House of Lords
Tuesday, 29 October 2013.
2.30 pm
Prayers—read by the Lord Bishop of Lichfield.
Introduction: Baroness Neville-Rolfe
2.38 pm
Dame Lucy Jeanne Neville-Rolfe, DBE, CMG, having been created Baroness Neville-Rolfe, of Chilmark in the County of Wiltshire, was introduced and took the oath, supported by Lord Inglewood and Baroness Hogg, and signed an undertaking to abide by the Code of Conduct.
Introduction: Lord Haughey
2.44 pm
Sir William Haughey, Knight, OBE, having been created Baron Haughey, of Hutchesontown in the City of Glasgow, was introduced and took the oath, supported by Lord Martin of Springburn and Lord McAvoy, and signed an undertaking to abide by the Code of Conduct.
Consumers: Vulnerable Consumers
Question
2.49 pm
To ask Her Majesty’s Government what steps they are taking to protect vulnerable consumers, including the elderly and those without digital skills or broadband access, who are being charged by organisations for receiving bills and statements through the post.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con): There are already provisions in place to protect the more vulnerable. Utility regulators take steps to assess the quality and affordability of services for customers, including the vulnerable. Should companies wish to charge more for a paper bill they must make such charges transparent in advance and ensure that they reflect only additional processing costs incurred. The Government are increasing online access by accelerating broadband rollout, promoting simple bank accounts and increasing digital skills to use electronic payments.
Baroness Deech (CB): I thank the Minister for his appreciation of the problem, but is he aware that 16 million people—and 4 million disabled people—are not on the internet? Even if they were, the cost of printing and ink is such that the companies are pushing the charges back on to the consumer. Extra charges and discounts add up to quite a lot a year. Does he
agree that every consumer should be able to choose a paper copy of communications and bills from media companies, energy companies and so on without being penalised? Will he press the relevant regulators—Ofcom and Ofgem—to ensure that consumers are not so penalised?
Viscount Younger of Leckie: Interestingly, this is not an area where regulators receive many complaints and more vulnerable customers often have access to special tariffs. However, the noble Baroness raises an interesting point. I understand, for example, that BT charges £1.50 for paper bills, which relates largely to its broadband customers who clearly have internet access and can receive bills online. We believe that the charge is reasonable, covering costs such as printing and postage. Customers using a BT basic telephone service are not charged for paper bills.
Baroness Oppenheim-Barnes (Con): Is my noble friend aware that the noble Baroness, Lady Deech, is to be congratulated on raising this issue? The problem is very widespread. The Government are not to be congratulated. People of all ages often choose not to go online even if it is available to them. Charges are made by the utilities because you have to use that very expensive telephone line, which has the most often-played recording of all time which starts, “We are encountering an extraordinary level of calls”. That means the call will cost even more. That is only one of the things that consumers have to put up with. The excuse given by all who make those charges is that it is more efficient and they can therefore charge lower prices. I have not noticed that happening. This is an urgent matter and I hope that the Government will take it seriously.
Viscount Younger of Leckie: My noble friend makes a good point that clearly some people still wish to receive bills through the post. However, a number of organisations across the UK offer free IT skills training and cater for the elderly and disabled, including the UK online centres funded by the Skills Funding Agency. We are keen to encourage more people to go online.
Lord Brookman (Lab): My Lords, I do not speak much in this House but I am here regularly. As one of the younger Members of the House of Lords, I very much agree with the Question and the mood across the road there. I am still with the quill. I am computer illiterate and therefore hopeless at answering some of the mail and bills I get. Will the Minister please address the question posed?
Viscount Younger of Leckie: I have noted the noble Lord’s point. For the most vulnerable people the most important thing is that the right advice being available for their particular circumstances. For example, Citizens Advice and the Money Advice Service are there. Paper bills might not always be the best choice but, I say again, I recognise that some people will always require bills sent through the post.
Baroness Butler-Sloss (CB): My Lords, with an ageing population where a very large part is getting much older, including me—I actually use a computer
but do not always want to use it—the Minister is underestimating the importance of people not necessarily wanting to use the computer and the far too many, perhaps, who actually cannot. There is no point offering courses if they are really not up to it. The Government should listen to this.
Viscount Younger of Leckie: I reassure the noble and learned Baroness that I am very much in listening mode and say again that some people will always genuinely want to receive bills and statements through the post. Companies certainly recognise that. The issue is that if that is the case and there is to be any change to contracts, I need to give them a decent amount of time under the legal protection to do that.
Lord Cotter (LD): My Lords, the Minister has responded somewhat defensively on this issue. Could he please listen? We are talking about 7 million adults, largely elderly, and vulnerable and disabled people who cannot have access to the net, and many rural areas still do not have good broadband. These are very serious issues. Companies are pushing people in the wrong direction, for example, by renewing contracts over the internet. People are not aware of this and then learn, some months later, that money has been taken out of their accounts to renew a contract they did not know about. There are big issues involved.
Viscount Younger of Leckie: Again, I note the point made by my noble friend. It is worth pointing out that providing information only online could, in certain circumstances, amount to indirect discrimination unless it is a proportionate means of achieving a legitimate aim. Consumers have the choice not to access the internet, but that choice may mean paying for a paper copy.
Baroness Bakewell (Lab): My Lords, it is not a matter of lifestyle choice whether or not people prefer to use the internet: for many people it is a question of poverty. Some 44% of the older people who are not online, when asked why, said that they could not afford it. Does the Minister agree that this is adding to the disadvantage they already experience by virtue of being old and poor, and making it worse?
Viscount Younger of Leckie: I certainly note the comment that the noble Baroness made. It is in line with the other comments that have been made today and has been firmly noted.
Lord Elton (Con): My Lords, if the utilities were capped as to the length of a telephone call they could charge for—to, say, a couple of minutes—would they not then have a pressing interest in cutting listening to this awful recording rather effectively?
Viscount Younger of Leckie: I note what my noble friend says. It is difficult to answer in more depth than that.
Baroness Hayter of Kentish Town (Lab): My Lords, does the Minister acknowledge that there is nothing in the so-called consumer rights Bill that the Government will be imposing shortly to deal with such issues? Will he therefore open discussions with representatives of consumer organisations and the Opposition to make sure that the Bill will increase rights and not just codify them?
Viscount Younger of Leckie: We are not planning to include anything specific but the consumer rights directive is being implemented as part of the programme. This will mean that suppliers should obtain consumers’ express consent to any extra charges. They should not use a tick-box approach that requires consumers to untick boxes in order to avoid charges.
Human Rights: Vinter and Others v United Kingdom
Question
2.58 pm
Asked by Lord Lloyd of Berwick
To ask Her Majesty’s Government what steps they will take to implement the decision of the European Court of Human Rights in Vinter and Others v United Kingdom.
The Minister of State, Ministry of Justice (Lord McNally) (LD): My Lords, the Government are considering the implications of the judgment and will set out their conclusions as soon as possible.
Lord Lloyd of Berwick (CB): My Lords, the noble Lord will know that there are now 51 prisoners serving whole-life sentences. He will also know that on 9 July the Grand Chamber decided by 16 votes to one that whole-life prisoners are entitled to have their sentences reviewed after 25 years, a right which they always had under English law and practice until they lost it, by an oversight it seems, as recently as 2003. It is now 16 weeks since the decision of the Grand Chamber. Why has it taken so long for the Government to reach their own decision in this matter? How can that delay be regarded as fair on the prisoners themselves, who are waiting to know the answer?
Lord McNally: Let us be clear: the judgment gave an opinion about our law as it stands; there was no case that the outcome of such a decision should make the three prisoners concerned, or indeed any other prisoners, automatically allowable for parole or release. It was a judgment on our law and I think that we have every right to give due consideration to what we should do when we receive such a judgment. I do not think that there has been a delay. As I said in my reply, we will come forward with our response in due course.
Lord Morgan (Lab): My Lords, this judgment was supported by, among others, the English representative on the European court. Does it not show, first, that we are virtually unique in Europe, since every other European
country has either no life imprisonment or the possibility of revising or reducing it? Secondly, does it not show that the United Kingdom has a far more punitive penal philosophy in these matters? This philosophy ignores the possibility of review or, perhaps, of release. It ignores the basic principle of rehabilitation and denies, in the words of the court, “the right to hope”. The Minister is a humane and progressive man. Is he not anxious about presiding over such a policy?
Lord McNally: I am anxious about living in a time when both major parties advocate a more punitive approach to crime and punishment. I hope that the leaders of both parties will ponder a trend over the past 40 years in our society which looks more to punishment and less to rehabilitation. I should also mention the chutzpah of the Opposition because it was under their watch that this right was taken away in 2003. Whether that happened by mistake or by intention, I do not know, but it was under the previous Government that the provision covered by the ruling just made against us in Strasbourg was passed. We have had to pick up a lot of debris about human rights. The previous Government sat on the prisoner decision for five years and did nothing, so I will not take any kind of lectures from that side of the House.
Lord Marks of Henley-on-Thames (LD): My Lords, does my noble friend agree that we must comply with the Vinter decision in July, given our treaty obligations and our respect for the rule of law? Will the Government now reintroduce a review procedure for whole life cases to give prisoners serving them some hope of eventual release, other than purely on compassionate grounds, if and when their imprisonment plainly no longer serves a public purpose?
Lord McNally: That is one possible outcome of the consideration now taking place. At the moment, we are reviewing the matter in the light of this judgment. I cannot take the House any further in that direction. Nevertheless, it is a very interesting and, if I may say so, a very liberal approach to the problem that we face.
Lord Elystan-Morgan (CB): My Lords, I respectfully urge the Minister not to regard this as a political matter at all. On 9 July, the court clearly suggested that an error had been made, quite inadvertently, when the Criminal Justice Act 2003 was passed. Prior to that period, all life sentences were reviewable after a quarter of a century. It did not mean that anybody was thereby released; it meant that the sentence was reviewed. That is the narrow point. By failing to review, we are—according to the judgment of 16 to one, including the United Kingdom judge—in breach of Article 3. We must set the situation right as soon as possible.
Lord McNally: That is why we are considering the judgment. I will give way very quickly: I do not want to make this a party political matter, but perhaps the author of the 2003 Act can tell us whether it was a mistake or an intention.
Lord Tomlinson (Lab): Does the noble Lord accept that the longer we vacillate on this, the longer we appear to be in conflict with the European Court of Human Rights and the worse our reputation is becoming among the other member states of the Council of Europe? Justice in this case should not be delayed any longer. We should comply with the 16-to-one decision. Then we will have the moral authority to talk about the importance of other people abiding by the European convention.
Lord McNally: The noble Lord knows that I agree with him that it is very important that we co-operate with the court and that we take the commanding heights in terms of defending human rights. We have throughout our history set a good example and I want us to continue to do so.
Internet: Regulation
Question
3.04 pm
To ask Her Majesty’s Government whether they plan to promote the regulation of the internet, and if so how and by whom regulation should be carried out.
Lord Gardiner of Kimble (Con): My Lords, where something is illegal under UK legislation, this applies online as well as offline. The Government support a self-regulatory approach and work closely with industry, civil society and other stakeholders to ensure that the internet is a safe and trusted environment, delivering social and economic benefits. In particular, the Prime Minister and the Culture Secretary have made delivering measures to protect children online a priority, rightly reflecting the great importance that the public place on this.
Lord Giddens (Lab): I thank the noble Lord for that Answer. I hope that he will agree that the internet is perhaps the most astonishing force of our era in terms of the pace of its advance and the scope of its reach. It brings many benefits, but it has a very dark side. I would like the Minister to pursue the issue of its impact on children, since very young children can have access to material which they could never have a generation ago. What kind of improved regulatory structures can be put in place? How can either the Government or Governments ensure that children do not suffer lasting harm?
Lord Gardiner of Kimble: My Lords, I think the truth is that we are living alongside a technological revolution and it is changing very fast. As the noble Lord said, it is very much a force for good but its capabilities have dangers, too. We must protect the young from harmful content online. Through the UK Council for Child Internet Safety, which is co-chaired by three Ministers across departments, more than 200 organisations come together to identify and address risks to children online. We believe that that is the right approach.
Baroness Howe of Idlicote (CB): My Lords, in a speech to the NSPCC on 22 July, the Prime Minister noted that the time had come for action to address the corrosion of childhood by online pornography. What progress has been made following the voluntary agreement by the big ISPs to administer default filters for all new customers by the end of 2013? Have the ISPs taken action?
Lord Gardiner of Kimble: My Lords, the noble Baroness is absolutely right. The Prime Minister, in a very significant speech, made a number of points about how we best deal with the dangers involved, particularly for children and the vulnerable. Domestic internet filtering for new and existing customers was part of that, and not only by the four large internet service providers. We want to go beyond that. We need to ensure that this is a comprehensive package so that children are as safe as possible in this very changing world and environment.
Lord Harris of Haringey (Lab): My Lords, why has so little been achieved in getting a robust system of age identification that can be used on the internet, and why have the Government done so little to promote that with those who might make it happen?
Lord Gardiner of Kimble: I was looking into age verification only this morning. There is a working party on this matter at the moment in which the UK Council for Child Internet Safety is involved. It is drawing up a number of options; it is looking at some Danish examples of solutions and at how UK schools are doing it. I assure your Lordships that this is being taken very seriously indeed, because it is a very serious point.
