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Grand Committee

Monday, 31 March 2014.

Arrangement of Business


3.30 pm

The Deputy Chairman of Committees (Lord Colwyn) (Con): My Lords, welcome to the Grand Committee. If there is a Division in the House, the Committee will adjourn for 10 minutes.

European Parliamentary Elections (Amendment) Regulations 2014

Motion to Consider

3.30 pm

Moved by Lord Wallace of Saltaire

That the Grand Committee do consider the European Parliamentary Elections (Amendment) Regulations 2014.

Relevant document: 22nd Report from the Joint Committee on Statutory Instruments.

Lord Wallace of Saltaire (LD): My Lords, the first five instruments before us today are for debate together. The two sets of referendums regulations and the police and crime commissioner elections order update respectively the rules for the conduct and administration of local authority council tax referendums, referendums concerning a local authority’s governance arrangements in England, and elections of police and crime commissioners in England and Wales. In the main, they do so by applying or copying provisions in the Electoral Registration and Administration Act 2013 and associated secondary legislation, which made a number of changes to the rules for UK parliamentary elections. Noble Lords will be familiar—possibly by now very familiar—with many of these measures, which we have considered in earlier debates on instruments which apply the measures for the conduct of other elections and referendums.

The combination of polls regulations make a small number of changes to the conduct rules and forms used by voters that apply when the poll at a parliamentary election is combined with a poll at another election or referendum. The European parliamentary elections regulations clarify certain issues, mainly arising from the changes made for the conduct of European parliamentary elections by amending regulations made in 2013.

In the main, the changes introduced by all five instruments are intended to come into effect for polls held on or after 22 May 2014, which is the date of the European parliamentary elections and scheduled local elections in parts of England. The changes are designed to improve the accessibility and security of the voting

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process, and implement a number of recommendations which have been made by, among others, the Electoral Commission and the Association of Electoral Administrators.

The two sets of regulations concerning local authority council tax and governance referendums contain an additional provision on calculating the campaign expenditure limit for campaigners at these referendums. We intend that this should come into force on the day after the two instruments are made. I will set out this change in more detail shortly.

The instruments are part of a comprehensive package of statutory instruments which make various changes to the rules for conducting elections and referendums in the UK. The Government have consulted on the changes with the Electoral Commission and with others such as the Association of Electoral Administrators.

I turn to the provisions in the two sets of regulations concerning local authority council tax and governance referendums, and the PCC elections order. The two sets of referendums regulations change the basis on which the campaign expenditure limit is calculated for local authority council tax and governance referendums. It is currently calculated by reference to the number of electors on the register published after the annual canvass in the year preceding the referendum. However, under the transition to individual electoral registration, a post-canvass register was not produced in 2013. We are therefore providing that in future the limit will be calculated by reference to the register as it exists at the beginning of the referendum period. This period begins at least 28 working days before a council tax referendum, and at least 56 working days before a local authority governance referendum.

All three instruments, including the PCC elections order, update the forms used by voters, such as poll cards and postal voting statements, which are intended to make the voting process more accessible. The instruments also provide for police community support officers to enter polling stations and counting venues under the same conditions as police constables. This will allow police forces additional flexibility in deploying their resources on polling day, and allow them to provide greater visible reassurance to the public. The instruments provide that voters waiting in the queue at the close of poll at 10 pm on polling day, for the purpose of voting, may be issued with ballot papers to enable them to vote or may return postal voting statements or postal ballot papers despite the close of poll.

Members of the Committee may wish to note that relevant revisions in the Representation of the People (England and Wales) Regulations 2001 apply to the local authority council tax and governance referendums instruments, so amendments recently made to those regulations will apply also to these referendums, without the need for further changes to the referendums instruments. Further, the provisions have been copied into the Police and Crime Commissioner Elections (Amendment) Order so that they will apply to those polls. These recent amendments include a requirement for 100% of postal vote indicators to be checked rather than the current minimum of 20%; extension of emergency proxy provisions to those absent on grounds

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of business or military service; and removal of the restriction on postal votes being dispatched earlier than the 11th working day before the day of the poll.

The Police and Crime Commissioner Elections (Amendment) Order also makes changes to the timing of certain proceedings at PCC elections which will ensure greater consistency with the position at other elections and will facilitate the earlier dispatch of postal votes. In particular, the deadline for candidates to withdraw their nomination is moved from noon on the 16th working day before the poll to 4 pm on the 19th working day before the poll. This will allow postal ballot papers to be printed and therefore issued earlier than at previous elections.

I now turn to the combination of polls regulations. These regulations make a small number of changes to the conduct rules and forms used by voters that apply when the poll at a parliamentary election is combined with a poll at another election or referendum. This includes updating the notice that must be displayed in polling station compartments by making the information clearer for voters. For example, it advises voters to put a cross in the box next to their choice on the ballot paper. The instrument also updates the guidance for voters which is displayed in polling stations when a poll at a parliamentary election is combined with a poll at another election or referendum. The updated guidance gives clearer instructions to voters, including the use of images, to help voters cast their votes.

I turn now to the fifth and final instrument, the European Parliament elections regulations. They, too, make a small number of changes at European parliamentary elections. In particular, they amend the provisions that were inserted by the amending regulations made in 2013 to enable voters waiting in the queue at the close of poll to be issued with a ballot paper and cast their vote at a European parliamentary election. These provisions also enable persons queuing at the polling station at the close of poll in order to return a postal ballot paper or, if they had forgotten to put it in the covering envelope, a postal voting statement to return it.

The instrument before us today ensures that these provisions allowing the return of postal ballot papers apply when a European Parliament election is combined with another poll in England, Wales and Scotland. They also make improvements to the wording on the polling station compartment notice when a European parliamentary election is combined with another poll in England and Wales. The changes reflect the different voting instructions that it may be necessary to display if a European Parliament election is combined with a PCC election or a local referendum because these will, of course, have different voting systems.

In conclusion, these instruments make sensible and relevant changes to the conduct and administration of the polls that they cover in line with those that have been made for UK Parliamentary elections and other polls. They are designed to increase voter participation, further improve the integrity of our electoral system and ensure that the processes underpinning our elections are both more robust and more relevant to the needs of voters. I commend these instruments to the Committee.

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Lord Kennedy of Southwark (Lab): My Lords, I have only a few points to make in this short debate. Generally we support the regulations and the order and have no issues whatever with them. I have a couple of general points to make and one or two questions, but, generally speaking, we are fine with these. I will go through point by point. In terms of consultation, I think the noble Lord mentioned a couple of times consultation with the commission and with the Association of Electoral Administrators and such. Can he tell us about what consultations actually go on with the parties? I do not think much goes on. Maybe it is done through the Electoral Commission now, but I do think there should be more direct contact with the parties than there has been. I know that we have the panel meeting after the Electoral Commission’s political parties panel but I do not know whether there is more than that. There would be a surprising amount of unanimity from the parties on these things, as they have a lot of expertise that the Government could learn from. I know that the Government have some contact, but they could do more on that.

I saw in the note about the regulations on referendums that it refers to the issue about queuing at polling stations. Again, I welcome the fact that people will be issued with a ballot paper if they get there by 10 pm. My only slight worry is that while that all sounds well and good, how will it actually be controlled when it happens? We may not have this situation in the local elections happening next month, and perhaps not in the European elections, but at general election time we certainly need to think about how we will look after that. Yes, someone could arrive at 10 pm, but how is that to be controlled? It is quite hard to control and police it, and so on. The Government can make these regulations, but unless they are very specific about how things actually happen, they will just create another set of problems that cannot be overcome in a draughty church hall somewhere at 9.55 pm. If not now, the Government need to look at that sort of thing and be very specific. Presiding officers certainly need to know exactly how to handle these things; there is an issue there.

The point about police community support officers having the right to enter polling stations is, again, a sensible and welcome move. It certainly lifts a burden from police officers and ensures that there can be a uniformed presence in and around polling stations, which is very welcome. I saw that there is an extension of the proxy emergency provisions on the grounds of doing business or service. I am assuming that they are being extended in the same way as for every other category that can have an extension.

Those are probably the only points that I have. As I said, I do not have a huge issue with anything here; the instruments all seem very sensible. I will make one observation. While we will agree these regulations today, and they will go to the House next week, it is all terribly complicated and I look forward very much to the Law Commission coming forward with its recommendations so that we can get something much more streamlined. This should be a relatively simple process, but we have to have instruments for referendums,

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police and crime commissioner elections and local authority elections when it is really all the same stuff. The sooner we get this all looked at and repackaged, and put together much more sensibly, the better it will be for everyone concerned.

