overriding objective of the Civil Procedure Rules is still applicable, and is still the objective of,

“enabling the court to deal with cases justly”,

and, since the amendments made pursuant to Lord Justice Jackson’s recommendations, “at proportionate cost”. The court is still enjoined to deal with cases justly, subject to new Rule 82.2. It is not enjoined to ensure non-disclosure at the expense of dealing with the case justly.

7.45 pm

The Justice briefing also appears to suggest that the rules somehow override or displace the provisions of the statute under which they are made. Again, that is not nor can it be the case. The rules must be read in conjunction with the primary legislation from which they flow, and cannot override that primary legislation. Section 11(4)(a) of the Act provides that,

“proceedings on, or in relation to, an application for a declaration under section 6”,

are to be treated as Section VI proceedings for the purposes of Sections 8 to 14. Section 8(1)(c) provides that rules of court must secure,

“that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be damaging to the interests of national security”.

Rules of Court in relation to proceedings on, or in relation to an application for, a declaration under Section VI must accordingly so secure.

It is important to point out that that does not displace the requirements of Sections 6(3) to (5), which provide that the court may make a Section VI declaration if the condition in both Section 6(4) and Section 6(5) are met. The condition in Section 6(5) is,

“that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration”,

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and that is accordingly a precondition for the making of a declaration. The treating of the application for the declaration as Section 6 proceedings secures that sensitive material at issue in the application for the declaration is not disclosed contrary to the interests of national security; but it does not secure that the second condition does not have to be met. It is also worth remembering that the court can revoke a declaration at any point if it believes that it is no longer in the interests of the fair and effective administration of justice. Those provisions in Section 7 changed the architecture of the legislation following amendments passed in your Lordships’ House, reflecting concerns of the Joint Committee on Human Rights. They were considered by the Government and the new architecture was brought in when the Bill was in the other place.

Section II of Part 82 contains general provisions applying to all proceedings to which Part 82 applies. These include provision for hearings, including the circumstances in which the court is to conduct closed hearings. Any person who intends to make an application under Section 6(2) must inform the other parties to the relevant civil proceedings. That is to ensure that all parties to litigation will know whether or not a CMP applies: under the Act, the fact of a CMP can never be a secret. It applies to closed judgments or closed parts of judgments, if it is not possible for the court to give reasons without disclosing information in a way that would be damaging to the interests of national security.

Section III of Part 82 contains rules about the making and consideration of an application for a declaration that the proceedings are proceedings in which a closed material application may be made to the court—in other words, a Section 6 application. They include the following.

Any person who intends to make an application under Section 6(2) must serve written notice of that intention on the court and on every other party to the relevant civil proceedings and—if the Secretary of State is not a party—on the Secretary of State him or herself, within 14 days. That is to ensure that no CMP under the Act can be held without notice. Notification of the Secretary of State, when not a party to proceedings, is required to allow for circumstances in which the Government have no direct involvement in the case but need to be engaged in view of their responsibility for national security; for instance, an internal dispute involving a defence contractor. The applicant must provide a statement of reasons to support the application, any additional written submissions and the material in relation to which the court is asked to find that the first condition in Section 6 of the Act is met.

Where the applicant is the Secretary of State, the application must also provide the Secretary of State’s written reasons for not making, or not advising another person to make, a claim for public interest immunity in relation to the material on which the application would be based in accordance with Section 6(7).

Section IV of Part 82 contains rules about the review and revocation of declarations made under Section 6 of the Act. If a court considers that a Section 6 declaration is no longer in the interests of the fair and effective administration of justice in the proceedings it must notify the parties, the Secretary of

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State, if not a party, and the special advocate who is conducting a review of the declaration made under Section 6 and invite them to make submissions within 28 days. The court must then give directions regarding a hearing to determine the outcome or determine the issue without a hearing. Similar steps must be followed in the case of an application for revocation of declaration, as opposed to the court considering revocation of its own motion.

Section V of Part 82 contains a rule about the making and consideration of an application under Section 18 of the 2013 Act to have set aside a certificate under Section 17(3)(e) of the Act; that is, certifying that the Secretary of State considers that it would be contrary to the interests of national security, or the interests of the international relations of the United Kingdom, for a person to be ordered to disclose material pursuant to the Norwich Pharmacal jurisdiction or any similar non-statutory disclosure jurisdiction of the court. Section VI makes provision in relation to the Court of Appeal.