Viscount Ridley (Con): My Lords, in considering the regulation of the internet, would the Minister bear in mind one law in particular—the law of unintended consequences?
Lord Gardiner of Kimble: My Lords, yes, this is why we think the self-regulatory approach is best. The situation is so changing that we could go down a legislative path and find ourselves in difficulties thereafter. That is why the approach of everyone working together—industry, parents, civil society—is at this time the best way.
Baroness Lane-Fox of Soho (CB): Would the Minister agree with Sir Tim Berners-Lee, inventor of the world wide web, that in any regulation of the internet the core principles of openness and transparency must be at its heart?
Lord Gardiner of Kimble: I entirely agree with the noble Baroness. It is beyond my comprehension how anyone could have invented these technological advances. I have a lot of sympathy with people who have difficulties. They are, however, a force for good but we must make sure that they are open and transparent. That is why the work that the Government are undertaking is precisely to get the best approach.
Lord Stevenson of Balmacara (Lab): My Lords, could the noble Lord explain to us, given that so much news is now transmitted on the internet, what the Prime Minister meant yesterday when he called on the Guardian and other newspapers to show social responsibility? How does that square with free speech?
Lord Gardiner of Kimble: There is a balance in all these things. Free speech is extremely important. It is—I have mentioned this before—something that we very much treasure. At the same time, it must be incumbent on us all, particularly in security matters, to be extremely cautious.
The Earl of Listowel (CB): I welcome what the Minister said about schools. Can he say how teachers are being equipped to speak with confidence to children about such issues as the use of the internet?
Lord Gardiner of Kimble: My Lords, one of the key features of e-safety and schools is that this will be part of the national curriculum. It will be taught at all four stages. Clearly, it is absolutely essential that teachers are aware and feel comfortable with the teaching of it. It is very important that there is proper training for that.
Lord Sugar (Lab): My Lords, I am sure that the Minister is familiar with the fact that the ISPs are capable of filtering the accessibility of undesirable material in the same way that they are able to stop unauthorised access to people’s accounts. This, of course, is a costly exercise and not part of their business model. Would the noble Lord consider widening the remit of Ofcom and making it a full-blown regulator for the internet—particularly in implementing the aforementioned filtering that I referred to—for the benefit of protecting children and some other disadvantaged consumers?
Lord Gardiner of Kimble: My Lords, I think the noble Lord is right that Ofcom has a role to play. Indeed, it has been charged with reporting on child internet safety and parental awareness of, and confidence in using, those safety tools. The report will be out next year. We want to see what that brings forward. As I say, the approach is that industry, parents and civil society need to work together to get the right approach because, among other things, things are changing so fast.
Food: Waste
Question
3.12 pm
To ask Her Majesty’s Government what recent discussions they have had with supermarkets about food waste.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord De Mauley) (Con): My Lords, we are working with retailers through the Waste and Resources Action Programme
to reduce food waste. We have set targets on reducing food and packaging waste for food retailers and manufacturers under the third phase of the Courtauld commitment which runs from 2013 to 2015. This phase targets a further 1.1 million tonnes of waste reduction. Forty-nine signatories have already signed up to the commitment, with a combined share of more than 90% of the UK grocery market based on sales.
Baroness Parminter (LD): I thank my noble friend for that reply. Is he aware that only one supermarket—Tesco—has published its food waste figures? How can the appalling levels of waste be driven down without more monitoring and reporting? Will the Government require all major food businesses and supermarkets to publish their food waste figures in their annual reports?
Lord De Mauley: My Lords, retailers are already reporting their food waste figures to WRAP under the voluntary Courtauld commitment, so legislation specifically is not needed. Tesco’s initiative, which I warmly welcome, shows that the voluntary approach is working. Retailers like Tesco recognise that food waste is a global issue. Knowing where the waste is occurring is the first step to dealing with it and means they can focus their efforts in the right places.
Baroness Howarth of Breckland (CB): My Lords, as this is a global issue, and indeed a European issue, what are we doing with Europe to look at the framework and to develop that in a European context?
Lord De Mauley: My Lords, we are working extremely closely with the EU. EU drivers of food waste policy include the landfill directive’s targets to reduce biodegradable waste going to landfill and the revised waste framework directive’s requirements to manage waste according to the waste hierarchy, recycle 50% of household waste by 2020 and ensure that biodegradable waste is treated sustainably. We will continue those discussions.
Baroness Jenkin of Kennington (Con): My Lords, I echo my noble friend’s point about the Tesco waste figures, which are independently audited. It is also donating 2,300 tonnes of surplus fresh food waste, which is 7 million meals, to FareShare. While I agree that that shows that other supermarkets should do the same, will the Government please encourage them all to do as much as they can?
Lord De Mauley: My noble friend makes a very important point. Indeed, that is why we are continuing to pursue the Courtauld commitment initiative, which was started under the previous Government and which has been extremely effective.
Lord Knight of Weymouth (Lab): My Lords, as the growth in popularity of TV food programmes shows, we Brits love our food but we also love a two-for-one offer and the convenience of bagged salad. Between
bake-off and BOGOF is the contradiction that many of us throw away more and more food while the numbers becoming reliant on food banks are spiralling, as people struggle with the cost of living crisis. Is there not a need therefore for the Government to work with retailers, broadcasters and others to help educate consumers, rather than having an Education Secretary who stigmatises and blames food bank users while downgrading the importance of cooking in the curriculum?
Lord De Mauley: I was with the noble Lord until shortly before the end, which is why we place such store by the “Love Food Hate Waste” programme, which was initiated by WRAP. The good news, which the noble Lord may not know, is that “Buy one, get one free” deals represent a relatively small proportion of supermarket promotions. The majority of promotions are temporary price reductions: for example, “Was £8, now £6”. “Buy one, get one free” deals are often on non-perishable items or items with long lives, and WRAP is working with retailers to encourage alternative promotions for perishable foods.
Lord Palmer of Childs Hill (LD): My Lords, in his initial reply, my noble friend the Minister mentioned excessive packaging. What success has there been in reducing excessive packaging? We still have lots of wrapping around our shirts and around cucumbers, all of it unnecessary, yet at the same time we are telling local authorities to increase recycling.
Lord De Mauley: That also is a very important point. We have some pretty aggressive packaging recycling targets, which go up to 2017. However, particularly in respect of food, there are relatively limited opportunities for more substantial reductions without resulting in product damage due to underpackaging. The environmental impact of that would be greater than that of the packaging itself.
Lord Vinson (Con): My Lords, 100 years ago food waste was fed to pigs. Today, food that is consumed by humans one day is regarded as unfit or unsuitable to feed to pigs the next. Here is a natural, sensible recycling course to use up this waste. Will the Government look at the regulations, particularly those EU regulations, that prevent the feeding of surplus foodstuffs to pigs, with a view to opening up a sensible recycling route and saving a massive amount of waste?
Lord De Mauley: My Lords, of course human safety has to be our key concern. There is EU regulation in place, to which my noble friend referred, that restricts the feeding of food waste to farm animals, although I am sure he is aware that there are some exceptions with low-risk foods such as bread, vegetables and fruit. We keep the situation regarding disposal of food and catering waste under review but, as I say, the main focus must be on human safety. There are of course other routes for food waste, such as anaerobic digestion.
Care Bill [HL]
Third Reading
3.19 pm
Clause 1: Promoting individual well-being
Lord Hamilton of Epsom (Con): My Lords, I am a great supporter of the Care Bill, and my disagreement with my noble friend the Minister is on an extremely small point. When I went to see my noble friend the Chief Whip and stated my intention to press this amendment to a Division if it was not accepted by the Government, she said that she was very unhappy about people pressing Divisions at Third Reading. I have a lot of sympathy with her on that issue, but the problem is that when my noble friend Lady Barker tabled her amendment, it had a fantastic amount of support from all over the House—although not unanimous support, as the noble Lord, Lord Warner, had reservations. If he does not mind, I shall come back to those in a minute. My noble friend the Minister said that he would look at this matter again and come back at Third Reading—and that is where we are now.
I am a little naive and overoptimistic, and as the amendment tabled by my noble friend Lady Barker referred to spiritual well-being, I assumed that any amendment tabled by my noble friend the Minister would also include references to spiritual well-being. Instead, the government amendment would merely add the words “and beliefs”, so that local authorities would have to take into account,
“the individual’s views, wishes, feelings and beliefs”.
I do not regard that government amendment as meeting the legitimate desires of the noble Baroness, Lady Barker—with my support and that of many others—even half way. If anything, it takes us about a third of the way. It is a compromise, but it does not go very far towards meeting our original desire.
The problem is that the provision as amended would continue to deny the role of spirituality for carers and those facing chronic illness. The South West Yorkshire Partnership Foundation Trust says:
“Spiritual care can help you make the best use of all your personal and spiritual resources in facing and coping with the doubts, anxieties and questions which can arise in a health setting or when you are ill.”
That illustrates the problem that faces the Minister. The whole concept of spiritual well-being has not just been dreamt up recently by people who want to influence the Care Bill; it is a concept that has been adopted by the National Health Service since 2002, and it is already incorporated in NHS guidance for professionals and patients.
At the risk of boring the House, I shall read out some NHS advice:
“Provider units, including NHS trusts should make adequate provision for the spiritual needs of their patients and staff”.
That comes from NHS Management Executive, HSG(92)2. Here is another quotation from the NHS:
“NHS staff will … be sensitive to and respect your religious, spiritual and cultural needs at all times”.
That comes from Your Guide to the NHS,dated 2002.
“All NHS Trusts should ‘Make provision for the spiritual needs of all patients and staff from all faith communities’”.
That is from New Guidance DOH on NHS Chaplaincy, also dating from 2002. Indeed, my noble friend the Minister paid tribute on Report to the hospital chaplains, who perform an important role in the spiritual context. We have to ask why, if spiritual well-being is a commitment by the National Health Service, it cannot also be a commitment for local authorities.
I now turn to the concerns of the noble Lord, Lord Warner, who is chairman of the All-Party Humanist Group. He was concerned on Report that the clause might be discriminating against humanists. There is no question of that at all. The clause is focused on individual well-being. If an individual desired to have their spiritual well-being promoted, the local authority would be required to do that. On the other hand, if the individual expressed no desire to have their spiritual needs attended to then they would not get any form of spiritual counselling. That works well in the NHS, where you do not hear of an atheist’s interests being overridden. There is no reason why it should not work equally well with local authorities. Indeed, the Home Care Association, the London Borough of Hillingdon and the Social Care Institute for Excellence have all made reference to the importance of people’s religion and spiritual needs.
My amendment would not wreck the Care Bill. It is a tiny amendment that would make no difference whatever to the main purpose of the Bill. I am not asking the Minister to go the extra mile—merely the extra yard. Surely it is right to bring the local authorities into line on the question of spiritual well-being with the NHS. Surely it must be right to give solace to those many people who believe that there is a spiritual dimension to their lives. It would be particularly important for those in their declining years.
The Minister has rightfully won himself a reputation for dealing with your Lordships’ House with courtesy, politeness and understanding. I ask him now to show courtesy and understanding and to support my amendment.
Lord Cormack (Con): My Lords, I support my noble friend, which is why I put my name to this amendment. I spoke briefly when it was first debated a couple of weeks ago and I am delighted to add my voice now.
I hope that the House will feel that what we are discussing is an important matter, but one that does not in any sense reflect on the Bill and would not impede the Bill’s limitation. All that it would do is give a degree of solace to many people for whom the spiritual dimension of life is crucially important. That is very simple but very profound. It behoves this House, of all places, to put this in the Bill.
I accept, without any reservation whatever, the good intentions of the Minister, for whom we all, in all parts of the House, have very high regard. He is a man of
diligence and sensitivity, and he always tries to meet the legitimate concerns of his colleagues in all parts of the Chamber. I say to him today, with the greatest possible respect, that while he has tried to meet us, he has not quite succeeded on this occasion. The phrase “feelings and beliefs” is not a substitute for the word “spiritual”.
As my noble friend Lord Hamilton said, this would in no sense damage the concerns or interests of humanists and others. If someone did not wish to have spiritual care or to have their spiritual needs taken into account, then so be it. However, there are many people, especially, as my noble friend said, those in the evening of their lives, for whom this is an exceptionally important dimension of those lives. I urge colleagues in all parts of the House to recognise the profound importance of this simple amendment and, if my noble friend feels inclined to test the opinion of the House, to react sympathetically. I hope that that will not be necessary, however; my noble friend has referred to the misgivings of the Chief Whip over Divisions on Third Reading. Like him, I understand those reservations, but the fact is that the Minister said that this was a matter to which we would return at Third Reading, and that he would try to table something. He has been as good as his word in tabling it, but I do not believe that he has quite met the points that concerned my noble friend Lord Hamilton and I, and many others. Therefore, the best possible solution to our dilemma this afternoon would be for the Minister to accept this modest amendment. I hope that he will do that and avoid the Division which the Chief Whip would so regret.
3.30 pm
Baroness Warnock (CB): My Lords, I support this amendment because I think that the reason that the noble Lord, Lord Warner, for example, objects to it is that he associates the word “spiritual” entirely with religious belief. As a matter of fact, I think the word has a much wider meaning that has nothing to do with religious belief, although of course for many people it does refer to religious belief. However, there are many people who are not religious who would nevertheless accept the word “spiritual” as covering what, in a sort of 18th-century sense, might be referred to as matters of sentiment; not belief, but a deep and profound romantic sentiment connected with the concept of nature and man’s place in nature. These are thoughts that come into one’s head in one’s declining years.