Lord Wallace of Saltaire: I share the noble Lord’s feeling on streamlining. There are of course some problems in that, as we have devolved authority to the devolved Assemblies, and as we have introduced a number of different electoral systems—I think there are three or four electoral systems operating now within Scotland, for example—some of this stuff becomes more complicated. We are, as the noble Lord knows, balancing between doing everything we can to make it easier for people to vote and encouraging that, and guarding against fraud. That also requires a delicate balance. However, I agree with him: I hope that it will be possible at some point to simplify the extremely complicated legislation that we now have for these different sets of elections and referendums. Referendums are, after all, still a relatively new dimension of British democracy and perhaps the next Government will take that on, with the assistance of the Law Commission.

On the particular questions that the noble Lord asked, there is no formal process for consultation with the political parties, but I understand that a number of informal conversations are had with them. I will check on that and I promise to write to the noble Lord if there is anything useful that I can say on it, because I take his point about the political parties. Miraculously, I discover that I now have an answer. We meet the Electoral Commission’s political parties panel quarterly and raise the question of new SIs being made. I expect that the noble Lord will be familiar with who attends the political parties electoral panel from the Labour Party. It may indeed have been him—yes, I see that it was.

On the closing of polls, let me say in passing that this was a very small issue last time. It happened in a total of 27 polling stations in 10 constituencies at the 2010 election, with just over 1,200 people being affected. We do not know whether this will turn out to have been a one-off or whether it will become a wider phenomenon in future. We took this decision because we had come up with this problem in 2010, and we expect that the Electoral Commission will provide additional guidance on how we manage this in the future. The noble Lord is entirely right, of course, to say that a situation in which a large number of people attempted to storm a polling station at 10 pm would be very difficult for anyone to handle. We have to hope that that sort of event will not happen. Guidance will certainly be offered to returning officers on the close-of-poll provisions and the Electoral Commission will assist with that. I hope that I have now covered most of the noble Lord’s questions. I am glad that these regulations have received a general welcome and commend them to the Committee.

Motion agreed.

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Local Authorities (Conduct of Referendums) (Council Tax Increases) (England) (Amendment No. 2) Regulations 2014

Motion to Consider

3.45 pm

Moved by Lord Wallace of Saltaire

That the Grand Committee do consider the Local Authorities (Conduct of Referendums) (Council Tax Increases) (England) (Amendment No. 2) Regulations 2014.

Relevant document: 22nd Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Local Authorities (Conduct of Referendums) (England) (Amendment) Regulations 2014

Motion to Consider

3.46 pm

Moved by Lord Wallace of Saltaire

That the Grand Committee do consider the Local Authorities (Conduct of Referendums) (England) (Amendment) Regulations 2014.

Relevant document: 23rd Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Police and Crime Commissioner Elections (Amendment) Order 2014

Motion to Consider

3.46 pm

Moved by Lord Wallace of Saltaire

That the Grand Committee do consider the Police and Crime Commissioner Elections (Amendment) Order 2014.

Relevant document: 22nd Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Representation of the People (Combination of Polls) (England and Wales) (Amendment) Regulations 2014

Motion to Consider

3.47 pm

Moved by Lord Wallace of Saltaire

That the Grand Committee do consider the Representation of the People (Combination of Polls) (England and Wales) (Amendment) Regulations 2014.

31 Mar 2014 : Column GC229

Relevant document: 22nd Report from the Joint Committee on Statutory Instruments.

Motion agreed.

Anonymous Registration (Northern Ireland) Order 2014

Motion to Consider

3.48 pm

Moved by Baroness Randerson

That the Grand Committee do consider the Anonymous Registration (Northern Ireland) Order 2014.

Relevant document: 22nd Report from the Joint Committee on Statutory Instruments.

The Parliamentary Under-Secretary of State, Wales Office (Baroness Randerson) (LD): My Lords, the order was laid before the House on 24 February. It is the first in a series of six statutory instruments to establish a scheme of anonymous registration in Northern Ireland. Four of those instruments were published for consultation in September of last year. The changes are being introduced in a series of instruments for technical reasons.

This first order extends provisions made for Great Britain in primary legislation to Northern Ireland, with amendments to reflect some differences in the electoral systems in Northern Ireland. It also makes other changes required to primary legislation for Northern Ireland, predominantly in relation to local elections. Other instruments to follow will include regulations to implement the system of anonymous registration in respect of different elections and to prescribe provisions relating to political donations by anonymous electors.

As noble Lords will know, the full electoral register lists the name and address of everyone who is entitled to vote. This is used mainly for elections and referendums but can be used for other purposes, such as the prevention and detection of crime and eligibility for jury service. It may also be seen on request by any member of the public, under supervision. Anonymous registration ensures that the names and addresses of individuals who are at risk do not appear on the full register. Those at risk may include victims of domestic violence, witnesses in certain criminal cases and other vulnerable people who wish to vote but whose safety could be compromised by the inclusion of their details on the electoral register.

As in Great Britain, individuals will qualify for anonymous registration if the safety of the applicant or of another person in their household would be at risk if the register contained their name or address. I will bring regulations before the House later this year which will detail the evidence required to show that a person is at risk. As in the draft regulations published last September, a person will be able to show that they are at risk either by presenting a court order demonstrating

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the risk or by obtaining an attestation from a senior professional—for example, someone in the police—stating that they are at risk.

If a person is shown to be at risk, the scheme works by replacing the name and address of vulnerable individuals in the register with a number. A full list of those voters will be held securely by the chief electoral officer for cross-referencing. This prevents their details being available to someone who might try to trace their whereabouts by means of the electoral register.

Anonymous registration was introduced in Great Britain by Section 10 of and Schedule 1 to the Electoral Administration Act 2006. The scheme was not extended to Northern Ireland at the time due to a number of differences in Northern Ireland that needed to be taken into account. These differences included the additional checks on identity used in Northern Ireland to prevent electoral fraud, and the operation of the jury system in Northern Ireland. However, Section 1 of the Northern Ireland (Miscellaneous Provisions) Act 2006 gave the Secretary of State the power to make equivalent provision for Northern Ireland by Order in Council at a later date.

Many of the Great Britain provisions are extended to Northern Ireland without amendment in this order, but there are four main differences between the provisions for Great Britain and those being put in place for Northern Ireland, either in this order or in the instruments that will follow.

First, the duration of an anonymous entry will be longer than it is in Great Britain. Applications for an anonymous entry must be made annually in Great Britain, in the same way as applications for registration. In Northern Ireland, an anonymous entry can last for a maximum of five years. This makes practical sense in the context of the continuous registration system in Northern Ireland. If persons do not have to reapply to be registered annually, it would be onerous to require vulnerable individuals to reapply for an anonymous entry on an annual basis. This difference is also intended to help the PSNI and other bodies manage the greater volumes of applications for attestations that are expected in Northern Ireland because of the security situation there and the number of people who may be considered at risk.

In view of the longer, five-year timeframe in Northern Ireland, this order allows the chief electoral officer to terminate a person’s entitlement to an anonymous entry in some circumstances. The regulations brought forward later this year will set out the details of how the chief electoral officer can make this determination. For example, if the chief electoral officer receives information that a person is no longer part of the household to whom the relevant evidence applies, their entitlement to anonymous registration should be reviewed.

Secondly, as noble Lords will be aware, all voters in Northern Ireland are required to show photographic identification at the polling station to receive their ballot paper. This is incompatible with the principle of maintaining a voter’s anonymity and so, under this order, those with an anonymous entry will not be able to vote in person. Instead, this order makes provision for anonymous electors to be automatically eligible for

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a postal vote. This is to prevent a person who is anonymously registered being questioned at a polling station about their identity.

Thirdly, linked to the provisions on postal voting, the order makes it possible for an anonymous elector to submit a tendered ballot paper by post. It is possible to apply for a tendered ballot paper when a person states that they have lost their ballot paper or believes someone else has voted on their behalf. However, a tendered ballot paper can usually be submitted only in person at the polling station. Persons with an anonymous entry will be allowed to submit a tendered ballot paper by post instead to prevent them being disadvantaged by the requirement to use a postal vote.