Your Lordships will see that the draft rules for Northern Ireland are very similar to those for England and Wales, with minor drafting changes to take account of variations in terminology and some other minor differences. Neither set of rules will apply to the Supreme Court. Separate rules will be brought forward for this purpose.

As required by the Act, both sets of draft rules were also subject to consultation with the Lord Chief Justice of England and Wales and the Lord Chief Justice of Northern Ireland. In addition, the Government placed a version of the draft rules in the Library of this House on 11 June. I wrote to a wide range of Members of your Lordships’ House who had played an active part in the passage of the Bill to notify them of this. We also shared a draft on 3 June with the special advocates, who subsequently declined to provide formal comments. Neither of these were statutory requirements or common procedure in relation to secondary legislation of this type.

The rules were also shared in draft with the Joint Committee on Statutory Instruments, which did not subsequently draw them to the special attention of either House, and the Secondary Legislation Scrutiny Committee, which, again, did not draw them to the special attention of the House, although it mentioned the Justice briefing on the England and Wales rules in its eighth report. In view of this, we believe it is not correct to assert, as Justice has done, that these rules were,

“hastily thrown together … with little consultation”.

In conclusion, the rules before us today will sit alongside the Justice and Security Act to provide a framework to ensure that allegations which are made against the Government are fully investigated and scrutinised by the courts, while addressing the potentially severe implications for national security that could arise if sensitive intelligence secrets were disclosed in open court. Further, your Lordships may be interested to know that the first application for a declaration under Section 6 of the Act has in fact been made by an individual claimant in judicial review proceedings. It

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arises from a successful PII application made by the Government, the claimant arguing that it would in fact be fairer for the material in question to be admitted into a closed material proceeding rather than excluded by way of PII. I commend these rules to this House and I beg to move.

Amendment to the Motion

Moved by Lord Beecham

At end to insert “but that this House regrets that the rules do not reflect the significance of the introduction of closed material procedures to civil proceedings or the concerns expressed by Special Advocates”.

Lord Beecham: My Lords, in moving the amendment in my name, I begin by thanking the noble and learned Lord, as I am sure other noble Lords would wish to do, for his thorough and comprehensive introduction of the rules—without so much as a pause for breath in the 12 minutes or so that he addressed the House. It was, as ever, a compelling performance.

The controversial proposal to extend closed material procedures from the limited category of cases where they previously existed into the area of civil law claims involving the Government evoked much anxious debate in and well beyond this House. Today is not the occasion to revive that debate but rather to consider the nature and effect of the rules of court designed to implement Parliament’s decision, enshrined in the Act which received Royal Assent on 25 April. Notwithstanding the noble and learned Lord’s closing remarks, it must be said that the process itself might be described as something of a closed and rushed parliamentary procedure, since the rules were tabled on 26 June after what appears to have been a minimal consultation period of a mere 10 working days after draft rules were placed in the Libraries of both Houses, and that without any prior announcement.

Given the long gestation period of the legislation, it is surprising that more time was not made available to consult on rules which, on any view, reflect a substantial departure from the principles of our jurisprudence, as does the Act. In particular, they appear to qualify the overriding principle, set out in Civil Procedure Rule 1, that the courts will deal with cases justly and at proportionate cost. Did the Government think to consult, for example, the Joint Committee on Human Rights, the Constitution Committee of this House or the Justice Select Committee, all of which expressed significant views on the legislation in the course of its parliamentary journey? Who else was consulted and with what response? The noble and learned Lord referred to the Delegated Legislation Committee and so on. Were other bodies consulted? Did any body in fact respond in this rather quick consultation period?

As ever, the Government have been quick to find justification for their haste. There are, we are told, some 20 civil cases and some applications for judicial review waiting in the wings—one of which, we understand, has now been initiated. Are these the cases that we heard about between the publication of the Government’s Green Paper and the subsequent passage of the Bill,

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complete with dire warnings about the likelihood of having to pay millions of pounds, which might find their way into the hands of unidentified terrorists? If so, can it really be the case that a few weeks longer to consider the rules would have made much difference? If not, a fortiori, there would surely have been even less of a problem.