Therefore, it is partly through a misunderstanding, and a narrowing of the concept of “spiritual” that people may object—indeed, the Government may object—to its inclusion in this clause. For my part, and I think I speak for many people, it is a much wider word and it is a matter of enormous importance and great comfort to suppose that it is in the Bill.
Baroness Emerton (CB): My Lords, I support the amendment in the name of the noble Lord, Lord Hamilton, and agree with the views just expressed by the noble Baroness about spirituality. I ask for the forgiveness of your Lordships’ House for this late intervention on the subject. I speak as a retired nurse, but I am nevertheless aware of the situations that nurses are placed in concerning this issue.
Let me start at the beginning. The Nursing and Midwifery Council, places a requirement on every new graduate that each nurse, in partnership with the person, their carers and their families,
“makes a holistic, person centred and systematic assessment of physical, emotional, psychological, social, cultural and spiritual needs, including risk, and together, develops a comprehensive personalised plan of nursing care”.
When I was taught in the preliminary training school, holistic care was described as the physical, mental and spiritual well-being of the patient, as in the 1950s, language was not so sophisticated to call it holistic care with all the ingredients that the NMC spells out. Nevertheless, the principles were well rooted. As a student, I clearly remember the description of today’s holistic care likened to a three-legged milking stool: when one leg breaks, it affects the whole stool. Likewise, if there is a physical condition, the whole person requires attention, be that psychological or spiritual.
It became necessary in 2010 for the Royal College of Nursing to commission a survey on spirituality. It revealed that members wanted more education and guidance about spiritual care, clarification about personal and professional boundaries, and support in dealing with spiritual issues. Within the survey it emerged that there was agreement that spiritual care is a fundamental part of nursing currently much neglected through ignorance and misunderstanding. A pocket book was prepared for the use of nurses, which states:
“The practice of spiritual care is about meeting people at the point of deepest need. It is about not just ‘doing to’ but ‘being with’ them. It is about our attitudes, behaviours and our personal qualities … It is about treating spiritual needs with the same level of attention as physical needs”.
“Often it is not until a crisis, illness … or suffering occurs that the illusion of security is shattered. Illness, suffering … and ultimately death … become spiritual encounters as well as physical and emotional experiences”.
Spiritual care is not just about religious belief and practice or about imposing belief and values on another using a position to convert. It is not a specialist activity or the sole responsibility of a chaplain. It is about hope and strength, trust, meaning and purpose, belief and faith in self and others. For some, this includes a belief in a deity and a higher power, people’s values, love and relationships, morality, creativity and self- expression.
Eighty per cent of care is delivered by nurses in hospitals and hospices. Nursing homes and care homes are less well supported by registered nurses but again support workers need to understand the relationship between physical, mental and spiritual needs in order to gain the right support for the person being cared for. However, this can be achieved only if nurses have enough time to be with the patient to establish a relationship and to pick up where there is a need. It cannot be done in 15 minutes, but in 15 minutes a registered nurse may pick up the need and be able to pass it on to someone who can give the help that is needed.
I hope the Minister will feel able to support the amendment before us as the words “spiritual well-being” are more explicit about what is required than the word “beliefs”. I hope this short explanation of the depth
and breadth in which the nursing profession has explored this subject reflects the enormous amount of work that is required by all caring staff in whatever capacity to understand that the need for holistic care to meet the needs of those being cared for and their families is not restricted to physical or psychiatric treatment but includes spiritual well-being covering many innermost personal needs at often the most vulnerable time in their lives.
Baroness Barker (LD): My Lords, I thank the noble Lord, Lord Hamilton, for his kind words about the work I did on this issue. On Report, I tabled the amendment which stands in his name today because at that point the Government were working to a definition of well-being which was about emotional well-being, and it was my view that it did not sufficiently encapsulate the matters we would define as spiritual. My name is not on the amendment today because over the past few weeks I have discussed this at some considerable length with a number of people, not least with the Minister and the noble Lord, Lord Warner, on BBC Radio 4 at some unearthly hour a couple of Sundays ago.
I think the Minister has met us where we need to be because his amendment refers to “feelings and beliefs”, which is a fairly wide and inclusive term. It is important that we take his words, not the wording proposed by the noble Lord, Lord Hamilton, because most of the discussion this afternoon has been about health and healthcare in healthcare settings, such as end-of-life settings, but this Bill is about social care at its widest in the community. Therefore we are perhaps not talking about the well-being of people at the end stage of their life, and it is important that we stick to a wider definition of a person’s beliefs because we are not talking just about medical matters.
The way the Government have framed the argument is sufficiently wide to include spiritual beliefs. I think in the normal course of conversation, when we talk about beliefs, we have almost a hierarchy of them. Religious beliefs perhaps come fairly high at the top; then people would secondarily think about spiritual beliefs. They might go on to talk about political beliefs being important to a person’s well-being. That is why I think that this time the Government have got this right. It is sufficiently clear and sufficiently inclusive to reflect all the concerns that remain legitimate on behalf of people backing my noble friend Lord Cormack’s amendment.
On this occasion the belt and braces are unnecessary and the noble Earl, Lord Howe, has got the House to the point where it wants to be. I will be quite happy to support that, not least because I think if we reform it we go with that formulation of words. Then we will be able to do the one thing which I think the law has to do, which is to be there as a backstop for those people who believe that their feelings and wishes are not being acknowledged and are being abused. That is the primary purpose of this legislation. Therefore, it should be as wide as possible.
Lord Elton (Con): What the noble Baroness has just said prompts me to point out a difficulty. We are in an age when there is controversy about spirituality, when
people can actually lose their jobs over issues of spirituality. If there were to be a case arising under this legislation in which such a matter arose and spirituality was not mentioned in the Bill, the position of those people would be a great deal weaker than if the Bill was amended as my noble friend suggests. Like the Chief Whip, I know that it is contrary to our normal custom to divide at this stage, but it seems that this is an issue of sufficient importance on the one hand and of narrowness of scope on the other to make it both necessary and painless.
Lord Hunt of Kings Heath (Lab): My Lords, as this is a new stage I will just declare my interest as chairman of an NHS foundation trust, president of GS1, and a consultant and trainer with Cumberlege Connections. With the noble Baroness, Lady Barker, I, too, was very interested in this discussion at an earlier stage of the Bill. Our concern is that the original Government view is that spiritual issues would be embraced by Clause 1(2)(b) under the words “emotional well-being”. The noble Baroness, Lady Barker, and I did not feel that that was sufficient. Indeed, we had some worries that spiritual well-being could actually be subsumed under the terms “emotional well-being”.
The noble Earl, Lord Howe, has, I think, met our concerns. As he said in his letter to us, adding “beliefs” to Clause 1(3)(b) enables spiritual beliefs to be encompassed within that term without excluding any other forms of belief that may not be described as spiritual. I think that meets the concerns that I had about this matter. I would like the noble Baroness, Lady Barker, to draw a distinction between that and the specific issue that noble Lords have raised in relation to the health service, which is clearly designed to ensure that the NHS employs a chaplaincy service and which I absolutely subscribe to. Indeed, I pay tribute to the chaplaincy service up and down the country. However, this Bill is about a different set of circumstances. To the noble Lord, Lord Elton, I say that employment issues do not arise in this regard. We are talking about Clause 1 of the Bill, which is about promoting the individual well-being within the context of the Care Bill. I understand the point that he raised, but I do not think it arises in this context.
I would, though, say to the noble Lords, Lord Hamilton and Lord Cormack, that, reading the Companion, they are definitely right to bring this issue up on Third Reading. It is quite clear that an issue was raised in the debate on Report and the noble Earl agreed to look into it. He has now brought forth an amendment, and the Companion is absolutely clear that amendments on Third Reading are,
“to enable the government to fulfil undertakings given at earlier stages of the bill”.
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It is surely perfectly proper for noble Lords, who have seen a government amendment and who feel that it does not meet their needs, to bring an amendment and to have a vote on it. The fact that we on this side of the House think that this is a matter of conscience and have no Whip on this matter, and that I do not agree with the noble Lord, Lord Hamilton, does not mean that he does not have every right to raise it. If he wishes to put it to the vote, he should jolly well do so.
Lord Elton: My Lords, on the noble Lord’s response to me, if an employee is able to point to statute and say that they are carrying out a requirement of statute, that has a very considerable bearing on tribunal cases and should not be brushed aside.
Lord Hunt of Kings Heath: My Lords, I do not seek to brush it aside. However, this clause relates to the responsibility,
“of a local authority, in exercising a function under this Part … to promote that individual’s well-being”.
Spiritual issues are subsumed under the amendment moved by the noble Earl, Lord Howe. With the greatest of respect, this does not relate to an employment law issue between an employer and an individual. This is very much around the kind of support that should be given to an individual by the local authority. There is a distinction between the situation that the noble Lord raised, and the issue that is set out in this clause.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, before I move to the matter in hand, I thank noble Lords for the tremendous dedication that they have shown to the scrutiny of the Bill during its passage through the House. It is a landmark piece of legislation, and I hope that the House will agree that the changes that the Government have made in response to the debates that we have had have strengthened the Bill so that it will pass to the other place in an even better state. Many noble Lords across this House have dedicated impressive time and energy to improving the provisions in all parts of the Bill, but time does not permit me to thank all noble Lords individually, as I would like to. However, I thank again those noble Lords who played such an important role in improving the Bill as members of the pre-legislative scrutiny committee.
I turn to my noble friend’s amendment. Under Clause 1, local authorities must promote individuals’ well-being and must also have regard to individuals’ views, wishes and feelings. As I set out during our debate on Report, we consider that these provisions mean that a local authority would take a person’s spiritual views, wishes and feelings into account in promoting their well-being. However, in response to concerns raised by a number of noble Lords on Report, I have now tabled an amendment to make it absolutely clear that these matters should be considered where they are of importance to the individual.
My amendment adds “beliefs” to the matters to which a local authority must have regard when exercising care and support functions. Having regard to someone’s beliefs includes their spiritual beliefs; for example, ensuring access to an appropriate figure of religious authority during palliative care. This approach achieves the same aim as Amendment 1 in the name of my noble friend Lord Hamilton, but I suggest to him and to the House that the government amendment is preferable, for two reasons.
First, my amendment quite deliberately does not refer specifically to “spiritual” well-being, but applies instead more widely to beliefs, which was the point made very effectively by my noble friend Lady Barker. That is because we do not wish to exclude those who
may not consider themselves to have “spiritual” beliefs. That issue was raised by the noble Lord, Lord Warner, on Report, in relation to humanists.
Secondly, despite the comments of the noble Baroness, Lady Warnock—to whom I listened as always with great attention—spiritual well-being is not a well understood or defined concept. It carries a risk because it may confuse the practical application of the well-being principle on an individual level. There is another problem here. My noble friend’s amendment would effectively mean that local authorities had a duty to promote an individual’s spiritual well-being or beliefs. It is not appropriate to require a local authority to promote spiritual matters, except in so far as they affect the emotional well-being of a person.
Lord Cormack (Con): This is a question not of local authorities promoting but of their protecting. There is surely a real difference there.
Earl Howe: I hope that my noble friend will on reflection agree that promotion is very much a part of the local authority’s role here. However, subsection (2) makes adequate provision as regards the emotional well-being of a person.
My noble friend Lord Hamilton compared what we are proposing in the Bill to the situation in the National Health Service. The NHS does not have a duty to promote spiritual well-being and, if it did, that potentially would have the negative consequences that I outlined. Having said that, the noble Baroness, Lady Emerton, is of course right—the NHS must take a patient-centred approach when planning and delivering services, and that would naturally include having regard to an individual’s beliefs where relevant. It is exactly this position that the Bill will replicate for local authorities when they plan and deliver care and support. To support the NHS in fulfilling its functions the Department of Health has produced best-practice guidance on NHS chaplaincy but I struggle to understand how that can equate to a duty in primary legislation on local authorities to promote spiritual well-being as my noble friend would have it.
Lord Framlingham (Con): I am minded to vote for the amendment but perhaps the Minister can explain why there is a great deal of difference—or any difference —between the National Health Service and local government in terms of patient care.
Earl Howe: I tried to explain that there is none. There is no primary duty in statute on the National Health Service to promote spiritual well-being, which is why we are trying to make the Bill entirely consistent with that position. We have aimed for a system built around individuals and I have tabled my amendment to make absolutely clear that a person’s beliefs, spiritual or otherwise, should be taken into account in this personalised approach to care.
As noble Lords may expect, I asked my officials to consider my noble friend’s proposal and whether anyone could benefit under his amendment who would not do so under the Government’s amendment. The advice that I received is clear that no such example can be
found. I struggle to understand why my noble friend might feel it necessary to divide the House on this matter if he is minded to do so.
Baroness Knight of Collingtree (Con): Does my noble friend appreciate that only very recently we were given a sharp lesson? Unless a law is clear in its wording for those who have to live by it, any interpretation can be put on it. He will well remember what has happened regarding the Abortion Act. Because it was not thought necessary at the time to put certain wording in, it is assumed that it is legal to ignore it.