Lastly, persons with anonymous entries will remain eligible for jury service, as they are in Great Britain. However, because jury service selection operates in a different way in Northern Ireland, the provisions in this order that deal with this matter differ from the England and Wales provisions. The order ensures that any anonymous elector information is protected when the jurors list is passed from the chief electoral officer to the Courts and Tribunals Service.

There have been two phases of consultation on anonymous registration in Northern Ireland. The first was conducted by the previous Government in 2008. The second took place in 2013 on the draft legislation. The consultations have allowed us to take account of the views of a range of devolved bodies that will be involved in implementing the scheme, including the Northern Ireland Courts and Tribunals Service, the Police Service of Northern Ireland and health and social care boards, as well as political parties and groups representing those most likely to benefit from the new system.

I hope that noble Lords will agree it is important that people who wish to exercise their right to vote are able to do so without fear or threat to their safety. This order gives vulnerable people in Northern Ireland the same protection as those in Great Britain. I commend it to the Committee.

Lord McAvoy (Lab): My Lords, I am grateful to the Minister for her thorough exposition of the proposed legislation. I should say right from the start—because it always needs to be said in relation to Northern Ireland—that we are fully supportive of the legislation. My honourable friend in the House of Commons, Stephen Pound, in a very entertaining speech, asked a number of questions. Some of them were not, to my book, completely answered, so I will go through them and see if I can get a wee bit more information out of the noble Baroness.

It has been stated by the Minister and others that the necessity for this legislation in Northern Ireland is—as it is in the rest of the United Kingdom—mainly to support women in what they face when being pursued by former partners or husbands or subjected to violence. So the legislation is quite in order.

However, on the higher percentage that is envisaged, it is worth commenting that the higher percentage of anonymous voting approvals for Northern Ireland is, according to the words of Mr Robathan, 40 times greater in Northern Ireland than in the rest of the

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United Kingdom. That signifies that there is a continuing situation in which people need anonymity in voting, and the sooner we can move away from that, the better. However, the need for this legislation is still quite clear because women have enough to put up with without being subjected to that as well.

4 pm

I will follow up something that Mr Pound mentioned, which is the status of court orders from the Republic of Ireland. As noble Lords will know, people move back and forth across the border. A situation can arise in which somebody in Northern Ireland marries someone from the Republic and then moves back to the north. It is clear from what the Minister said in Committee that is not legal to mention other jurisdictions—I think that was the word used, but if not, the noble Baroness will know what I mean. There was therefore a legal bar in establishing full reciprocity. Mr Robathan, the Minister in the Commons, said that in the process of attestation great weight would obviously be given to a court order in the Republic of Ireland. Can the Minister elaborate a bit more on that? It would mean a bit more protection for people moving from the Republic to Northern Ireland if a heavy weight was given to reciprocity.

Mr Pound also mentioned another thing, which he did not seem to get an answer to. The attestation of the validity of the anonymisation approvals are directors of social work or PSNI officers of the rank of inspector or above. He made the point that there are only five directors of social work services in the whole of Northern Ireland and Wales; I do not think that anybody is sure about the number of inspectors. Is that situation okay?

Paragraph 7.4d of the Explanatory Notes says:

“There are also differences between Northern Ireland and Great Britain in the way in which persons with an anonymous entry in the electoral register are selected for jury service. Persons with anonymous entries on the register will automatically be considered for jury service, rather than the juries officer having to make a specific request for details of anonymous entries, as is the case in England and Wales”.

The key bit follows:

“Specific provision is made to protect information of anonymous electors which is disclosed as part of the jury selection process”.

How will that work? I am not clear about that. There has been consultation on this, and it has been supported, so it has to be welcomed.

I hope that we will have a wee bit more elucidation on the points raised in questions by Mr Pound, but I repeat that we are fully supportive of the Government’s proposals in this field. They are absolutely necessary, and they have our full support.

Baroness Randerson: I thank the noble Lord for his support on this. I will do my very best to answer the questions that he feels still need to be answered.

The noble Lord is right that the issue of supporting victims of domestic violence is a key mover behind the legislation. It was introduced for Great Britain very specifically at the request of groups supporting victims of domestic violence. But it is also aimed at supporting, for example, people who are part of the witness protection

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scheme. I am sure that the noble Lord will appreciate that there are far more people in that situation in Northern Ireland than in Great Britain.

There are currently 1,739 people in the anonymous registration scheme in Great Britain. My right honourable friend the Minister of State in the other place referred to the expectation that there would be around 40 times that number in Northern Ireland. This figure is based on the numbers known to have benefited from existing programmes to protect individuals at risk; for example, 1,805 individuals have benefited from the special purchase of evacuated dwellings scheme in Northern Ireland. Of course, this is just one group of eligible individuals. I mentioned the witness protection scheme earlier, but members of other groups might be judged to be at risk, such as prison officers. I could give other examples, but that one number—1,805—shows that proportionately the numbers would be around 40 times greater for Northern Ireland. Therefore, one of the reasons that the anonymous registration will apply for a five-year term is to enable those involved in the registration and attestation process to deal effectively with the number of requests that we estimate will come forward.

The noble Lord also asked whether Irish court orders would be recognised and treated in a spirit of reciprocity. It is very unusual to reference court orders from outside the UK in domestic legislation because to do so would prevent Parliament scrutinising changes to the law. The Government recognise that it is highly likely that some people at risk in Northern Ireland will be beneficiaries of an Irish court order. On the subject of domestic violence, people marrying across the border—with one partner from the Republic and one from Northern Ireland—is obviously a very common thing. Therefore, we will make clear in guidance that, when an attestation is considered, if an applicant holds a similar injunction to those listed in the order from Ireland or any other member state of the EU, an attestation will be made. It is not done in an identical manner. A court order would mean that the anonymous registration would be automatic. An Irish court order would lead to an attestation process, as I understand it. It is important to bear in mind that there is a legal issue here; that is why this is being dealt with in this way.

The noble Lord asked about the level of the staff who will make the attestations. As the number of people registered anonymously is likely to be higher than in the rest of Great Britain, it is important that attestation is seen to be no less rigorous than in Great Britain and that it is very rigorously applied. The Government remain of the view that only people who are eligible to attest applications in relation to Great Britain would also be eligible to attest applications in relation to Northern Ireland. So the process will apply at the same level in both cases. It should not be necessary, however, for people applying for anonymous registration to go in and meet the director of social work or the chief constable. We would expect applications to be considered at a lower level within the organisation, and a recommendation would then be made higher up the chain within the organisation. We have consulted the Department of Health, Social Services and Public Safety in relation to the seniority of social workers

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who will be eligible to attest applications for anonymous registration. In the case of the PSNI, the attestation will be made at the level of superintendent and above.

I hope that I have answered the noble Lord’s questions and I commend the order to the Committee.

Motion agreed.

Misuse of Drugs Act 1971 (Ketamine etc.) (Amendment) Order 2014

Motion to Consider

4.12 pm

Moved by Lord Ahmad of Wimbledon

That the Grand Committee do consider the Misuse of Drugs Act 1971 (Ketamine etc.) (Amendment) Order 2014.

Lord Ahmad of Wimbledon (Con): My Lords, this order was laid in Parliament on 5 March. If made, the order will specify two groups of new psychoactive substances from the N-BOMe and benzofuran families, as well as their simple derivatives, as drugs subject to permanent control under the Misuse of Drugs Act 1971. The order will also control a number of medicines, namely lisdexamphetamine, zaleplon, zopiclone, and tramadol. It will also reclassify ketamine under the 1971 Act.

The Government have received recommendations from the Advisory Council on the Misuse of Drugs that these drugs are being misused, or likely to be misused. In the ACMD’s view their misuse is having, or is capable of having, sufficiently harmful effects to warrant legislative action under the 1971 Act. My honourable friend the Minister for Crime Prevention was satisfied after consideration of the latest available evidence and the ACMD’s assessments that the conditions that have to be satisfied in order to place these drugs under permanent control were met.

Legislative action is necessary as a result of the potential harms identified by the ACMD. This action will send out a strong message to those who are considering experimenting with these drugs and enable us to target our public health messaging in order to protect the public. It will also enable enforcement partners to prioritise resources accordingly to tackle the availability of these drugs.

N-BOMe compounds are highly potent, new psychoactive substances that are regarded as legal alternatives to the class A drug LSD. Noble Lords will recall that a number of these compounds are currently subject to a temporary class drug order approved by the House. These compounds are permanently controlled as class A drugs under the 1971 Act. Clinically observed health effects of the N-BOMe compounds include hypertension, agitation and aggression, visual and audio hallucination and seizures. Anecdotal evidence from self-reported users also highlighted highly negative effects and unwanted feelings including confusion, shaking, nausea, insomnia, and paranoia. These compounds are extremely potent in powder and liquid form and have a high risk of overdose when misused.