Before I return to the important issue of the effect of the rules as drafted on the principles enshrined in the Act, governing the basis on which the courts have to determine whether to grant an application of closed material procedures, it is necessary to consider some other important issues. The Ministry of Justice effectively appears to have transposed to this new arena of civil law cases the procedures applying in the very different world of special immigration appeal courts. In so doing, as Justice and the Law Society have pointed out, they have paid no regard to the way in which ordinary civil claims are conducted. How, for example, could the so-called Part 36 procedure work, under which an offer to settle can be made by a party, with adverse financial consequences for the other party if the offer is refused and not subsequently beaten at trial? Should this procedure be available where closed material procedures apply, when by definition the adverse party cannot properly assess the strength of the other’s case? If so and it could apply, what modification could be made to it?

A number of other issues have been raised. For example, Rule 82.7 requires notice of hearings to be served on the parties and the special advocate. There was considerable support in debate in your Lordships’ House for the media to be informed of the intention to use CMPs. Will the Government consider a further amendment to the rules to this effect, or will they provide an extra parliamentary process to secure that possibility?

Paragraph (3) of Rule 82.12 permits the court to receive evidence not otherwise admissible. Section 6(4)(b)(iii) of the Act provides that intercept evidence will become admissible. What other categories of inadmissible evidence does the noble and learned Lord envisage will be permitted under this rule or, conversely, what will continue to be excluded under this rule? Paragraph (7) of Rule 82.14 allows but does not require a summary of material not disclosed under CMP to be provided to a party, even where national security material is not included. Again, will the noble and learned Lord look at this, especially where national security material will not be involved? The rule may follow the wording of the Act, but it is open to the Government to indicate that they would not rely on a merely permissive obligation.

Of perhaps greater moment, there is the complete failure to address in these rules the concerns expressed by the special advocates during the deliberations over the legislation. The Justice brief, to which the noble and learned Lord alluded, cites nine major concerns. I will cite just two of them: the lack of any formal rules of evidence and the lack of a searchable database of closed judgments. If the noble and learned Lord has not seen the list, will he undertake to look into the matters raised and respond by way of letter? It is true that the special advocates chose not to revive those concerns, in the context of this limited period for

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consultation, but they are on the record. In my submission, they should have been dealt with in the course of preparing the rules which we are debating today.

8 pm

I now turn to what is potentially the most troubling issue arising from the rules. Much of the debate around Clause 6 of the Bill, now Section 6 of the Act, centred on the need for the judge to exercise discretion as to the making of an order. Section 6 sets out two conditions, both of which must, by virtue of Section 6(3), be met. The first is that a party would, by virtue of a declaration, be required to disclose sensitive, that is to say, national security-related, information or would be required to do so but for a range of factors—for example, a possible PII claim or enactment. The second condition is, and I quote Section 6(5),

“that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration”.

The Government produced this wording as an amendment to the Bill as it left your Lordships’ House. The House had passed an amendment positing the need for a declaration to be compatible with,

“the fair and open administration of justice”,

but even the Government’s amended version may be affected by Rule 82. This states that “the overriding objective” set out in Part 1 of the Civil Procedure Rules,

“must be read and given effect in a way which is compatible”,

with Rule 82(2); namely, that:

“The court must ensure that information is not disclosed in a way which would be damaging to the interests of national security”.

But no reference is made to the second condition set out in Section 6(5). I pause to inquire what is meant by the words “in a way”. Will the Minister exemplify ways in which such information could properly be disclosed? That appears to be implicit, but I do not quite understand what the phrase means in the context.

As Justice points out, although the noble and learned Lord seems to dismiss the suggestion, the rules appear to suggest that in the consideration of any application under Section 6, the default position of the court must be non-disclosure rather than any consideration of the underlying and general objective to do justice in the case. It also draws attention to the Explanatory Memorandum that avers that an application under Section 6 must be treated in the same way as one under Section 8, which does not contain the potentially crucial second condition. That section states baldly that,

“the court is required to give permission for the material not to be disclosed if it considers that the disclosure of the material will be damaging to the interests of national security”.

It may be that, as the Minister James Brokenshire asserted in the Commons debate and, if I have understood him correctly, the noble and learned Lord has indicated today, this is not the Government’s intention. There seems to be a degree of uncertainty about this. In that case, would it not be better for the avoidance of doubt for the position to be clarified explicitly in the rules themselves? This would assist in entrenching the position advocated by the Supreme Court, for example, in the recent case of Bank Mellat v UK, that courts should go into closed session,

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“only where it has been convincingly demonstrated to be genuinely necessary in the interests of justice”.

I think the words are those of the noble and learned Lord, Lord Neuberger.