Earl Howe: I agree with my noble friend, which is precisely why I am resisting the word “spiritual”. I do not think that that is a concept that is well defined in law and I think that it could give rise to enormous confusion. It is for that very reason that I am resisting the suggestion of my noble friend.
I hope that noble Lords will agree that my amendment achieves the aim of ensuring that a person’s beliefs, including those of a spiritual nature, are taken into account where that is important to the individual concerned. I propose that local authorities may promote an individual’s spiritual well-being by taking their beliefs into account, while avoiding any negative consequences. I hope that the House will agree not to follow my noble friend in this instance.
Lord Hamilton of Epsom: My Lords, I must say that my noble friend has put before us a rather fine argument. It strikes me that if we are saying that spiritual needs cannot be named, but that on the other hand they are covered under the expression of taking into account “beliefs”, that does not hold a lot of water. I very much take my noble friend’s point—we must make this absolutely clear. People must understand the legislation. I do not think that just putting in “beliefs” will necessarily mean much to people. I am sure that “spiritual well-being” would mean something to people. As I said in my opening remarks, I think that it would give great reassurance. In the circumstances, I must test the opinion of the House.
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Contents 96; Not-Contents 271.
CONTENTS
Alton of Liverpool, L.
Anderson of Swansea, L.
Blair of Boughton, L.
Blood, B.
Brookman, L.
Browne of Belmont, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Christopher, L.
Clancarty, E.
Clarke of Hampstead, L.
Cormack, L.
Craig of Radley, L.
Davies of Coity, L.
Donaghy, B.
Elder, L.
Elton, L.
Emerton, B. [Teller]
Erroll, E.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Fellowes, L.
Flight, L.
Framlingham, L.
Gordon of Strathblane, L.
Goudie, B.
Grantchester, L.
Griffiths of Fforestfach, L.
Grocott, L.
Hamilton of Epsom, L. [Teller]
Hardie, L.
Harries of Pentregarth, L.
Haskel, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hilton of Eggardon, B.
Hollick, L.
Hollins, B.
Hoyle, L.
Imbert, L.
Janner of Braunstone, L.
Jones, L.
Judd, L.
Kennedy of The Shaws, B.
Kerr of Kinlochard, L.
Kilclooney, L.
Kingsmill, B.
Kirkhill, L.
Knight of Collingtree, B.
Lea of Crondall, L.
Leitch, L.
Levy, L.
Lichfield, Bp.
Listowel, E.
McAvoy, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
Mar, C.
Martin of Springburn, L.
Masham of Ilton, B.
Monks, L.
Morgan, L.
Morris of Handsworth, L.
Moser, L.
Noon, L.
Norwich, Bp.
O'Loan, B.
Ouseley, L.
Palmer, L.
Paul, L.
Pendry, L.
Plant of Highfield, L.
Powell of Bayswater, L.
Prashar, B.
Prosser, B.
Radice, L.
Richard, L.
Ripon and Leeds, Bp.
Rooker, L.
Rowlands, L.
Sandwich, E.
Scotland of Asthal, B.
Smith of Leigh, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Touhig, L.
Waddington, L.
Wall of New Barnet, B.
Walpole, L.
Walton of Detchant, L.
Warnock, B.
Wigley, L.
Williams of Baglan, L.
Williams of Elvel, L.
Winston, L.
NOT CONTENTS
Aberdare, L.
Addington, L.
Ahmad of Wimbledon, L.
Allan of Hallam, L.
Allenby of Megiddo, V.
Andrews, B.
Anelay of St Johns, B. [Teller]
Armstrong of Ilminster, L.
Ashdown of Norton-sub-Hamdon, L.
Ashton of Hyde, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Bakewell of Hardington Mandeville, B.
Barker, B.
Bates, L.
Beecham, L.
Benjamin, B.
Berridge, B.
Best, L.
Bichard, L.
Bilimoria, L.
Black of Brentwood, L.
Blackstone, B.
Bonham-Carter of Yarnbury, B.
Boothroyd, B.
Borrie, L.
Borwick, L.
Bourne of Aberystwyth, L.
Bowness, L.
Brabazon of Tara, L.
Bradshaw, L.
Bridgeman, V.
Brinton, B.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Caithness, E.
Campbell of Surbiton, B.
Carrington of Fulham, L.
Carter of Coles, L.
Cathcart, E.
Cavendish of Furness, L.
Chidgey, L.
Clark of Windermere, L.
Clement-Jones, L.
Coe, L.
Collins of Highbury, L.
Colwyn, L.
Condon, L.
Cope of Berkeley, L.
Courtown, E.
Craigavon, V.
Crickhowell, L.
Curry of Kirkharle, L.
De Mauley, L.
Dear, L.
Deech, B.
Deighton, L.
Dholakia, L.
Dixon-Smith, L.
Dobbs, L.
Doocey, B.
Drake, B.
Dubs, L.
Dundee, E.
Dykes, L.
Eaton, B.
Eccles, V.
Edmiston, L.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulks, L.
Fearn, L.
Fink, L.
Fookes, B.
Forsyth of Drumlean, L.
Foulkes of Cumnock, L.
Freeman, L.
Freud, L.
Gale, B.
Garden of Frognal, B.
Gardiner of Kimble, L.
Geddes, L.
German, L.
Gibson of Market Rasen, B.
Glasgow, E.
Glendonbrook, L.
Gold, L.
Goodlad, L.
Grade of Yarmouth, L.
Greengross, B.
Greenway, L.
Grender, B.
Griffiths of Burry Port, L.
Hamwee, B.
Hanham, B.
Hanworth, V.
Harris of Haringey, L.
Harris of Richmond, B.
Haworth, L.
Hayman, B.
Henley, L.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Abinger, B.
Hodgson of Astley Abbotts, L.
Hollis of Heigham, B.
Horam, L.
Howarth of Breckland, B.
Howe of Idlicote, B.
Howe, E.
Howell of Guildford, L.
Howie of Troon, L.
Hughes of Woodside, L.
Humphreys, B.
Hunt of Kings Heath, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hussain, L.
Inglewood, L.
James of Blackheath, L.
Jay of Paddington, B.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Birmingham, L.
Jones of Cheltenham, L.
Kennedy of Southwark, L.
Kirkwood of Kirkhope, L.
Knight of Weymouth, L.
Kramer, B.
Laming, L.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lexden, L.
Lindsay, E.
Linklater of Butterstone, B.
Lipsey, L.
Liverpool, E.
Livingston of Parkhead, L.
Loomba, L.
Lucas, L.
Luce, L.
Luke, L.
Lytton, E.
Macfarlane of Bearsden, L.
MacGregor of Pulham Market, L.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
MacLaurin of Knebworth, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Mallalieu, B.
Manzoor, B.
Marks of Henley-on-Thames, L.
Marlesford, L.
Maxton, L.
May of Oxford, L.
Meacher, B.
Methuen, L.
Montrose, D.
Morgan of Ely, B.
Morgan of Huyton, B.
Morris of Bolton, B.
Nash, L.
Neville-Jones, B.
Neville-Rolfe, B.
Newby, L. [Teller]
Newlove, B.
Nicholson of Winterbourne, B.
Northbrook, L.
Northover, B.
Nye, B.
O'Cathain, B.
O'Neill of Clackmannan, L.
Oppenheim-Barnes, B.
Paddick, L.
Palmer of Childs Hill, L.
Palumbo, L.
Parminter, B.
Patel of Bradford, L.
Patel, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Pitkeathley, B.
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Popat, L.
Purvis of Tweed, L.
Quin, B.
Quirk, L.
Randerson, B.
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Rea, L.
Renfrew of Kaimsthorn, L.
Ribeiro, L.
Ridley, V.
Risby, L.
Roberts of Llandudno, L.
Robertson of Port Ellen, L.
Rogan, L.
Roper, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Saatchi, L.
St John of Bletso, L.
Scott of Needham Market, B.
Seccombe, B.
Selkirk of Douglas, L.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Shaw of Northstead, L.
Sherbourne of Didsbury, L.
Shipley, L.
Simon, V.
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Soley, L.
Soulsby of Swaffham Prior, L.
Spicer, L.
Stedman-Scott, B.
Stevens of Kirkwhelpington, L.
Stewartby, L.
Stoneham of Droxford, L.
Storey, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Suttie, B.
Taverne, L.
Taylor of Bolton, B.
Taylor of Holbeach, L.
Tenby, V.
Teverson, L.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tomlinson, L.
Tonge, B.
Tope, L.
Trees, L.
Trefgarne, L.
True, L.
Trumpington, B.
Tugendhat, L.
Tunnicliffe, L.
Turner of Camden, B.
Tyler of Enfield, B.
Tyler, L.
Ullswater, V.
Verma, B.
Vinson, L.
Wade of Chorlton, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Wilcox, B.
Wilkins, B.
Willis of Knaresborough, L.
Wilson of Tillyorn, L.
Wood of Anfield, L.
Wrigglesworth, L.
Young of Hornsey, B.
Young of Norwood Green, L.
Younger of Leckie, V.
4.11 pm
Clause 4: Providing information and advice
3: Clause 4, page 5, line 5, at end insert—
“( ) Regulations must set out how local authorities should facilitate access to financial advice regulated by the Financial Conduct Authority for those adults likely to benefit from it.”
Lord Lipsey (Lab): My Lords, I remind the House of my interest as the unremunerated president of the Society of Later Life Advisers. Why has this matter come up again at Third Reading? It is because there were discussions in progress between the Minister, the two co-signees of this amendment and me, which had not yet concluded and the Minister generously agreed that we could bring it up at Third Reading. I think that the time has been well used. Certainly on the principles of the matter there is now complete accord between the Minister and ourselves. We are all agreed that taking financial advice must not be compulsory but equally we are agreed that it is not enough for the local authority just to hand over a list of names of advisers and say, “Take it from there”. In the fashionable words of today, we are agreed that they have to be nudged into doing what is invariably in their own interests as well as that of the council.
We are agreed that there is an important role for independent, regulated financial advisers in this field. We are agreed—despite the fact that I have tabled an amendment—that there is no need to put this in the
Bill: it makes very good sense to spell it out in regulations. However, we are also agreed, and the Minister will confirm this, that it would be valuable, not only for this House but for outside interests, if he were to spell out in a little more detail the Government’s intentions in this regard. We have reached a position of great harmony. I thank him for all the time he and his officials have devoted to it and the sooner the House hears from the Minister, after one or two comments, the quicker this issue will be seen to have been satisfactorily resolved. I beg to move.
Lord Sharkey (LD): My Lords, I will speak very briefly in support of the amendment. The noble Lord, Lord Lipsey, spoke with his usual clarity in moving the amendment and I shall not repeat his arguments, which seem to me to be compelling. However, I will point out that the amendment now before us is in effect the last remaining part of a discussion that started at Second Reading, continued in Committee and on Report and in private meetings with the Minister and his officials. At the start there were, broadly speaking, two concerns about information and advice. The first was about the Dilnot recommendation that there should be an extensive public awareness campaign about the facts and the implications of the cap. Our concern was essentially about the leadership, the scale and the monitoring of this campaign. I am very grateful to the Minister and his officials for all the discussions that they have had with us over this issue.
4.15 pm
I am pleased that we appear to have arrived at a satisfactory understanding. The Minister has confirmed in writing that the department has a vital role to play at national level. He has also confirmed that the department will co-ordinate the message to ensure a simple, coherent campaign. He has made it clear that the campaign will require concentrated effort and resource over a period of time. As to monitoring the effectiveness of the campaign, the Minister has again made it clear that the adult social care outcomes framework and the English Longitudinal Study of Ageing will contain the appropriate measures and questions.
I was enormously encouraged that the department has begun work on new questions for the annual health survey for England to enable us to track public awareness of these measures over time. The fieldwork for this, I understand, will be carried out in 2014 and the results will be available to us at the end of 2015, in time to establish a baseline for the information campaigns which are due to start in 2015 and 2016. However, as the noble Lord, Lord Lipsey, has said, we are still left with a concern over the provision of financial advice, and in particular over the provision, where appropriate, of independent financial advice. That is the issue addressed by the amendment. As the noble Lord, Lord Lipsey, has said, our discussions seem to indicate that there is not much, if any, real difference between the proposers of the amendment and the Government. I hope that that is the case and that the Government may be prepared to accept our amendment today or to give us reassurance that its objective will be fulfilled by other means.
Baroness Greengross (CB): My Lords, I was the third member of the delegation, so to speak, with whom the noble Earl met and I thank him for the time he put in to clarifying the issue through our amendment and his response.
I was worried about the same points as those raised by the noble Lords, Lord Lipsey and Lord Sharkey, particularly for the people who need rather different kinds of advice from that which we take for granted in financial advice. I refer to those people who might need additional advice on their housing or other needs that are broader than or slightly different to pure financial advice. The word “facilitating” is key. Local authorities must enable people, as well as they possibly can, to get the correct financial advice they need for their particular circumstances. I believe that we have arrived there and I thank my colleagues, and in particular the noble Earl, for meeting our requirements so well.
Lord Best (CB): My Lords, speaking as president of the Local Government Association, I can confirm that the LGA supports this amendment and underlines the importance of sound professional advice before people, particularly elder people with care needs, make major financial decisions, not least in relation to the use of their homes as a source of finance for meeting care costs.