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On benzofuran substances, compounds such as 5-APB and 6-ABP are marketed as legal forms of ecstasy. They are most commonly sold under the brand name Benzo Fury. Noble Lords will recall that a number of these compounds are also controlled as temporary class drugs. These compounds are being permanently controlled as class B drugs. The effects of the benzofuran compounds include insomnia, increased heart rate and anxiety, with some users reporting ecstasy-like symptoms. Several deaths and hospitalisations in the UK have been associated with the use of these compounds. There are also risks associated with the long-term use of these compounds, such as cardiac toxicity. As in previous cases, the N-BOMe and benzofuran compounds will be controlled using generic, or group, definitions which capture closely related compounds. This will reduce the risk of chemists tweaking the chemical structures of the compounds being controlled to circumvent our drug laws.

Lisdexamphetamine, a drug closely related to the class B controlled drug dexamphetamine, was introduced to the UK medicines market in March 2013. When administered orally, lisdexamphetamine gradually converts to dexamphetamine, the class B drug. Lisdexamphetamine is being controlled as a class B drug. The ACMD reports that lisdexamphetamine has the potential to occasion the physical and social harms associated with amphetamines as a group, although there may be more differences. Physical effects can include anorexia, insomnia, dizziness, headaches and hypertension. After chronic or high doses, convulsions, heart attacks, strokes and death have also been reported.

Zopiclone and zaleplon are sedatives closely related to the benzodiazepine family of drugs and zolpidem, controlled as class C drugs. The ACMD reports that the number of UK prescriptions for these drugs compared to prescriptions for benzodiazepines has been on the increase. The ACMD reports that the harms from the misuse of these two drugs include a risk of coma, respiratory depression and death associated with the use of excess doses of the drugs in combination with alcohol or other central nervous system depressants. Other reported psychosocial effects include depressed mental activity and alertness, memory loss and amnesia, and personality and mood changes through drowsiness, disinhibition, chronic paranoid behaviour and aggression. Data from the national program on substance abuse deaths—NPSAD—also suggests that these drugs play a minor role in drug-related deaths in the UK, mainly in combination with other central nervous system depressants and principally implicated in episodes of intentional poisoning. The ACMD report concludes that, due to the similarities in the chemical structure and effects of these drugs and benzodiazepines, the potential social harm from the misuse of zopiclone and zaleplon would be similar to the social harms associated with the misuse of zolpidem and the benzodiazepines.

Turning to tramadol, it is of significant medical use for treating moderate to severe pain. It has wide-ranging applications, including the treatment of chronic widespread cancer and musculoskeletal pain. However, tramadol, similar to other psychoactive agents, can be misused. Tramadol’s pharmacological profile increases the risk of adverse effects seen in overdose. Overdose

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results in drowsiness, constricted pupils, agitation, rapid heartbeat, hypertension, nausea, vomiting and sweating. Seizures are more common with tramadol overdose than with other opioids and occur in up to 15% of cases. In severe poisoning coma, seizures and hypotension—low blood pressure—can occur.

The ACMD’s consideration of tramadol was prompted by concerns from healthcare professionals about the growing misuse of the drug. It revealed an increase in the number of NHS prescriptions for tramadol—from 5.9 million in September 2005 to 11.1 million in September 2012—wide availability on the internet, and an increasing number of deaths in which tramadol was mentioned: 87 mentions on death certificates in 2009 went up to 154 in 2011, representing an increase of 77%. The ACMD reports that the majority of tramadol-related deaths occur where it has been obtained through non-prescribed means. However, overprescribing is also believed to contribute to diversion and misuse.

Ketamine is a synthetic drug used in medical and veterinary practice. It is used as a dissociative anaesthetic and a pain reliever. The ACMD first considered the recreational use of ketamine in 2004, and following its advice ketamine was brought under class C control in 2006. The ACMD reports that evidence of harms from misuse has developed over the years. In addition to well known harms such as increased heart rate and cardiac output, high blood pressure, hallucinations and experiences of alternate realities similar to those found in schizophrenia, long-term ketamine misuse is now known to be associated with a range of chronic problems including chronic bladder and other urinary tract pathology, and damage to the gall bladder, central nervous system and kidneys. The ACMD also reports evidence of acute and chronic toxicity associated with ketamine misuse.

Social harms associated with ketamine use are reported to include a negative impact on families, social skills and participation in social activities. Large doses of ketamine are also known to induce dissociation—intense detachment that can be unpleasant and frightening and can put the user in a position of vulnerability to robbery, assault or, in extreme cases, rape. For all of these reasons, the Government accepted the ACMD’s advice to permanently control these drugs under the 1971 Act and reclassify ketamine as a class B drug. It is intended to make two further related statutory instruments that will be subject to the negative resolution procedure.

The Misuse of Drugs (Designation) (Amendment) (No. 2) Order 2014 will amend the Misuse of Drugs (Designation) Order 2001 to place the N-BOMe and benzofuran compounds in part 1 of the order as compounds to which Section 7(4) of the 1971 Act applies, as they have no known legitimate use outside research. Their availability for use in research will be enabled under a Home Office licence. Drugs that have legitimate uses as medicines will be scheduled appropriately in one of four schedules under regulations to ensure their continued availability and use in healthcare. Specific requirements will be applied to each of these depending on the schedule in which they are placed under the regulatory framework to prevent their diversion and misuse.

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The Misuse of Drugs (Amendment) (No. 2) and the Misuse of Drugs (Safe Custody) Regulations 2014 will amend the Misuse of Drugs Regulations 2001 to place lisdexamphetamine in Schedule 2, zopiclone and zaleplon in Part 1 of Schedule 4, and tramadol in Schedule 3 to the 2001 Regulations. These regulations will further place tramadol in Schedule 1 to the Misuse of Drugs (Safe Custody) Regulations 1973, which means that tramadol will be exempted from the safe custody requirements. Ketamine is not being rescheduled immediately after reclassification. It will remain a Schedule 4 Part 1 drug, and will remain available for use in healthcare and veterinary practice pending a public consultation to assess the impact of Schedule 2 status, as recommended by the ACMD, later this year.

These instruments will be laid in time to come into force at the same time as the Order in Council, if it comes into force as proposed. The Government will publicise the approved law changes through a Home Office circular. I commend the order to the Committee.

The Deputy Chairman of Committees (Lord Colwyn) (Con): My Lords, I must congratulate the noble Lord on his pretty well faultless pronunciation. The question is that the Grand Committee do consider the draft Misuse of Drugs Act 1971 (Ketamine etc.) Amendment Order 2014.

Baroness Finlay of Llandaff (CB): My Lords, I echo the Deputy Chairman’s congratulations. Those are pretty difficult drug names to cope with. I have a few comments and a question. The review of zopiclone is welcome. It has often been used inappropriately as a sleeping tablet and viewed as being very safe. The evidence, actually, is not that good for it in terms of patients getting off to sleep. There are lots of other things with sleep hygiene that need to happen to help people sleep. Tramadol has escalated in its prescription and has been viewed as being very safe in the way that physicians have looked at it as an analgesic. I have had a concern for some time that morphine is viewed, with caution, as inappropriate—and more cautiously than may be necessary, because it is a very good analgesic. Therefore, some of these other analgesics, such as tramadol, tend to get prescribed almost too readily and without due caution.

The one I would like to focus on is ketamine. I must declare an interest, having been on the advisory committee of the misuse of drugs sub-committee that was looking at ketamine at the time. I think it is important to record that as a group we were divided on whether ketamine needed to be reclassified. That was because of its clinical use. It is a very useful drug in an emergency. It is a battlefield drug. It has been used in major accidents when you have to get trauma victims out. The safety feature of ketamine is that patients conserve their airway: when you are operating in a collapsed building or on an accident site, when you cannot get access to the person, you may be able to do an amputation under ketamine that otherwise you would not be able to do, because the person will continue to breathe and protect their airway. In fact, they will appear to be conscious. Clinically, I used to use it when I did anaesthetics with children who had

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severe burns. You could give what is called dissociative anaesthesia: they could turn over and move, but they could tolerate having their dressings changed because they had the analgesia from it.