We now have CMP. We owe it to the interests of justice to heed the warnings of such eminent judges as the noble and learned Lord, Lord Neuberger, Lord Sumption and the noble and learned Lord, Lord Hope, who is not in his place tonight, to ensure that the rules are as compatible as possible with this overriding interest. It is in that spirit that I move the amendment.

Lord Pannick: My Lords, during the passage of the Justice and Security Bill, I argued for stronger protections for open justice, as the noble and learned Lord may possibly recollect. This is not an appropriate occasion to revisit that battle, but there has, as the noble Lord, Lord Beecham, explained in his compelling speech, been one important recent development which is relevant to this debate on the contents of the rules now before the House. I refer to the recent judgment of the Supreme Court in the Bank Mellat case.

Your Lordships will know that, under the Counter-Terrorism Act 2008, the Treasury took measures to shut down the operations in this country of Bank Mellat, an Iranian commercial bank. The Supreme Court overturned that decision on procedural and substantive grounds. During the appeal to the Supreme Court, the Treasury asked the Supreme Court justices to hear part of the evidence in a closed session. By five votes to four, the Supreme Court agreed to do so. The noble and learned Lord, Lord Neuberger, the President of the Supreme Court, speaking for the majority, explained that,

“on instructions from his clients, counsel for the Treasury told us that a closed session could make a difference to the outcome of this appeal”.

Despite the court having what the noble and learned Lord, Lord Neuberger, described as “real misgivings”, the majority concluded that in the light of the submissions made on behalf of the Treasury, the court had to look at that material in a closed session. After looking at the material in a closed hearing, all the judges agreed that it made no difference to the issues in the case. The Supreme Court justices then made plain that they felt that they had been misled by the Treasury into allowing a wholly unnecessary closed hearing, about which all of them were uneasy, and which some of them thought was wrong in principle. The noble and learned Lord, Lord Hope of Craighead, said that the Treasury’s plea to the court to go into a closed hearing was,

“a misuse of the procedure”.

This is a very troubling episode.

It is particularly troubling because the noble and learned Lord and others assured noble Lords during the passage of the Bill that closed hearings would be sought only where strictly necessary. The Bank Mellat case demonstrates that, on that particular occasion, that principle was not respected in the highest court of the land. In the light of the criticism made by all nine judges of the Supreme Court of the request made by counsel for the Treasury for a closed hearing when, in the opinion of all the judges, there was no justification whatever for making such an application, will the

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noble and learned Lord tell the House what general guidance has been issued within the Treasury, within other government departments and to lawyers acting on behalf of the Government that in future they should be more careful to ensure that applications for closed hearings should be made only when there is a proper basis to do so?

The only benefit of this unhappy episode is that it led to some useful statements of principle by the Supreme Court which were designed to restrict the use of closed hearings in future cases. Can the noble and learned Lord assure the House that the statements of principle by the noble and learned Lord, Lord Neuberger, to which I am coming, are not overruled or undermined by anything in the rules now before the House for consideration? I should explain that I believe that that is the case; that is, that these rules must be interpreted and applied by reference to the principles set out by the noble and learned Lord, Lord Neuberger. That is one reason why I shall not oppose the rules today. However, I would very much like to hear the noble and learned Lord’s views on these points.

I shall identify the five central principles that the noble and learned Lord, Lord Neuberger, emphasised as important from a common law perspective. First, the noble and learned Lord said that any public High Court judgment must identify every conclusion which has been reached by reference to closed evidence. Will that remain the case under these rules? Secondly, he said that the open judgment must say as much as possible—consistent, of course, with national security—about the relevant closed material. As he noted,

“the more the judge can say about the closed material in the open judgment, the less likely it is that a closed hearing will be asked for”.

Are these rules consistent with that principle? Thirdly, he said that the court must consider whether it is possible to hear argument about the confidential material in open court without referring to any secret detail. Again, are these rules consistent with that basic principle? Fourthly, he said that advocates have a duty to the court to consider whether it really is necessary to ask the court to go into a closed hearing on an appeal. The same principle must apply, I think, to hearings in lower courts. Again, does the noble and learned Lord agree that this principle will apply under these rules? Fifthly, and finally, the noble and learned Lord, Lord Neuberger, for the Supreme Court expressly agreed with the comment of the noble and learned Lord, Lord Hope of Craighead, that judges,

“must be astute not to allow the system [of closed hearings] to be over-used by those in charge of that material”.