Facilitating access to such advice, of course, will add to the duties and burdens on local authorities. That must be recognised, as with the implementation costs for the so-called Dilnot arrangements, in the financial settlement that central government makes with local government. The costs involved for local authorities may not be very great but they should nevertheless be acknowledged. With that point in mind, I am delighted to give firm support to the amendment. I am sure that, as always, the noble Earl will respond helpfully and wisely.
Lord Hunt of Kings Heath: My Lords, perhaps I may raise a couple of points with the noble Earl, Lord Howe, on this. First, to reinforce the point made by the noble Lord, Lord Best, about the cost falling on local authorities in providing facilitation to independent, regulated financial advice, there is a much more general point about the capacity of local authorities to implement the measures in this Bill. The Bill leaves us, albeit with many amendments, with an underlying concern about whether local authorities will have the wherewithal to implement a raft of new responsibilities over the next few years.
Secondly when the noble Earl argued against similar amendments on Report, he spoke of the concerns of local authorities that they might be held liable if they referred a person who comes under the Act to a financial adviser who subsequently gave poor financial advice. We have heard from the noble Lord, Lord Best, that the LGA supports the general thrust of my noble friend’s amendment. Can the noble Earl confirm, first, that a regulated financial adviser will be subject to FCA requirements and come under its disciplinary and regulatory codes? Secondly, can he reassure local authorities that they can offer names of regulated financial advisers in the way that I understand a
number of local authorities do at the moment without fear of subsequent action being taken against them? I was puzzled by the argument put forward on Report and it would be good to have this cleared up at this stage.
Earl Howe: My Lords, Amendment 3 brings us once again to the important matter of financial advice. As we have covered this subject at some length previously, and in the interests of time, I will endeavour to keep my response reasonably short. At the same time, I do not intend to make brevity a substitute for substance.
My discussions with the noble Lord, Lord Lipsey, my noble friend Lord Sharkey and the noble Baroness, Lady Greengross, and my officials’ discussions with the financial services industry have persuaded me that we are all seeking the same end point for financial information and advice. I believe that any apparent distance between the positions of the Government and noble Lords on this issue reflects only the way that I have expressed our intentions thus far. We want to ensure that when people take decisions about how to fund their care it is done in a considered and informed way. We agree that the local authority has a pivotal role to play in ensuring that this happens. I want to set out what I see that role as being in the hope that noble Lords will agree that we are indeed in concordance.
We believe that the local authority should take a proactive role. What does that mean in practice? Under the new system we expect many more people, a large number of them self-funders, to approach the local authority to start their meter running. This provides an invaluable opportunity for local authorities to reach out to these people and tell them about the support that is out there to help them better plan, prepare and provide for the costs of their care. It is particularly important for self-funders that this includes the relevance and the availability of regulated independent financial advice. To pick up the word in the noble Lords’ amendment, this should be a facilitative role for the local authority, providing a nudge in an appropriate direction.
In trying to define what we mean by facilitation, I wholeheartedly agree that handing out a leaflet or placing a page on a website is not sufficient. Instead, local authorities should talk to people and use the opportunity of contact with self-funders and others to give them individually tailored advice that suits their personal circumstances. They are likely to know something about a person’s financial situation and so will be able to tell them about the range of information and advice that might be most relevant to them in considering their care options, whether that is light-touch budget planning or advice from a regulated organisation. It would not be sufficient for local authorities just to tell a person about the types of information and advice available. They will also have to explain how it could be accessed and provide information to enable them to do so.
There is more work to be done before we can finalise what the guidance will say. To get it right, we will need to work collaboratively with stakeholders, including the financial services industry. We have begun to do that already and have had initial discussions and workshops involving representatives from the finance
industry. They have confirmed what we all know of some of the necessary complexity in the system, so how and at what stage a person or their family is facilitated to take up regulated financial advice will depend on how and where they have made contact to obtain information and advice. We will gather examples of best practice to inform statutory guidance to help local authorities identify the types of information and advice that different people may need, inform them of those options at the right time and help them to access them.
In addition to the call for evidence and responses to the consultation on funding reform, background work has already been undertaken over the summer that supports the development of statutory guidance. Work commissioned through the Think Local Act Personal partnership has resulted in two publications on information and advice, principles for the provision of information and advice and an interactive map evidencing the difficult pinch points in people’s typical journey through the care system.
We have commissioned detailed work with six local authorities chosen from 40 examples of current practice collected earlier this year to draw together evidence on benefits and effectiveness in developing information and advice services. A number of those examples, including West Sussex, involve directing people to regulated independent financial advice. Helpfully, the ABI has invited my officials to participate in a workshop on access to financial advice being held on 14 November, which we expect further to support the development of guidance.
I am confident that no further amendments are needed to effect what I believe is a shared ambition. The Bill sets out the framework, the skeleton if you like, but it is the statutory guidance and implementation support that will put meat on those bones. What I have set out today is what we will put into practice through guidance. This guidance will be developed in co-operation with all interests, including the Association of British Insurers and the Society of Later Life Advisers, SOLLA, which will build on the good practice that already exists in many areas. We really want this to be the product of co-development which achieves the aims that I firmly believe that the noble Lord and I share.
The noble Lord, Lord Hunt of Kings Heath, expressed concern about what I said on Report about the possibility that local authorities could be held liable in the event that a regulated financial adviser gives poor advice. He pointed out, quite rightly, that such an adviser would be covered under FCA codes, and so on. The issue here is about the local authority making a recommendation to an individual adviser. We do not consider that there is any problem with local authorities providing a list of advisers from whom a person could choose.
On the impact of local authority responsibilities, we have established a partnership with the Local Government Association and the Association of Directors of Adult Social Services and have set up a joint programme and implementation board. We have a lot of ground to cover, and I think that no one would deny that we have our work cut out over the next few months, but I can tell the noble Lord that, together, we
are absolutely committed to providing the support that is needed by local government to enable it to fulfil its functions. I hope that we have achieved a meeting of minds on this matter and that what I have said today will give the noble Lord, Lord Lipsey, sufficient reassurance to withdraw his amendment.
Lord Lipsey: My Lords, I could not have put it half as well myself. I beg leave to withdraw the amendment.
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Clause 17: Assessment of Financial Resources
Earl Howe: My Lords, it will probably be of assistance if I speak to these two amendments. In moving Amendment 4, I shall speak also to Amendment 6. These amendments are designed to correct minor drafting errors in the Bill.
Amendment 4 concerns Clause 17, which relates to financial assessment. Subsection (10) clarifies that the regulation-making power to set a financial limit allows for regulations to provide for different financial limits for different types of care and support—or support, in the case of carers. Paragraph (b) states that the regulations may set,
“different levels for different levels of support”.
The amendment would correct this erroneous repetition and ensure that it reads instead:
“different levels for different descriptions of support”.
This ensures that the regulation-making power in subsection (10)(a) mirrors the regulation-making power in subsection (10)(b).
Amendment 6 relates to transition assessments of a young carer’s needs for support in Clause 64. The other provisions containing duties to carry out transition assessments—Clauses 59 and 61—require there to be “significant benefit” to the person in question. However, this clause only talks about “significant benefit” with no mention of the individual and so is quite abstract. This was an oversight. The amendment would therefore clarify that the significant benefit must be “to the young carer”, to bring it into line with the other similar provisions.
I hope that noble Lords feel able to support these minor and technical amendments, which will help ensure that the Bill is clear and works as intended. I beg to move.
Baroness Tyler of Enfield (LD): My Lords, I rise briefly indeed to welcome Amendment 6 and what I see as the further strengthening and joining-up between this legislation and the Children and Families Bill in
relation to young carers. I particularly welcome the greater rights it gives to all young carers. I am really pleased to see the entitlements to both assessment and support for young carers as they reach that very critical age of transition at age 18. This will help because these young people often face additional barriers at that age as they are trying to access further education, employment and training, which is so important to their wider well-being and outcomes. I welcome it very much.
Clause 35: Deferred payment agreements and loans: further provision
5: Clause 35, page 31, line 20, at end insert—
“( ) The regulations may not specify any threshold of other assets above which a person is not eligible to receive a deferred payment loan.”
Lord Lipsey: My Lords, I am afraid that I cannot be so succinct this time. I might be acquitted of exaggeration if I say that the House's discovery on Report of the Government's proposed £23,250 limit on the non-housing assets people could have to qualify for the deferred payment scheme has caused something of a furore. I am not sure that Norman Lamb, the care Minister—a Minister for whom I genuinely have huge respect—will think that it was his finest hour when he described people with £23,250 in non-housing assets as quite wealthy. They may not be poor, but they are not likely candidates for the Chipping Campden set either.
My amendment would prevent the Government imposing such a limit. I have moved it in this form because we want to have a free-ranging debate this afternoon. I do not say that the matter will necessarily be resolved in this House this afternoon, and I make it clear that I am not an absolutist in this matter. The £23,250 figure is out for consultation—and following the furore a lot of people out there now know that it is out for consultation, which they did not know when it appeared in paragraph 150 of the consultation document. If at the end of that consultation, as I hope and expect, the Government decide to set a much higher figure, I shall reckon that a result.
Let us remember who this scheme is intended to help. It is not aimed at poor people who own their own homes, because they would not be sensible to avail themselves of its provisions. If they kept their homes under the scheme, they would have virtually no money in the bank and could not afford the little things that make life in a care home tolerable: presents for the grandchildren, a newspaper, sweets. At current interest rates, someone with £23,250 would have no more than £700 a year in income from that capital sum. They might have other bits of income but they are not going to be living a life of luxury in a care home off an income of £700 a year.
In arguing for the cap, the Government have tried to argue that it will not exclude most people. They claimed—or at least newspapers have reported that
they claimed—that 35,000 of the 55,000 homeowners who enter care each year have assets of less than £23,250. These figures are contestable, as all asset figures are. A very good analysis in the
Sunday Telegraph
showed that the average 75 year-old had around £100,000 in other assets—a much higher figure than the Government were putting forward. However, that is not the main point I wish to make about the claim that most people have less than £23,250. My point, which I have been raising throughout, is not that the limit would exclude most people but that it would exclude most of the people who would sensibly take advantage of the Government’s proposal. That is why I have said, and maintain, that a £23,250 cap would kill the scheme stone dead and that if that figure remains unchanged, there will be practically no takers for it.
As I have already said, it makes no sense for the poor to do it. If they went down this line, they would be left with so little cash that they would not be able to afford the luxuries of life. But let us be equally clear that it would not make any sense for anybody at the top end of the scale to do it—the Chipping Campdens with millions in the bank who Norman Lamb rightly said would be excluded. If they go into a care home they do not have to sell their home anyway—they can pay the fees out of their investment income or by selling a few shares. They could follow the famous advice that Nicholas Ridley, as Environment Secretary, gave to people who were having difficulty paying the poll tax, to sell a few pictures. A cap excluding them will do no harm since they were not going to take advantage of the scheme anyway.
I can quite see why the Government might wish to avoid promoting a scheme that could easily be portrayed—wrongly, as it happens—as giving a handout to the rich. However, the scheme as devised by Dilnot, as accepted by the Government and as amended, sadly, by the consultative document, is not aimed at the poor or at the rich. It is aimed to help people on middle incomes who have worked all their lives and saved a modest sum. That is why the Daily Mail and the Telegraph—which have appointed themselves, fairly enough, as the spokesmen for such people—have mounted their admirable campaigns against the Government’s proposed cap.
Therefore, the question is, “What cap will ensure that these people benefit?”. The answer is not—I repeat, not—£23,250. When we look for another figure, there is a logic that points us in the right direction. Why £23,250? It is an odd little figure and not something which you would dream up overnight. It happens to be the present upper limit for getting help under the means test. If you have more than £23,250 in assets, you get no help under the means test; if you have less, you get some help.
However—this is quite curious, but I can only explain the facts—the £23,250 cap is going to increase dramatically. Under the Dilnot recommendations, as embraced by the Government, the upper limit will increase to £118,000 in 2016, when the new cap on care costs comes into force. Many more people will get help with their care costs, and there will not be the current precipice whereby people who have a small amount of money—although Norman Lamb describes
them as being quite rich—will be disqualified. Instead there will be a much longer plateau stage, when people lose a little bit of money if they have more money in the bank.
If the limit is to be £118,000, it seems that the logical thing would be to say, “Let’s forget £23,250. If the new means-test limit will be £118,000, let that £118,000 also be the limit for the deferred payment scheme”. At a stroke, that would deal with the problem of middle-income people who have worked hard all their lives, while excluding the rich people who do not need help. Job done. That may not happen in this House this afternoon, but I am sure that it will be done when the Bill reaches another place.
This is all quite new stuff, which was only discovered in the past couple of weeks, and I want to make two points in conclusion. Some people worry that if we do as I suggest the scheme would impose a high cost on the state. They need not worry. Loans will be repaid in full with interest when the old person dies, and the average time in a care home is about two and a half years. So the Government’s cash flow will hardly be adversely affected for long, and the scheme certainly will not be loss-making.
The second reason why the scheme will not cost much is that not very many people would be well advised to take advantage of it. For most people it would mean either leaving their former home empty—with the roof rotting and the price that it will eventually fetch for their family, out of which the debt will have to be repaid, declining—or letting it out, which would not be easy for somebody in a care home to manage. For some people—those, for example, who have always had the dream of their children living in their house—it will be a huge comfort to see that dream realised when they go into a care home. I speak with some feeling, because my own mother, who is in a care home, has been able to give her home to her other son and that gives her, as well as him, huge pleasure.