My question relates to the supply, after reclassification, to hospices where ketamine is used for neuropathic pain. There is a concern—which just fell into my inbox this morning, as it happens—that hospital pharmacies that supply hospices with drugs, particularly morphine, will now have to purchase a licence, at a cost of £5,000. They are concerned that it will make it more difficult for them to have the supply of drugs that they need. I would like a reassurance from the Minister that the legitimate therapeutic supply of ketamine, particularly to hospices and in the community for patients with severe neuropathic pain from malignant disease and from other conditions that are progressive, will not be impeded by reclassification. For some of these patients it is the only drug that will get control over their complex neuropathic pain.

I also ask the Minister whether it will fall under this licensing requirement and whether he will undertake to look at the charge for this licence, which seems to be very high. Voluntary sector hospices are trying to provide a high level of care to patients on behalf of the NHS, bearing a lot of the cost out of their own fundraising, and they want to be linked to a hospital pharmacy because of the quality control and governance assurances that go along with being linked to a hospital pharmacy.

4.15 pm

Baroness Smith of Basildon (Lab): My Lords, I am grateful to the Minister for his explanation and to the noble Baroness, Lady Finlay, for the expertise that she brings to this issue. I assume that when she said that the advisory committee to the sub-committee on the misuse of drugs was split on this issue, the kinds of issues that she was raising were ones that caused the concern. I would be interested in the Minister’s comments on this one.

With such a serious subject, it is a moment of light relief to enjoy the Minister’s pronunciations of the drugs involved. It is one of those rare occasions when I am grateful that I am not the Minister so I do not have to worry about the pronunciations. But the harms of ketamine and the other drugs have been recognised and are alarming. Successive drugs surveys over the past five years have shown that ketamine in particular has become established as a drug of choice for those who go clubbing and for recreational use, and many of those people will have little idea or knowledge of the dangers they face.

There is not really any strong evidence that reclassification will have any great impact on the prevalence of those drugs, and I am concerned about the public health campaigns that are needed. Very clear messaging needs to go out, and it needs to start in school. Recreational drug users in clubs are more discerning than those who are addicted to drugs, and other more vulnerable users, and are therefore more susceptible to such messages because they are legal-high users. If you have spoken to parents who have lost children, or whose children have been harmed or damaged by

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recreational drug use, you will know that the messaging needs to be much stronger and much better than it is at the moment. There is a danger that the Government will step back a bit and not take a sufficiently proactive role in this regard to prevent the harms taking hold of a number of young people.

I want to press the Minister on a couple of things. One is the FRANK website. Whenever I raised these issues previously, Ministers always told me, “Ah, we’ve got the FRANK website”. How effective is it? It seems to me that for someone to look at the FRANK website, they have to be interested in the first place and want to understand what is involved. We need to be reassured of its effectiveness. We have to aim further than those who seek out the site because clearly it does not have a wide enough reach. We are not reaching too many of the people who are recreational drug users and who go to clubs and raves but do not understand the harm they are causing themselves. I would like to hear some more not just about the FRANK website but about targeting recreational drug users.

We do not oppose this order because we recognise that there are very serious harms. In relation to ketamine, the Explanatory Memorandum talks about the,

“intense detachment that can be unpleasant and frightening and can put the user in a position of vulnerability to robbery, assault or rape”.

It is not just the harm that the drug causes but the harm that is caused to the person who becomes detached and dissociated from their surroundings and therefore particularly vulnerable. There are those who are making significant amounts of money out of causing this harm to others, but I also take the point made by the noble Baroness, Lady Finlay: I am sure that the Government do not want to cause problems for those who require drugs such as ketamine for pain control or other medical purposes. If the noble Lord can give us an assurance in that regard, or even tell us that he will take this away and come back to us, that will be extremely helpful. We do not oppose this order and I am grateful to the noble Lord for his explanation.

Lord Ahmad of Wimbledon: My Lords, first, I thank both noble Baronesses and the Deputy Chairman for their kind words. It is always a challenge when you are looking to pronounce words that you are not familiar with. With two young children, now I know the challenges they face—if nothing else, it has taught me greater patience in helping them with their reading skills. Nevertheless, I thank the noble Baronesses for their broad support of the Government’s position, and the Committee more widely. I trust that, as both noble Baronesses acknowledged, the Government have made the case for the order to be approved in the House on the basis of the latest available evidence and the ACMD’s advice.

Approval of this order will ensure that our drug laws are effective in relation to both established medicines and newly developed pharmaceutical drugs entering the UK market that are being sought for misuse. It will also ensure that we are taking effective action on compounds that have no legitimate use outside research and which are already being pushed on to the legal-highs market.

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From having done a debate on the issue of legal highs previously in the House, I think that everyone, no matter where they are in the argument, is cognisant of the fact that for anything that is banned today there will be a derivative ready and on the shelves tomorrow. This is something on which we need to be increasingly vigilant. We will of course ensure that those drugs that have a legitimate use in healthcare and veterinary practice continue to be available under a regulatory framework which protects the public from their potential harms.

Before I turn specifically to the questions that were raised by the noble Baronesses, I commend the ACMD for its continuous work and support of our priorities, including on new psychoactive substances. I have already mentioned that the fast pace of the new psychoactive market continues to require us to be ever more careful with the prioritisation of our resources, and underscores the need for closer working within a broader network of partners in the UK and abroad, and the need to preserve the integrity of our drug laws. The ACMD’s advice also reminds us of the dangers of prescription medicine when misused.

I turn to some of the questions that were raised. The noble Baroness, Lady Finlay, speaks with great expertise in these areas. I listened carefully to the issues that she raised. On reclassifying ketamine, as noble Lords are aware, ketamine is already controlled and scheduled, and therefore available for legitimate use in healthcare. As a result, we are able to reclassify it without impacting on its availability for legitimate use. By reclassifying at the earliest opportunity, the Government are sending out a strong message to those who misuse the drug. I assure the noble Baroness that a final decision on scheduling will be made after a public consultation to assess the impact of its schedule 2 status, as recommended by the ACMD.

The noble Baroness asked about other issues relating to its availability. The ACMD has recommended that this subject be subject to a public consultation to assess the impact should ketamine be scheduled, as I have said. As such, ketamine will continue to remain a schedule 4 part 1 drug until a final decision is made on the schedule in which it will be placed following the public consultation.

The noble Baroness made some valid points on availability and the issue of the licensing fee, particularly for hospices. Anyone who has experienced, sometimes sadly and tragically, the absolutely sterling work that hospices do will know that, while it involves great personal tragedy for a lot of the families involved, the role of hospices in the lives of those who are perhaps at their final point is quite incredible. The Government are cognisant of the incredible role they play in community and society. I therefore say to the noble Baroness that licensing requirements will come into play only after rescheduling. I have already mentioned that in the context of the public consultation. On ketamine, I will look at Hansard again to see whether there are any outstanding questions.

Baroness Finlay of Llandaff: I have a supplementary question to that very helpful answer. Can the Minister assure me that the public consultation will specifically target hospices which may not be aware of, or may not

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be on the circulation list for, major consultation? They may be quite important prescribers and users of ketamine, particularly because they are away from the main hospital site, so patients can safely receive fairly potent drugs that protect their airways. That becomes particularly important.

Lord Ahmad of Wimbledon: I am sure that that is very much the case. However, I will counter the noble Baroness’s suggestion by asking her, if she is aware of the names of those bodies, to please forward them, and I shall ensure that officials include them in the official notice of consultation.

The noble Baroness, Lady Smith, raised a couple of questions about talking to FRANK. I remember that when I first came across this website in local government, my first question was, “Who’s Frank?”, because he seemed to know an awful lot. Of course, FRANK is the website used to share information. The noble Baroness makes a valid point about ensuring that the support and information that is available should not be restricted to just one particular website. Whether we are talking about institutes of higher education or about clubs et cetera—wherever drugs may be used for recreational use—it is important that people are informed about the availability of this website. I have taken on board a couple of suggestions that the noble Baroness made. I also say to her that drugs education is part of the science national curriculum at key stages 2 and 3. Provision in this area can be built also through personal, social, health and economic discussions. The Talk to Frank website was relaunched. More than 35 million people have now used it and millions have called the FRANK helpline.

Baroness Smith of Basildon: The Minister said that 35 million people have used the website. Is that 35 million individual users, or have there been 35 million occasions on which somebody has looked at the site?

Lord Ahmad of Wimbledon: I would suggest that it is the latter: it refers to hits on the website. The noble Baroness’s point is well made and I understand it.