Does the noble and learned Lord agree that this principle is also applicable under the rules that we are now debating?

Each of these five principles identified by the noble and learned Lord, Lord Neuberger, is designed to ensure that, because of the vital interest of open justice, closed hearings should occur only when, and to the extent that, they are strictly necessary. My view is that these principles remain valid in relation to decisions under these rules. If the noble and learned Lord thinks otherwise, will he please so indicate to the House and explain why?

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Lord Goldsmith: My Lords, my noble friend Lord Beecham has done the House a service by ensuring that we debate openly some of the issues around this procedure and these rules, and he has done so in a very effective and trenchant way. The noble Lord, Lord Pannick, has raised some important questions. I will not repeat them, but I look forward to hearing what the noble and learned Lord has to say in response. In the light of the way that he has presented those arguments and referred to the Bank Mellat case, I can be relatively short in my remarks, but I have two questions that I want to put.

I thank the Minister for the clarity with which he explained the safeguards that are in place and the emphasis he put on the requirements for the interests of justice still to be served notwithstanding these procedures. That is important because, given the rather stark way in which Rule 82.2 reads:

“The court must ensure that information is not disclosed in a way which would be damaging to the interests of national security”,

some could mistakenly reach the view that that has become the overriding objective in this category of case. The noble and learned Lord, in remarks that will be carefully looked at—indeed mined by advocates, special advocates and, I hope, judges—has underlined that notwithstanding that statement, there are clear indications that the interests of justice remain paramount. He referred to the duty or requirements under Section 6 of the Human Rights Act, under Section 6(5) of the 2013 Act itself, and the fact that the first paragraph of the overriding objectives will continue to apply. Overall, what that indicates, if I understood correctly what the noble and learned Lord said—I hope that he can confirm this—is that, in the Government’s view, judges will still need to be guided by the requirement to ensure that cases are dealt with justly in the interests of the litigants.

Having said that, I was one of those who was unhappy about this procedure. I had had experience of closed material procedures when I was in office and I had spent time talking to special advocates. In the end, the House and Parliament were persuaded that the requirements were such that it was necessary to have such a procedure for a limited number of cases. I agree with the noble Lord, Lord Pannick, that this is not the occasion to go back over that question.

I have two questions, apart from those that have been raised by other noble Lords. First, going back to one of the safeguards which was required by the Act, the requirement for a report which now is to be found in Section 12 of the 2013 Act, will the noble and learned Lord please consider with his colleagues what it is that the report is going to contain? We know that by statute it has to contain numerical details of applications and judgments, but what else is it going to contain? One of the difficulties with these procedures is that because aspects of them will not take place in open court, we will not know what the issues are that have been given rise to by such proceedings. The Secretary of State has the power under Section 12(3) of the Act,

“to include in the report such other matters as he may consider appropriate”.

I hope, therefore, that the noble and learned Lord and his colleagues will consider whether matters that are

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considered “appropriate” would be the sort of thing that show how well the Act is working and whether it is giving rise to the problems that my noble friend Lord Beecham referred to, such as applications under Part 36 and so forth. I hope he can tell us that there will be a real attempt not to limit the reports made under the Act to mere numbers of matters dealt with and declarations made.

The second issue I want to raise derives from the Bank Mellat case. It is very troubling that the Supreme Court felt it necessary to say what it said. I do not know to what extent the Attorney-General was involved in the decision to make the application for a closed material procedure, but it would be a very useful safeguard to ensure that, at least at a certain level, whenever applications are to be made for a closed material procedure, the Attorney-General is involved. That will avoid the situation where counsel who is instructed by his client, which is the way the relationship otherwise works, simply has to accept the view of the officials who are instructing him that the particular matter gives rise to national security issues. It is very easy to say and it is very easy to say it quite convincingly, but it is important that there should be really independent scrutiny of whether it is justified. There will not necessarily be cases where a Supreme Court is in a position to look at it and say as trenchantly as the Supreme Court did in the Bank Mellat case that the application was not justified. I look forward to hearing what the Minister can say about the question of the involvement of the Attorney-General.

8.15 pm

Lord Marks of Henley-on-Thames: My Lords, I fully respect the concern of the noble Lord, Lord Beecham, to scrutinise these rules, and I share his view that they are of considerable importance. However, while of course we all accept that these rules ought to be debated, I find this regret Motion and its terms somewhat puzzling.