This scheme would prevent forced sales at bargain prices when the market is particularly depressed. It would also give the old person, who might initially have said, “Well, maybe I might return home one day”, time to come to terms with the fact that that may not be so. That can take a bit of time—and some people, miraculously, can return home. The scheme would protect some people, but there will not be very many of them. I would expect the take-up to be in the low thousands, if that, and any cost to be exiguous.
Finally, some noble Lords have come up to me in the Lobby and said, “But surely it’s right that old people should use some of the assets they have accumulated in their lives to pay for their care”. This thought is reflected in the reported remarks of the noble Lord, Lord O’Donnell, about the benefits that we give to old people. I empathise strongly with that school of thought. Indeed, it is what has, entirely unexpectedly, led me to spend the past 15 years trying to stop the feeble-minded proposal of the majority on the Royal Commission on Long Term Care for the Elderly that the state should pay for free care for everybody, and then—with my noble friend Lord Warner—tackling the Government and succeeding in stopping the insane proposal of the Brown Government
that care at home should be free for all when care in homes should be paid for. I remember the stout support that I had from the Minister for that successful campaign.
I want people to contribute to the cost of their care, but I believe profoundly that a deferred payment scheme will make that easier, for it will remove an injustice from the present system and therefore pave the way to a new public-private partnership in paying for care—a stable basis on which people can plan for their old age, freed at last from fear.
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Lord Hunt of Kings Heath: My Lords, I am looking forward to the response of the noble Earl, Lord Howe, and hope that he can reassure the House on this point. It is important that the House should be reminded that the universal deferred payment scheme was discussed on pages 65 and 66 of the Dilnot commission report, which set out an analysis and evidence supporting its recommendations. It explained why the current arrangements and deferred payment schemes were not widely used, and why in the main report the commission recommended extending the current system to a full universal offer across the country.
In its arguments, the commission accepted that local authorities should be able to charge interest and recover their costs and that a scheme would be cost-neutral to the state, although it might require an initial cash injection. Dilnot also made it clear that the Government needed to strengthen and standardise the deferred payment scheme in the light of their decision on the level of the cap, means-testing and the contribution to general living costs.
I accept that the scheme was not intended to be generally available to the very wealthy and asset-rich. As my noble friend Lord Lipsey has so convincingly argued, though, being required to spend your assets down to £23,250 seems far too restrictive to deliver a viable scheme. Indeed, as it would be of no use whatever to people of middle income, it is very difficult to see if anyone at all is going to use the scheme. My question is: why have the Government been consulting on such a figure? Does that actually mean that they do not want the scheme to succeed? Do they recognise that it cannot possibly succeed if you have to get down to such a low figure before the scheme can apply?
My only reading of why the Government have consulted on this low figure is because of Treasury concern about the initial cash injection. Is that so? Will the Minister also acknowledge that there is a question about whether in the long term—or indeed in the short term, because the scheme will begin to pay for itself within a very short time—his department thinks that there is going to be a cost-neutral scheme? It will be interesting to hear from him about why the Government seem so cautious and have been consulting on what seems to be such a low figure.
For the reasons that my noble friend has persuasively put forward, although in the end the number of people who will use the scheme may be counted in their thousands rather than their tens of thousands, there is no doubt that having a scheme available will provide
a great deal of comfort to many people and their families, and it would be a great pity if this was going to be stillborn. We need to see a scheme that will be practical and will not squeeze middle-income people. I hope that the Minister will be able to reassure the House that the Government are having second thoughts in this area.
Earl Howe: My Lords, Amendment 5 returns us to the issue of deferred payments. I begin by saying that I welcome the opportunity to debate this subject again. Unfortunately, the Government’s position on it has been fraught with misunderstandings, and I would like to take this opportunity to dispel at least some of those.
First, I remind the House that a consultation on funding reform has been running over the past three months, and it closed last Friday. During these three months, officials have travelled across the country explaining our proposals and seeking people’s views. What we have put forward so far are proposals—something for people to consider. These are not set in stone. We will listen to what we have heard through our consultation, and indeed in this Chamber, as we develop our policies over the next few months.
The purpose of this amendment, as the noble Lord, Lord Lipsey, has explained, is to ensure that anyone—even people with assets of great monetary worth in addition to their main home—can have a deferred payment agreement. I have to make it clear that if one takes this amendment literally, I disagree with that principle. I do not think the public purse should be helping people who do not need financial support to pay their care fees. This would seem a long way from the Dilnot commission’s view that deferred payments should be used to support people who,
“would be unable to afford care charges without selling their home”.
For a person with a substantial sum in their bank account or substantial liquid savings, a deferred payment agreement might be a cheap loan—a convenience, one might say—but it would not be serving its core purpose.
I hope that we can therefore agree that the principle of having an upper threshold for non-housing assets is a sound and a necessary one. If we agree that this is a sound principle, all that is left to do is agree on an amount. Our consultation sought views on that amount. The noble Lord, Lord Lipsey, asked what was wrong with an asset threshold of £118,000. From April 2016, we are extending means-tested support for people with up to £118,000 when the value of a person’s home is taken into account in the financial assessment. This determines when an individual may be eligible for local authority support with their care costs. Deferred payment agreements are designed to help people to pay for their care costs; their ability to meet these costs in the short term will be dependent on their liquid non-housing assets rather than housing wealth. I can say to the noble Lord that we are happy to consider using a threshold of £118,000 as we analyse the consultation responses. We are happy to consider a range of figures.
The noble Lord, Lord Hunt, asked why we proposed the £23,250 threshold. We were seeking to identify those people most at risk of having to sell their
home to pay for their care. The reason we proposed £23,250 specifically is because it provides consistency with the threshold for means-tested support when the value of someone’s home is not taken into account, and with the principle that people with non-housing assets under that amount are likely to need state support to pay for their care costs. Indeed this is the same figure and the same reasoning that the previous Government applied in their White Paper. Therefore, from that point of view if no other, it is a little surprising to hear the noble Lord, Lord Hunt, arguing against it.
There is an interesting point about people with more than £23,250 in savings. About 60% of people entering residential care are state-supported, meaning that they have only limited assets. Of the remaining 40% who enter residential care as a self-funder, less than half have liquid savings of more than £23,250. This means that the proposed threshold of £23,250 excludes only the richest 15% of people entering residential care. By increasing the liquid savings threshold to £118,000, the scheme would be available to all but the richest 5% of people entering residential care. I hope that that is a helpful contextual analysis. However, I reiterate—particularly to the noble Lord, Lord Lipsey—that we are not wedded to the figure of £23,250. We will analyse the responses to the consultation before making any further decision.
To answer the question posed by the noble Lord, Lord Hunt, about whether the scheme will actually be cost-neutral, we intend and believe that in the long run the scheme will be cost-neutral. We have committed £330 million to fund the implementation of the cap cost system, and deferred payments to cover the initial set-up costs.
I hope that in the light of what I have said the noble Lord will, on reflection, agree that his amendment would be undesirable as drafted and that he will be content to withdraw it.
Baroness Oppenheim-Barnes (Con): Before the Minister sits down, will he confirm that if a house has to be sold, after the repayment of the debt, the proceeds remain the property of the person whose house was sold? Would it be possible for the potential beneficiaries to pay the debt in advance so that the house does not have to be sold?
Earl Howe: My understanding is that the short answer is yes. There is no reason why potential beneficiaries should not use other moneys to pay the debt, in which case the legal charge over the house would be released by the local authority.
Lord Lipsey: My Lords, I thank the Minister for his reply. It is tempting to go further into the minutiae of these issues, but I think I have been in politics long enough to recognise when a Minister is elegantly preparing for a government retreat. Believing that we have just heard an exemplar of such a speech, I beg leave to withdraw the amendment.
Clause 64: Assessment of a young carer’s needs for support
Clause 75: Prisoners and persons in approved premises etc.
7: Clause 75, page 68, line 14, at end insert—
“( ) Within one year of the coming into force of this section, the Secretary of State shall report to Parliament on the discharge by probation trusts of their responsibilities for safeguarding adults residing in approved premises.”
Lord Patel of Bradford (Lab): My Lords, I once again thank the Minister for taking time to speak to me last week about my continued concerns in respect of ensuring that adults detained in prison or residing in approved premises have the same protection and care as all other vulnerable adults when it comes to safeguarding inquiries by local authorities.
Clause 75(7) expressly excludes adults detained in prison and those residing in approved premises from the Section 42 duty on local authorities to carry out safeguarding inquiries. I spoke about this on Report believing that it is a serious gap in the Bill in providing safeguards and protection to some of the most vulnerable people in our communities and prisons. On Report, I sought clarification about who would be responsible for carrying out safeguarding inquiries in prisons and approved premises, such as bail hostels. The response I received from the Minister was:
“Prison governors and directors, and the probation trust in the case of approved premises, are responsible for safeguarding prisoners … Her Majesty’s Chief Inspector of Prisons and the Prison and Probation Ombudsman require assurance that safeguarding procedures are in place and their implementation provides equivalent protection to that available in the community”.—[Official Report, 16/10/2013; cols. 623-4.]
In response to my specific question about approved premises, the Minister said that probation trusts have responsibility for carrying out safeguarding inquiries. I was a bit concerned by that response, but I accepted it. I decided to seek further clarification about how it would work in practice in local areas. What I found raised more issues and questions, which I shall briefly outline. I should say that I am very grateful to Jenny Talbot and her team at the Prison Reform Trust for their continued support and expert guidance on this matter.
I fully support the concept that all prisons and approved premises should have their own arrangements for safeguarding that include a comprehensive policy understood by all staff and should ensure that vulnerable adults are identified and given appropriate support
within the local authority safeguarding process. I remain uncertain about what the Minister said about probation trusts having the responsibility for carrying out safeguarding inquiries in respect of adults residing in approved premises, so I sought further expert legal advice from people in the field. I was categorically assured that local authority safeguarding duties and, indeed, other community care duties extend to approved premises within the local authority area.
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While this is not explicitly settled in statute, it follows from the policy that the primary responsibility for safeguarding adults is with local authorities, as clarified in No Secrets, the Department of Health guidance document on protecting vulnerable adults in care. Therefore, in relation to safeguarding inquiries in approved premises, the local authority should be the lead co-ordinating agency working with the relevant probation trust and any other appropriate agencies to investigate cases and co-ordinate action.
I initially proposed that the Care Bill should formalise that position with an explicit clause imposing a duty on both prisons and probation trusts to co-operate with the statutory safeguarding lead local authority. However, in response to the Minister’s statement about probation trusts having this responsibility, I have tabled an amendment to ask that the Secretary of State report to Parliament within one year of this clause’s coming into force how probation trusts have discharged their responsibilities for safeguarding adults residing in approved premises.
Since tabling this amendment, I have learnt that the Government may be introducing measures to abolish probation trusts as early as 2014. This clearly poses another issue and lots more uncertainty. I would be very grateful if the Minister could comment on what would happen to vulnerable adults living in approved premises who are being abused or are at risk of being abused if no agency has a clear mandate for carrying out a safeguarding inquiry, or if staff in that agency are preoccupied by the proposed changes and anxious about their future.
I also want to put on record my continued concerns and anxieties with respect to safeguarding inquiries for vulnerable adults in prison. When I sought advice from a range of experts, what I discovered was extremely worrying. The Prison Reform Trust informed me that it could not find any PSI or PSO related to adult safeguarding that specified prison responsibilities. There does not appear to be explicit identification of the role of prison in adult safeguarding outside the general expectation to develop appropriate policies and procedures. The Prison Reform Trust also reported that, although most health and social services have an adult safeguarding policy, most prisons lack a cohesive, whole-prison approach to identify vulnerable adults and lack the training skills and local links with the safeguarding adults boards to carry out effective safeguarding inquiries.
I strongly argue that denying people in prison and people in approved premises the benefit of an inquiry by a local authority when safeguarding concerns are raised places an already vulnerable group of individuals at even greater risk. We must ensure that all people
living in the community, including people in approved premises, have this equivalence of care. I ask the Minister to accept my amendment if my concerns are not justified or, better still, to impose a duty on probation trusts and local authorities to share the specific responsibility for providing safeguarding inquiries for people in approved premises. I also ask that he extend that to prisons. I beg to move.
Lord Ramsbotham (CB): My Lords, I support the noble Lord, Lord Patel, because I agree that this is an extremely worrying issue. Focusing on prisons, there is an increasing number of elderly prisoners, as has been reported, and it is quite clear that the prison medical authorities are not capable of looking after all their needs. For example, people have talked about dementia and other problems of increasing age, and it is of concern that those people are not being properly looked after.
I am also very concerned about the use of the words “probation trusts” because they are about to go. According to the Transforming Rehabilitation agenda, which the Ministry of Justice has released, they are to be replaced by directors of rehabilitation in various parts of the country and/or private companies acting as rehabilitation companies responsible for services. What we do not know from the Ministry of Justice is exactly how many people are to stay with the existing probation service, which has been given a lot of responsibilities that do not include running probation hostels, which is currently a probation responsibility. Nor have I seen any mention of this accommodation in the transforming rehabilitation agenda that has been produced. Therefore, this matter needs following up. Within a year would be a very useful timeframe, because it would allow a follow-up of what is happening in the Ministry of Justice to be conducted.