The noble Baroness made some very practical suggestions. I think that we are all at one in believing that we need to tackle the misuse of drugs. If so-called “legal highs” are still available on the market, they should be made available in an orderly fashion. Wherever information can be shared, it should be shared as widely as possible through the healthcare system and any other social support system—the FRANK website is one such example. If there are suggestions as to where other tools can be used to ensure that we make this information more readily available, I am sure that we would all welcome them in terms of sharing best practice. As I said in my opening remarks, when I was in local government we encouraged the sharing of information through local healthcare providers and the local healthcare system to ensure that information was available to all.

Finally, on the new psychoactive substances review, the Government are conscious that more needs to be done to tackle the emergence of new psychoactive substances. This is why my honourable friend the

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Minister for Crime Prevention is leading a review by an expert panel on how the UK’s response to new psychoactive substances can be enhanced beyond the existing measures. The expert panel’s primary purpose is to look at how the current legislative framework can be strengthened, as well as at the health and educational aspects of the challenges that we face. The expert panel is expected to report its findings to Ministers in late spring.

I thank both noble Baronesses who participated in this debate for their broad support. They have both made useful suggestions on how we can move this forward. I hope that noble Lords will find that this legislative measure is conducive to ensuring that the public are protected as much possible from the harm caused by drugs that can be dangerous when misused. I commend the order to the Committee.

Motion agreed.

Criminal Justice and Police Act 2001 (Amendment) Order 2013

Motion to Consider

4.43 pm

Moved by Lord Ahmad of Wimbledon

That the Grand Committee do consider the Criminal Justice and Police Act 2001 (Amendment) Order 2013.

Relevant document: 13th Report from the Joint Committee on Statutory Instruments.

Lord Ahmad of Wimbledon (Con): My Lords, I shall speak also to the draft Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2013.

The Government seek to control khat as a class C drug under the Misuse of Drugs Act 1971 to protect the public from the potential harms associated with this drug and the threat posed from its international trafficking. The legislation has been drafted to come into force on 26 May, four weeks after the Privy Council’s approval.

As required, the Government have consulted the Advisory Council on the Misuse of Drugs, the ACMD, which provided a scientific assessment of the medical and social harms of khat use. We again thank the ACMD for its comprehensive report. It advised that there was no robust evidence to identify direct causal links between khat use and the associated medical harms beyond the risk of serious liver toxicity. It reported that some individuals use khat in a dependent manner. Although it concluded that it is difficult to disentangle the prevalence of khat use as a cause or a symptom of societal harms, we are concerned that we risk underestimating these harms due to the absence of robust evidence. The Government carefully considered this advice alongside broader policy factors, including some communities’ concerns that khat use is associated with societal harms that affect them—especially vulnerable users and their families as a compounding factor to family breakdown, unemployment and barriers to integration.

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4.45 pm

Since the Dutch Government banned khat in January 2013, new evidence has indicated that the UK is at serious risk of becoming a single regional hub for the international trafficking of khat to other EU and G7 countries. It is banned also in France and Germany. In addition, the majority of other EU countries have already controlled khat. In France, the latest seizures of khat en route to other EU countries where it is banned continue to show that it comes via the United Kingdom.

To ensure that there is proportionate law-enforcement response to khat possession offences here, we are introducing an escalation framework that has been developed with the support of the police. In addition to the use of “khat warnings” for a first simple possession offence, the separate draft order laid by the Ministry of Justice will extend the use of penalty notices for disorder to the offence of simple possession of khat when it is the second time that the offence has been committed. Anyone caught possessing khat for the third time or more will face arrest. Serious and repeat offenders involved in the illicit supply, importation and exportation of khat will face the full force of the law.

The two draft orders will be complemented by negative instruments. In accordance with ACMD advice, we will designate and schedule khat as a drug that has no recognised legitimate use beyond research. Another negative instrument will set the financial penalty for the khat PND at £60. I commend the two orders to the Committee.

Baroness Finlay of Llandaff (CB): My Lords, I, too, must declare an interest, having been on the sub-committee looking at khat, when we heard a very different story because, as the Minister has indeed set out, there are no medicinal uses for it. The evidence that the UK is becoming potentially a route and hub for distribution is particularly worrying, as is the effect within those communities on home life and the domestic instability that has occurred. I can understand why there is a push to put this legislation forward because there is a need to say that the drug is not safe and recreational in the ordinary sense, and that there are harms associated with it due to its psychoactive nature.

Baroness Smith of Basildon (Lab): My Lords, over a number of years, successive Governments have looked at banning khat, and the evidence for doing so is less robust than that for ketamine. That is clear from the evidence base in the Explanatory Memorandum and the Government’s assessment of the options. We agree with the Home Secretary’s analysis that the arguments are finely balanced—a point made by the noble Baroness, Lady Finlay—and consider that the benefits of a ban could outweigh the risks. However, we seek a number of assurances from the Government that are needed before that is clear.

We should look at the reasons for considering a ban and the risks of such a ban. The reasons for considering a ban are, first, the social and possible health harms associated with the drug. My understanding is that

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khat is not easily comparable with other drugs because it is consumed almost entirely within the diaspora of the Horn of Africa countries: namely, Somalia, Yemen, Ethiopia and Kenya. Overall just 0.2% of the UK population have used khat, but some 50% of Somali males are thought to be users, and up to 10% of them are daily users. This makes it very hard to separate the social harms of khat from wider social issues faced by the Somali community, and to a lesser extent the Yemeni and Ethiopian communities. That said, we have received clear representations from within the Somali community about the problems of khat. In her report, the Home Secretary cited the support of 32 groups representing the Somali community. The support for a ban from within the Somali community is clearly articulated in the report on banning khat, removing segregation and promoting integration, which looks at the community perspective and to which some 27 groups are signatories.

The range of social harms with which khat has been associated include low-level public disorder, and there are claims that khat is linked with some criminal behaviour. UK Somali women often cite excessive expenditure on khat for the diversion of household funds as a major cause of marital tension and family breakdowns. It can also be linked with idleness and benefit dependency, and seems to be a key factor in unemployment, low attainment and social exclusion. However, neither the ACMD nor the Home Office review has been able to isolate khat as the cause of those phenomena, because they all seem to be specific to specific cultures. For example, the phenomena are seen in the Somali communities that use khat but not in the Yemeni ones. Therefore, it appears that khat use, and possible dependency, is part of a cycle of behaviour that is extremely damaging, and which leads to a range of social problems and to social exclusion.

Khat has also been linked to health harms, including liver toxicity, as the Minister mentioned, and tooth loss, as well as to health issues that relate to the manner in which it is consumed. More seriously, it has been linked to depression, paranoia and even psychosis, and is cited as a key reason for higher than average acute mental health problems in the Somali community. However, as with all social harms, it is hard to isolate khat from wider factors that impact particularly on the Somali community, such as social deprivation. Therefore we are not able to say that khat is the direct cause of those problems, although it seems that it exacerbates them.

If we look at paragraph 4.3 on page 1 of the Explanatory Memorandum, we see that:

“The ACMD advises that there is no robust evidence to show a direct causal link to adverse medical effects, other than a small number of reports of an association between khat use and significant liver toxicity. It also finds some of the adverse outcomes are associated with khat use i.e. a complex interaction of khat with other factors to produce the outcome, but that there is no evidence that it is directly caused by khat use. The ACMD further advises that, from the evidence on societal harms, it is often difficult to disentangle whether khat is the source of community problems or whether, to some extent, its prevalence and use is symptomatic of the problems for some individuals and groups within that community”.

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To understand the difficulties, I turn to pages 9 and 10 of the impact assessment, under the heading, “Evidence Base”, which states:

“Anecotal evidence reported from communities in several UK cities link khat consumption with a wide range of social harms. Research into these concerns has been undertaken but no robust evidence has been found which demonstrates a causal link between khat consumption and any of the harms indicated”.

The Home Secretary makes clear in her Written Statement to Parliament, which is Appendix A of the impact assessment, that although the ACMD report,

“recommended that khat should not be controlled, the ACMD acknowledges that there is an absence of robust evidence in a number of areas and that there are broader factors for the Government to consider when making its decision. The decision to bring khat under control is finely balanced and takes into account the expert scientific advice and these broader concerns”.—[

Official Report

, Commons, 3/7/13; col. 56WS.]

Therefore we accept that this is finely balanced and that the Home Secretary’s decision takes broader factors into account other than the medical or scientific.

We also have to examine the risks of banning khat. In assessing risks, we have to consider the risk of the UK becoming a hub for illegal exports to other EU countries and the US, which have already implemented bans—a point made by the noble Baroness, Lady Finlay. That phenomenon has been identified in Sweden and in the Netherlands, but is there any evidence that that is happening here in the UK? The khat ban was first announced in July last year, shortly after the Netherlands ban had come into force. Has any evidence emerged since it was first announced? Khat imports into the UK were falling until last year; has there been a change in pattern since the announcement?

When we look at the impact assessment, that risk is not included as a non-monetised benefit. Neither is any impact on law enforcement agencies considered, other than a reference under “Risks”, on page 16, that enforcement costs may be high initially, as:

“Evidence from other countries which have controlled khat suggests that levels of demand may not reduce immediately after the ban comes into effect, if at all. This could mean that if offenders are caught, enforcement costs may be higher soon after the ban though they may fall afterwards”.

I did not find that kind of figure in the impact assessment. It is also at odds with the expectations under the heading “Justice” on page 19 of the impact assessment,

“that the khat industry will ‘self-regulate’”,

and that legislation to ban khat would have,

“a minimal impact on the criminal justice system”.

However, there is a significant risk that it could damage community relations. Notwithstanding the support for a ban, as quoted above, the Home Office report Perceptions of the Social Harms Associated with Khat Use makes it clear that khat use is both common and widely accepted within the Somali, Yemeni and Ethiopian communities, so to ban khat would be to criminalise an established and accepted social practice. The impact of that has to be fully understood and handled carefully. The Home Office report also signifies that for many khat use is a key cultural signifier and, often, a deliberate attempt to identify with the wider diaspora.

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I turn to the equality assessment. Was this signed off by the Minister, or should it have been signed by a Minister? It does not appear to have been but he might be able to give further advice on that. If so, which Minister has signed it off? The escalation framework, referred to by the Minister, is very important and is laid out in the annex. Apparently, it was decided as part of the review of stop and search. Is the rest of that review also available? It is clear that without proper policing measures this could significantly damage community relations for the Somali and Yemeni communities. That will impact on the Prevent agenda, so it would be helpful to know from the noble Lord whether there were discussions with those responsible for that agenda on what their considerations were of how this could be managed. The point is that it is not clear cut.

We have four issues that we wish to raise with the Government, and which we consider would have to be done if they were to proceed with a ban. There must be regulations and some moves taken to ensure that it is effective and properly monitored. Consideration should also be given to the significant risks.

First, we seek a commitment from the Government to keep this matter under review. Specifically, we would need to see a review after 12 months that looked at the impact of reclassification, and the impact on organised crime and community relations. We would want that to include the monitoring framework outlined by the Home Affairs Select Committee in, I think, the second recommendation of its report. We understand that the Government are collecting some of that information in relation to drugs. However, that is not enough because khat is unique among drugs in that it is focused in the Somali and Yemeni communities. Some specific data will need to be collected on community relations and a separate review into khat should be published. The kinds of things we would be looking at in order to fully understand the implications of that decision are on-street stop and searches, and the numbers of arrests and out-of-court disposals.

Secondly, there are issues around policing. Because khat is highly prevalent in the Somali and Yemeni communities, the introduction of a ban on khat would allow any Somali or Yemeni male to be subject to stop and search. This causes enormous concern in those communities. It could have a detrimental effect on community relations and, in turn, undermine the Prevent agenda, as I have mentioned. This is a particular risk in the Somali community, where khat is a social drug and is linked to numerous businesses including cafes and community centres. The policing will need to be sensitive to that risk and we would want to see a specific policing strategy, agreed by the ACPO leads for drugs and the Prevent agenda. This plan would have to be in force before the ban itself is enforced. I understand the escalation agenda and I welcome it, but we need to have that policing plan in place before any ban is enforced.

I have two more points. One is on health and education. There has to be a programme of engagement and support for Somali communities to educate them about the dangers of drugs and alcohol. What we do not want to see in these communities is khat being

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replaced with alternative drugs or alcohol, which leads to further problems. A World Health Organisation report referred to that issue as being a specific risk in the banning of khat; so it is an issue which has to be taken seriously.

5 pm

The fourth issue is what we would require to be in place if this ban were to go ahead. We want the Department for International Development to continue to work with the Kenyan Government to alleviate the effects of the khat ban on the Kenyan economy. I am sure the Minister is aware of the Home Affairs Select Committee report that raises serious concerns about the economic impact in Kenya.

I understand that this is a balanced decision that is being made. It is not clear cut, but I think in order to proceed we need assurances that the demands we are making have to be examined, including around implementation, to ensure that the risks do not outweigh any benefit.

Lord Ahmad of Wimbledon: My Lords, I thank both the noble Baronesses for their contributions. While brevity was the call of the day in the contribution by the noble Baroness, Lady Finlay, the point was made very well that whatever policy we pursue, we want to ensure that we have the desired effect. One of the deep concerns which emerged, and which is behind the Government’s proposal, was the concern over London or the UK becoming a hub. That is not least because, when we are working alongside our European partners, some would perhaps argue that other countries across Europe, Holland being one of them, which have more liberal policies in these matters than we do have already implemented such bans.

I think the noble Baroness, Lady Smith, raised the issue of changes in the pattern. One of the latest figures that we have seen for trafficking evidence is that between January and March 2014 there were 17 seizures of khat. Eleven and a half tonnes of khat were seized while being taken from the UK to France, en route to other countries. While it is just a small window, there has been a change, and I share those statistics with the Committee.

The decision to control khat under the Misuse of Drugs Act 1971 and to adopt an escalation framework for policing khat possession offences was the outcome of a long and thorough consultation process. For the benefit of the Committee, this included research and inquiries into community perceptions and international evidence, which were led and published by the Government and then of course shared with the ACMD, and the ACMD’s own public evidence-gathering sessions and fact-finding visits about community concerns in England and Wales. I will come to some of the specific questions that the noble Baroness, Lady Smith, raised.

The Home Secretary has made clear that the Government’s decision was finely balanced, as the noble Baroness, Lady Smith, also acknowledged. My right honourable friend the Home Secretary also made clear that we do not dispute the ACMD’s scientific assessment of evidence on harms. The working protocol with the ACMD recognises the broader policy factors

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that the Government have had to consider alongside all available evidence on medical and social harms to inform drug control and classification decisions. The ACMD’s advice helped us to understand the complexity of issues surrounding khat which, in some communities, required our most careful attention.

Beyond the control of khat, we have responded positively to the ACMD’s recommendations on health and community-based interventions that we need to support and that can be tailored to meet local needs. Indeed, that was one of the concerns the noble Baroness, Lady Smith, raised. Public Health England has updated its joint strategic needs assessment guidance for local public health commissioners to this effect. It will advise them with reference to the ACMD’s recommendations and support providers to take appropriate action in centres of khat use, including preparations for a potential influx of khat users and their families once they find that the drug is no longer available.

The Alcohol and Drug Education and Prevention Information Service provides a tool kit for schools to meet local needs, which will include khat where necessary. The Government have also planned communications activity, including targeted community messaging in the lead-up to the control of khat and afterwards. Khat factsheets have been prepared for local organisations and front-line staff to communicate to users and their families the potential harms of khat, the implications of the law change and where to find locally available support. These factsheets will be made available in four key languages in addition to English: Arabic, Amharic, Somali and Swahili.

This co-ordinated response will support the delivery of our drug strategy aims in these communities to protect the public from drug harms, support dependent and vulnerable users into recovery, and support integration. The Government are fully committed to providing support to anyone who needs it to lead a drug-free life, and to promoting equality of chances among all our communities and citizens, regardless of background.

Law enforcement was another issue raised by the noble Baroness, Lady Smith. The law enforcement response has been developed taking into account the localised and international nature of the khat trade. Law enforcement activity will start at our borders, due to the trade’s heavy reliance on airfreight and rapid transportation to the point of sale. It will then be for police forces to deal with any residual activity involving khat where there is a local issue. Our escalation policy and targeted messaging aim to reduce the risk of criminalising small groups of individuals by providing opportunities for local agencies to work with vulnerable users and their families in a sensitive and proportionate manner. Information about local support services will be more readily available.