Baroness Wheeler (Lab): My Lords, from what my noble friend Lord Patel has said, it is clear that the issue of safeguarding inquiries is not at all sorted. He has highlighted a substantial gap in the Bill that could have a very serious impact on some of the most vulnerable people in our communities and prisons. He rightly seeks equivalence of care and protection for adults detained in prison and those residing in approved premises such as bail hostels—care and protection that all other vulnerable adults have when it comes to safeguarding inquiries by local authorities. We take on board his deep concerns about prisons and what appears to be a lack of co-ordinated and clear responsibilities in respect of safeguarding inquiries. I ask the Minister to look further into the matter, as my noble friend suggested.
My noble friend raises some key issues on whose responsibility it is to carry out a safeguarding inquiry for adults living in the community in approved premises. Given all the uncertainty about future service delivery as a result of the Government’s major reorganisation and break-up of the probation service, if that responsibility is currently with the local probation trust, this amendment, which calls on the Secretary of State to report to Parliament within one year of this clause of the Bill coming into force, becomes even more necessary.
To require the new community rehabilitation companies or their successor bodies to account for how they have discharged their responsibilities for safeguarding adults residing in approved premises is an acceptable way forward.
I look forward to hearing from the Government about how they intend to deal with the matter in the light of the serious concerns expressed by my noble friend today and in previous discussions on the Bill, and in light of the huge confusion that will result from the proposed changes to the probation service. I very much hope that the Minister will be able to support my noble friend’s endeavours to fill what is potentially a serious gap in the Bill, and to ensure future adequate protection of these vulnerable adults.
Earl Howe: My Lords, I will begin by making absolutely clear that we agree that all prisons and approved premises should have arrangements for safeguarding the adults in their care. They should have a comprehensive policy that is understood by all staff and which ensures that vulnerable adults are identified and given appropriate support. I hope that we also agree that we cannot relieve prisons and probation providers of their duty of care by imposing a duty on a local authority to make safeguarding inquiries into suspected abuse or neglect in a prison or approved premises.
We need clear guidance for prisons, probation providers and local authorities to ensure that the procedures within prisons and approved premises are informed by best practice and local expertise. My officials will work with the Ministry of Justice and the National Offender Management Service, together with the Association of Directors of Adult Social Services and other stakeholders, such as the Prison Reform Trust, to develop instructions and guidance for prisons, probation providers and their local authorities. Those instructions and guidance will be in place by the time the Bill is implemented and will give improved clarity about the Prison Service and probation providers’ roles and responsibilities in safeguarding adults in their care, including the need to have a whole-institution approach to safeguarding, and cover their relationship with the local safeguarding adults board.
The Ministry of Justice encourages prison and probation staff to be involved with local safeguarding adults boards. The guidance on how safeguarding should be carried out in conjunction with local authority partners can draw attention to the duty in Clause 6 that local authorities and their partners must co-operate in the exercise of their respective functions relating to adults with needs for care and support. The guidance will be consistent with the broader advice and guidance on safeguarding adults in the community to ensure that good practice on safeguarding policies and inquiries is routinely shared.
In addition, the guidance will set out clearly the need for locally agreed relationships with local safeguarding boards, including clear local protocols around the circumstances for involvement of local SABs. The guidance will also make clear how prison and probation staff can benefit from the expertise of social services and local authority safeguarding teams.
For approved premises, the probation provider has a clear responsibility in relation to safeguarding but there is nothing to prevent it seeking advice from either the safeguarding adults board or the local authority safeguarding team. This already happens in many areas. Since a local authority’s duties in relation to safeguarding would not extend to safeguarding adults who are at risk of abuse or neglect by reason of their detention or their offence, a joint approach would be much more effective where there is a particularly difficult safeguarding challenge in an approved premises.
Her Majesty’s Inspectorates of Prisons and Probation and the Prisons and Probation Ombudsman will take account of the guidance and local agreements and make recommendations for improved practice, if relevant, when inspecting services and investigating complaints within the prison and probation services.
I wish to be clear in answering the noble Lord, Lord Patel of Bradford, who said that the document No Secrets said that local authorities have responsibility for safeguarding in approved premises. Local authorities do not have a statutory duty at the moment. It is the duty to conduct inquiries that will not apply—not that local authorities cannot conduct an inquiry if invited to by the probation trust or provider. Guidance and probation instructions will provide further detail on how local authorities and probation trusts, as they currently are, can work together at a local level. The guidance will go to all probation providers who run approved premises. Probation services will be contracted out in due course, so these will be approved premises provided by the probation service and by voluntary or private providers. The guidance will make it clear that the provider running the accommodation has a duty of care and a safeguarding responsibility.
I hope that, with those assurances and clarifications, the noble Lord will feel able to withdraw his amendment.
Baroness Masham of Ilton (CB): My Lords, how will the Government ensure that the guidance is carried out? Would a report not be useful?
Earl Howe: My Lords, the Ministry of Justice will want to ensure that the guidance is adhered to and the department will have oversight of the way that this works in practice, as the noble Baroness might expect. As I say, there is best practice already out there; we want to build on what we know works, with joint working across the prison and probation services and local authorities.
Lord Patel of Bradford: My Lords, I thank the noble Earl for taking time to talk to me about these concerns and providing a comprehensive response. I am really pleased about the guidance that is going to be produced and shared. The noble Earl said that comprehensive policies and procedures are in place, and I should say for clarity that I have no argument with that. A number of institutions do not have them in place and that is where the guidance will come in handy.
However, I have no desire to see the local authority relieving the prison or probation trust of any duty of care. What I was saying—although it is probably a play on words—was that the No Secrets guidance
seems to suggest that a local authority is probably the only agency that would investigate or inquire into a safeguarding issue. I am not saying that probation trusts will not do so but the feeling is that that duty falls on the local authority at the moment. My big anxiety is that Clause 75(7) expressly states that Section 42 should not apply. The Bill therefore actually states that local authorities should not carry out a safeguarding inquiry for people in prison or approved premises. The fact that it says in the Bill that they should not do it, but at the same time we are giving guidance to say that if everybody works together it should be okay, leads me to ask the Minister how we square that circle. It gives an awkward flavour to the debate. I hope that the noble Earl is willing to go back and have a look at both the guidance and the clause, as I believe that that is where the problem lies.
As regards safeguarding adults boards, I am very pleased that the noble Earl has said that prisons and probation trusts should join the safeguarding boards. Initially the Bill said that they should not be forced to do so. Then it was drafted to say that they “may” do so. I suggest that they should. This is crucial, as the noble Lord, Lord Ramsbotham, said, as otherwise their skill base is missing.
Those two areas are crucial. I do not know what will happen if and when the probation trusts are abolished, and what problems that will cause, but at least the amendment requiring that there is a report within a year will give us that information.
Earl Howe: I am most grateful to the noble Lord. For clarification, the provision that he has cited says that the duty to conduct an inquiry does not apply. It does not say that local authorities should not conduct an inquiry. I think that that is an important distinction.
Lord Patel of Bradford: The fact that we each have looked at that provision in a different light suggests that it may be useful to look at that again when the guidance is produced so that we are very clear and we give local authorities the confidence to play the lead in co-ordinating this.
I again thank the Minister for taking away all the issues and re-examining them. I beg leave to withdraw the amendment.
A privilege amendment was made.
Bill passed and sent to the Commons.
Arrangement of Business
Announcement
5.17 pm
Lord Popat (Con): My Lords, there are 39 speakers today for the Second Reading of the Bill. If Back-Bench contributions are kept to a maximum of six minutes, the House should be able to rise at around 10 pm tonight.
Baroness Smith of Basildon (Lab): My Lords, it is rather unusual to start a debate on Second Reading at 5.15 in the evening. Many Members of your Lordships’ House will have important contributions to make, so while we appreciate the guidance and will do our best to stick to it, it seems rather unfair given the importance of the issues before us this evening.
Lord Popat: I accept what the noble Baroness says. If we extend the limit to seven minutes we should be able to finish by around 10.20 pm. Would that be okay?
Baroness Smith of Basildon: My Lords, it is not for me to advise noble Lords on how long they wish to speak. I was not trying to correct the noble Lord. The point I made is that many noble Lords have spent a long time preparing their comments on a very important Bill and will be disappointed that Second Reading started at this late hour. If there were a normal amount of time, even 10 minutes for each speech would take us beyond midnight. I am not asking for a change to the guidance but want to put on record that it is difficult for noble Lords who have prepared speeches on such an important issue. However, I do not wish to detain the House.
Lord Dholakia (LD): My Lords, I endorse what the noble Baroness said. It has taken a lot of time to prepare our contributions and I hope that the Minister understands that this is an advisory limit.
Lord Popat: I accept what my noble friend said, but I ask that noble Lords try to keep contributions to a maximum of six or seven minutes. That would help Peers who would like to go home earlier than 10.30 pm.
Anti-social Behaviour, Crime and Policing Bill
Second Reading
5.19 pm
Moved by Lord Taylor of Holbeach
That the Bill be read a second time.
The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con): My Lords, this Government have worked to cut crime and to reform the police, and our reforms are working. The most recent report of the independent Crime Survey for England and Wales was published earlier this month and shows that crime continues to fall. In the year to the end of June 2013, overall crime fell by 7% to the lowest level since the survey began in 1981. However, we cannot be complacent. Last year there were still 2.2 million incidents of anti-social behaviour, with 28% of adults having personally experienced or witnessed such behaviour. As we know, often the most vulnerable members of our communities are most affected by these problems.
Across the country the police, local authorities, social landlords and others are working hard to stop anti-social behaviour using a combination of informal and formal interventions. However, in order to protect
victims and communities, they must have the right tools available to them. It is clear that the many existing statutory powers in this area are inadequate and ineffective. Anti-social behaviour orders, in particular, have not worked overall. More than half of them have been breached at least once and just over 40% have been breached more than once. That is why the Government have brought forward a new, streamlined, more flexible set of powers in this Bill.
The criminal behaviour order and the injunction to prevent nuisance and annoyance will replace the anti-social behaviour order and a number of other existing orders, and can be used to stop anti-social behaviour by individuals. Importantly, it will also be possible for the courts to attach “positive requirements” to help perpetrators address the underlying causes of their actions. The injunction is a wholly civil measure and is intended to be used to address problems quickly, before they escalate. The criminal behaviour order will be available for more serious cases where an individual already has a criminal conviction, although it will also be preventive in nature. Tough sanctions will be available to deal with breaches of the injunction or the order.
The new dispersal power will enable the police to move people on where they are causing problems at particular locations. The community protection notice, the public spaces protection order and the new closure power will deal with environmental anti-social behaviour which affects the community’s quality of life or ability to enjoy or access particular places. Part 5 of the Bill will strengthen the powers of landlords to seek possession where tenants blight the lives of their neighbours.
With these new powers the Bill contains important safeguards, including, in appropriate cases, judicial oversight. Such powers are necessarily always a balancing act between the rights of individuals who may be on the receiving end of an injunction, notice or order and those of the wider community who do not want their lives blighted by anti-social behaviour. We believe that the Bill gets that balance right.
Part 6 will empower local people through two measures: the community remedy and the community trigger. The remedy will ensure that victims have a say in the out-of-court sanctions used for low-level anti-social behaviour. The community trigger will empower victims to hold agencies to account for their response. Where a victim is suffering from persistent anti-social behaviour or feels that previous complaints have been ignored, the community trigger will require local agencies to conduct a joint review of the response. That is not to say that agencies do not need to act until there have been several complaints or until the trigger is used. We continue to expect that every complaint should receive an appropriate response. However, it is important that victims have this safety net for when things go wrong. I believe that, taken together, these reforms will focus the response to anti-social behaviour on the needs of victims and their communities, ensure that professionals are able to protect the public quickly and effectively, and tackle the underlying drivers of anti-social behaviour.
I now turn to the issue of irresponsible dog ownership. There are two broad elements to the Bill’s provisions here. The first is primarily preventive. The anti-social behaviour powers that I have described will allow agencies—local authorities and the police—to address
emerging problems. For example, when a dog causes a nuisance because it has not been trained properly, the owner could be required to keep it on a lead and attend training classes. The Bill also makes amendments to the Dangerous Dogs Act 1991 to strengthen the response where a dog presents a risk to public safety. This includes extending to all places the Section 3 offence of owning or being in charge of a dog that is dangerously out of control. Your Lordships will all be aware of the recent tragic case in which attacks took place at the owner’s home and therefore no prosecution could be sought under the Dangerous Dogs Act. These provisions seek to address that gap.
Noble Lords will also be aware of the debate in the House of Commons on the penalty for this offence. There was a broad consensus that the existing two-year maximum penalty for the aggravated offence is inadequate. I can now confirm that the Government will bring forward an amendment in Committee to increase the maximum penalty to 14 years in a case involving the death of a person, to five years where a person is injured and to three years in any case involving the death or injury of an assistance dog.
I now turn to firearms. Part 8 strengthens the law in respect of illegal firearms to target the middle men who supply weapons to street gangs and organised crime groups. While gun crime is thankfully relatively rare in this country, when it does occur it has a devastating effect on its victims, their families and communities. The evidence suggests that a reasonably small number of weapons are used in these crimes, with middle men hiring out guns to criminals. The Bill will accordingly introduce a new offence of possession of a prohibited firearm for sale or transfer. It will also increase the maximum penalties for the illegal importation, exportation and manufacture of firearms to life imprisonment.
I turn now to sexual offences. Part 9 of the Bill brings me to measures to protect children and vulnerable adults from sexual harm. These provisions respond to an independent report by Hugh Davies QC and to amendments proposed in the House of Commons by Nicola Blackwood MP, supported by 67 other Members of that House. They seek to address serious weaknesses in the existing regime of civil preventive orders under the Sexual Offences Act 2003. Taking a similar approach to the one we have taken to anti-social behaviour, Part 9 rationalises and strengthens the powers available. Three existing orders will be replaced by two new ones: the sexual harm prevention order and the sexual risk order. They can be used where a person poses a risk, either following conviction for a relevant offence in the case of the sexual harm prevention order, or without a conviction for the sexual risk order. Both orders may impose restrictions that a court considers necessary for protecting the public from sexual harm. For example, restrictions could be placed on foreign travel. The new orders will be more flexible than the existing powers and will help professionals act to prevent harm. Our aim in making these reforms is to give enhanced protection to children and vulnerable adults, both in the UK and abroad.
Providing victims and potential victims of forced marriage with enhanced protection is also the purpose of Part 10 of the Bill. These provisions introduce new
offences of forced marriage and breach of a forced marriage protection order. The legislation will complement the important work done by the Government’s Forced Marriage Unit, charities and others to tackle the serious harm caused by forced marriage. The new offences will send a clear message that this appalling practice will not be tolerated and will ensure that those who perpetrate it face appropriate penalties.
Part 11 of the Bill includes measures that continue the important work of police reform to build on the significant steps that the Government have already taken in this area. First, it gives statutory powers to the new College of Policing to prepare regulations, codes of practice and guidance to support its role in developing the professionalism of the police. Police leadership is extremely important to the future of the police and we recognise the need to recruit the brightest and the best to senior roles. In addition to the college’s work to nurture talent within our police forces, it may sometimes mean recruiting exceptional candidates from outside. Part 11 accordingly enables police and crime commissioners to appoint as chief constables officers with suitable experience in forces overseas.
The provisions in respect of the Independent Police Complaints Commission enhance its powers in order to improve public confidence in police integrity. They include the extension of the IPCC’s remit to cover private contractors used by forces and a power to require forces and other bodies to respond publicly to the IPCC’s recommendations.
Part 11 also takes forward recommendations made by Tom Winsor in respect of the mechanisms for considering police pay and conditions. It abolishes the ineffective and inefficient Police Negotiating Board and establishes in its place an independent review body to make evidence-based recommendations on officers’ remuneration. This is similar to the system already used for many public servants, including the Armed Forces and the NHS.
We are building on the role of police and crime commissioners in their local communities by conferring on them new powers to commission services for victims and witnesses. They will be best placed to determine local needs and they should be empowered to provide victims with the appropriate support.
Alongside these structural reforms to the way in which police forces and other institutions operate, Part 11 also deals with the powers used by front-line officers. In particular, it continues the work we started in the Protection of Freedoms Act to ensure that counterterrorism powers protect the public but do so in a fair and proportionate manner. The port and border security powers in Schedule 7 to the Terrorism Act 2000 are a vital part of the United Kingdom’s security arrangements and an essential tool in countering the threat from terrorism. The provisions in Part 11 will reduce the potential for these powers to be used in a way that is disproportionate or unnecessary, while maintaining their operational effectiveness. These include reducing the maximum period of detention from nine hours to six and providing for persons detained at ports to have access to legal advice. We will naturally consider very carefully any observations and recommendations made by David Anderson QC, the
independent reviewer of terrorism legislation, in his report on the examination of David Miranda, but I am sure noble Lords will agree that we should wait for his report rather than take any precipitative action.
The Government’s concern to ensure proportionality and fairness also underpins Part 12, which reforms our extradition arrangements. The Home Secretary, my right honourable friend Theresa May, announced in the summer that she would introduce legislation to reform the operation of the European arrest warrant in the UK and increase the protections offered to those wanted for extradition, particularly British citizens. Accordingly, the Bill addresses many long-standing concerns about extradition. These include introducing a bar to extradition where a judge considers it is not proportionate, measures to address the problem of lengthy pre-trial detention and making it clear that dual criminality must apply in all cases where part of the conduct occurred in the UK.
Finally, Part 13 contains criminal justice provisions and I will speak briefly about three of them. The first clarifies the test for determining eligibility for compensation where someone has been the victim of a miscarriage of justice. At present, the test is subject to definition and redefinition in case law, which has led to a lack of clarity for applicants and numerous legal challenges. The new test will provide much-needed certainty in this area by putting on a statutory basis the test that operated between 2008 and 2011. It is not our intention to reduce the number of applicants who receive compensation—which at present is around two to four a year—but we want to reduce the number of complex, expensive and generally unsuccessful legal challenges that currently arise.
The second relates to prosecutions for low-value shop theft. As I said earlier, one of the policing reforms we are making is to free up police time to focus on fighting crime. Extending police-led prosecutions—and avoiding the unnecessary passing of cases between the police and the CPS—is an important element of this work. Provisions in this part would bring a further 50,000 cases of shop theft into the scope of police-led prosecutions, empowering front-line officers and bringing retailers swifter justice.
Finally, the Bill provides that the Lord Chancellor may set fees for certain proceedings in the civil and family courts and tribunals, and for services provided by the Office of the Public Guardian, at an enhanced level above cost. Enhanced fees are a critical part of our plan to ensure the courts are properly resourced so that access to justice is maintained. In the context of the need to reduce spending and to tackle the fiscal deficit, we believe it is fair that those who use the courts, and can afford to pay, should make a greater contribution to the overall costs of these courts. The Government are not proposing specific fees now. We want to take some time to make sure our proposals are set at the right level and aim to consult on detailed proposals before the clause is considered in Committee.
I recognise that some noble Lords may have concerns that enhanced fees could lead to a denial of justice. I want to reassure the House that that will not be the case. The Lord Chancellor will continue to be under a
duty to ensure that the principle of access to justice is not denied. Fee remissions will continue to be available for those who qualify and the clause has a number of safeguards built in. However, I have no doubt that we will return to this provision, as we will many others, in due course.
The Bill covers a wide range of issues but there are a few important principles that run through it. Front-line professionals and the courts must be properly equipped to protect the public from harm. Reform must continue so that our police enjoy enhanced professionalism and public confidence. The powers exercised on the part of the state must be fair and proportionate and, perhaps most importantly, the rights and interests of victims should be central to our response to anti-social behaviour and crime. I commend the Bill to the House.
5.40 pm
Baroness Smith of Basildon (Lab): My Lords, I was almost too keen to respond to the Minister on that point.
I am grateful to the Minister for outlining the measures in the Bill in such detail. It is a long, detailed Bill of 14 parts. A Home Office Bill often seems to me to be a bit like the old-fashioned Sunday afternoon drive. You head off in one direction, take various twists and turns, never knowing quite where you are going to end up, but inevitably at some point it is down a cul-de-sac. In that regard, the Bill does not disappoint.
It was introduced into the other place with 142 clauses and seven schedules, amounting to 148 pages. It has already grown to 161 clauses and nine schedules covering 200 pages. After reading through the Commons Official Report on the Bill, I believe it is a credit to your Lordships’ House that the other place puts such great value on our scrutiny role. From all sides of the other place there were genuine concerns that debates had been curtailed by the Government and that inadequate consideration had been given to a number of issues, especially when new government amendments and clauses were tabled during the passage of the Bill but were not fully considered. By Report stage, there were 89 pages of new amendments, and clearly not enough time was allowed for full debates on each of them.
There are parts of the Bill we welcome but there are also parts which raise great concerns, sometimes because we feel that they do not go far enough in addressing the issues or they weaken existing measures. There are also omissions, but we will be backing new clauses to tackle the problems that affect public safety and security. For example, it seems strange that such a wide-ranging Bill has no measures to tackle the issue of drugs and so-called legal highs when clearly existing measures are not working. There is nothing in the Bill to prevent attacks on those working in public-facing roles.
Parts 1 to 6 on anti-social behaviour are the only parts of the Bill that received pre-legislative scrutiny, with first a White Paper and then a draft Bill scrutinised by the Home Affairs Select Committee in the other place. I should perhaps confess at this point that my response to anti-social behaviour is influenced by my 13 years as a constituency Member of Parliament. There are relatively few cases of very serious anti-social behaviour but it cannot be seen as just low-level incidents
involving noisy neighbours or naughty kids. At its worst, it is the ongoing aggravating, at times terrorising, behaviour that grinds individuals down to the point of despair and fear of even being in their own homes. That has to continue to be tackled and prevented. Action must be proportionate and effective and we must do our best to ensure that any measures have a preventive element.
The Government have often said that they oppose the one-size-fits-all approach and yet they are reducing the measures available to tackle anti-social behaviour. I am not necessarily against streamlining but I feel uncomfortable with the position of having to squeeze a number of different kinds of problems into fewer solutions. I am sure the Minister will hear from other noble Lords of their concerns about the IPNA—an injunction to prevent nuisance and annoyance—which replaces a number of measures with a civil injunction. As such, it has a weaker threshold and does not have an automatic criminal sanction.
For an ASBO to be issued it had to be considered necessary to protect members of the public from harassment, alarm or distress. The new IPNA can be issued where behaviour is,
“capable of causing nuisance or annoyance to any person”.
The court has only to be convinced that this would be just and convenient on the balance of probabilities. That is a low-level test.
There are also concerns about the criminal behaviour order, which can be issued on conviction of a relevant offence, as the Minister said, and a breach of that order is in itself a criminal offence punishable by up to five years’ imprisonment. I do not know whether noble Lords heard this week, as I did, an interview on Radio 4 with a member of a police force. I do not know whether he was from ACPO—I think he was—but he was speaking about the level of proof required for IPNAs and CBOs and whether it was appropriate. His comment was that the judge would still have to apply the test of reasonableness. That is one of the issues that worry me in a number of places in the Bill. If we do not have clarity it becomes a matter for the courts to resolve. If already the backstop is that we will have to rely on a judge or magistrate to test the reasonableness of new legislation, then your Lordships’ House must consider whether the legislation is appropriate. Surely, as the Joint Committee on Human Rights reported,
“the Government should make the appropriate standard of proof clear on the face of the Bill”.
I have two further concerns that we will probe further in Committee. The Government have long argued against ASBOs as being ineffective. I am not particularly wedded to any specific tool in tackling this problem—I would have been happy to have had meaningful discussions on effectiveness—but we could find ourselves in the position of having more IPNAs because of the weaker test, with less impact because of the weaker sanctions.
Owing to the time constraints I will not have time in my opening comments to address all the issues we will wish to pursue in Parts 1 to 6 on anti-social behaviour, but we will wish to probe further, including on the issues of tenancies and evictions, dispersal and other powers.
We welcome action on dangerous dogs and appreciate that the Government will be tabling new amendments relating to increased penalties, as promised in the later stages of consideration in the other place. However, I am not convinced that these measures fully address all the concerns that have been raised or would have prevented or dealt appropriately with some of the more serious cases we have all read and heard about.
On firearms, I am very disappointed with the inadequacy of the Government’s proposals, which do not address the serious problems. No one has the right to own a gun—it is a privilege—and those who do so have a duty to behave responsibly, and the vast majority do. However, noble Lords will know of cases. I refer specifically to the murder of Susan McGoldrick. Ms McGoldrick, her sister, Alison Turnbull, and her niece, Tanya, were murdered by Susan McGoldrick’s partner, Michael Atherton. Mr Atherton had the gun legally and yet he had a history of domestic violence and abuse.
The Government’s new guidance is welcome and I readily accept that, even with the most watertight legislation, not every abuse or tragedy can be prevented. However, we have a duty to do our best to strengthen the law and to do all we reasonably can to prevent further such tragedies. We will want to examine the presumption of refusal of licences in circumstances where there is evidence of a history of mental illness, domestic violence or drug abuse. We will also want to examine with the Minister whether the police are adequately resourced to undertake the checks and assessments required. This may also be an opportunity to examine the case put forward by the Home Affairs Select Committee nearly three years ago to bring together all the 34 difference pieces of legislation relating to firearms.
My noble friend Lady Thornton will be speaking to Parts 9 and 10 of the Bill on protection from sexual harm and forced marriage. We welcome the measures to tackle this issue. Action to improve the protection of vulnerable children at risk of sexual harm is crucial and we shall seek clarity about how these measures will apply to under 18s and probe further how they will be supported.
Forced marriage is a terrible violation and can destroy people’s lives. Effective support for victims and prevention through education and work in the communities concerned are essential. We will ask the Minister whether he considers that the level of the resources available is adequate for the work. We have concerns about such support, particularly in the light of cuts to legal aid. We believe it is right to have a discussion to make clear the case for criminalisation and to listen to all the different views expressed.
Part 11 deals with what the Government call “Policing etc”. I am always slightly nervous about the “etc” as it can allow anything that is almost relevant to be dumped in. I hope we see no more amendments under the heading of “etc”.