Before I finish this section, the noble Baroness, Lady Smith, asked about the support being given to police and what plans are in place. There is national police guidance in the khat possession for personal use intervention framework, which was produced in January 2014. If she has not yet seen a copy of that, I will be

31 Mar 2014 : Column GC249

happy to provide it to her. She raised issues about the equality statement and Ministers’ knowledge. Ministers were aware of the equality statement and were fully involved with it, but it was signed off by a senior civil servant.

On social harms enforcement, these harms are quite difficult to assess in certain respects—which I suppose applies to any drug, but it is particularly true of khat. We recognise that there is a need for close monitoring. In that regard, perhaps I may turn to some of the specific questions on this issue raised by the noble Baroness. On reviews, as recommended by the ACMD, we will continue to monitor the situation on khat, as we do with all other banned drugs. We recognise the need to review the outcomes of policies specific to khat in local communities, in addition to the collation of local and national data on prevalence, treatment and seizures, as we do with other drugs.

Nationally, we have reintroduced a question on khat use in the Crime Survey for England and Wales and will create a khat-specific offence recording code to monitor local law enforcement and criminal justice agencies’ response to khat-related offences. The noble Baroness referred to the use of stop-and-search powers. As was announced by my right honourable friend the Home Secretary last summer, we will keep the use of stop-and-search powers, which are used too frequently in the Government’s opinion, under constant review.

On the law enforcement response, I have already alluded to the national policing guidance. This has been developed specifically for khat and will ensure that the police response to possession offences is consistent, proportionate and—most importantly—sensitive to local issues and community relations, which was another concern expressed by the noble Baroness. Warnings issued by police will be recorded locally and penalty notices for disorder will be available nationally. It is our belief that the combination of our escalation policy and communications activity will help to reduce the risk of criminalising users by providing opportunities for local agencies to work together to signpost vulnerable users and their families to available support services.

On health and education—another concern raised by the noble Baroness—Public Health England will, first, share and promote effective partnership working among local agencies responding to khat-related concerns; secondly, highlight the need to tailor drug prevention initiatives where appropriate; and, thirdly, continue to use the Alcohol and Drug Education and Prevention Information Service toolkit for schools to meet local needs, which may include needs in relation to khat. In its letter to the Home Secretary, the UK Somali network stated:

“As community leaders we have been in discussion with Local Authorities, Health Bodies and the Metropolitan Police Service to reduce any disruptions to society and with further guidance and support from all Government agencies, we will put in the necessary framework or safety net for the most vulnerable that require treatment and prevention at the local level”.

We know that this is already happening effectively with local authorities at a local level.

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The noble Baroness also asked about the wider, international concerns relating to specific countries, including Kenya in particular. We will of course communicate UK khat policy updates throughout all our international posts. With regard to Kenya, the Home Secretary has set out the Government’s response to the Home Affairs Select Committee’s report on khat, including the concern raised about the potential impact of a UK khat ban on the Meru region’s khat industry. We of course appreciate the associated concerns that have been raised about livelihoods, and that is why the UK continues and will continue to deliver a number of projects in Meru county throughout the Kenya market access programme, which is intended to better enable low-income households to participate in a range of value-added markets. For example, this programme currently supports work on aquaculture, livestock and improving the productivity of agricultural communities in Kenya. The Government are also considering how best to improve the commercialisation of rangelands, including through supporting investment in the livestock value chain, tourism and leisure, as well as in other value-added markets. It is our belief that through these objectives and working together with the Kenyans we will achieve the objective of lifting some of the poorest Kenyans out of poverty and providing Kenya with an exit from aid.

I trust that I have answered most of the questions. It is notable that the noble Baroness rightly raised some specific issues about communities that are impacted by khat, the Somali community in particular. Perhaps I may share a quote from Mohamed Ibrahim, who is chair of the London Somali Youth Forum, in his letter to the Home Secretary in July 2013. He wrote:

“I would like to inform the Government that Somali youths, community/mothers and professionals are fully behind such ban, because this about unlocking their potential as citizens, removing barriers to progress”.

I assure noble Lords that we will continue to monitor the situation in the UK, which will help to develop the evidence base for future research into understanding the links between khat use and its associated harms, as the ACMD has recommended.

Baroness Smith of Basildon: I am grateful to the Minister, who has made every effort to address the points that I raised. He is right—this is a finely balanced decision. I am a bit disappointed with some of his answers. I know he made an effort to address them, but I raised specific points that were not out of the blue because I spoke to the noble Lord, Lord Taylor, and his office last week. There have also been discussions over the weekend between my colleagues in the other place and the Government. I would like to consider further the points that the noble Lord has made. The implementation of this measure is so important. When something is finely balanced, the implementation has to be very sensitive, and he has not been able to satisfy me on my specific points about the review or about policing. I should like to consider whether a further debate on the Floor of the House is needed, but I am grateful for the noble Lord’s efforts to address a number of the points I raised.

Motion agreed.

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Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2013

Motion to Consider

5.13 pm

Moved by Lord Ahmad of Wimbledon

That the Grand Committee do consider the Misuse of Drugs Act 1971 (Amendment) (No. 2) Order 2013.

Relevant document: 13th Report from the Joint Committee on Statutory Instruments

Motion agreed.

Disabled People: Independent Living Fund

Question for Short Debate

5.14 pm

Asked by Baroness Campbell of Surbiton

To ask Her Majesty’s Government what arrangements they are putting in place to ensure that disabled people currently in receipt of money from the Independent Living Fund will not be left in hardship when the Fund is wound up next year and the responsibility for Fund recipients is handed to local authorities.

Baroness Campbell of Surbiton (CB): My Lords, independent living lies at the heart of disabled peoples’ participation in their community. My interest in this concept is both personal and professional. Independent living support has enabled me to gain an education and enjoy a fulfilling career. Without it, I would be incapable of doing anything beyond the walls of my home. I am not alone; there are thousands just like me, who have been liberated by this support.

On 6 March, the Government issued a statement announcing, for the second time, their intention to close the Independent Living Fund, the ILF. Only the date of closure has changed: it has been put back to June 2015. Their first attempt at closure was challenged by a small group of disabled people who took the case to the Court of Appeal in 2013. The court ruled in their favour, announcing that the Government’s decision was unlawful under the public sector equality duty. The courts recognised that ILF users will be “significantly disadvantaged” if they have to rely solely on existing local authority provision, and that something more is expected of the Government to fulfil their obligations under the Equality Act and the UN Convention on the Rights of Persons with Disabilities.

One of the judges stated that if the forthcoming legislation on social care, or the code of guidance on transferring responsibility for ILF users to local authorities,

“does not arrive in time or turns out to be too anaemic in content to enable the Convention principles to be brought to bear in individual cases”,

then there would need to be reconsideration as to whether the public sector equality duty had been fulfilled. He also warned that,

“the level of Treasury funding for … this class of ILF users in transition back to”—

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local authority provision—

“in particular is so austere as to leave no option but to reverse progress already achieved in independent living”.

I look forward to hearing from the Minister how the Government have addressed the concerns raised by the courts. Their equality impact assessment offers precious little reassurance on either count.

The Government’s decision to close the fund was not a surprise. Like so many government-funded initiatives to support disabled people’s independence, it fell prey to Treasury cuts and a shaky case for non-duplication and rationalisation. While the ILF budget has risen to the region of £290 million, this money helps over 18,000 severely disabled people, many of whom were previously dependent on expensive residential care or traditional day services. One of their biggest fears is of being forced to return to such provision when ILF funding ceases.

Times have changed. We now recognise that all Britain’s citizens, including those with the most severe disabilities, should enjoy the same life chances, freedoms, and responsibility to contribute, as everyone else. The days of mainstream institutionalised care should be behind us. As the deputy president of the Supreme Court said last week, when ruling that three disabled people had been deprived of their liberty in comfortable care facilities:

“A gilded cage is still a cage”.

Today, six out of 10 ILF users have some form of learning disability, and people—

The Deputy Chairman of Committees (Lord Bichard) (CB): My Lords, there is a Division in the House. The Committee will adjourn for 10 minutes.

5.19 pm

Sitting suspended for a Division in the House.

5.29 pm

Baroness Campbell of Surbiton: To continue, today six out of 10 ILF users have some form of learning disability and people with significant learning disabilities are the highest single group, making up 33% of all users. About one-third of these use their ILF grant to enable them to live in supported accommodation. They and their families have paid tribute to how it has changed their lives, improved their health, expanded their horizons and, for some, opened up training and job opportunities. It became apparent when the fund was closed to new applicants in 2010 that this group would be particularly disadvantaged. The ILF told the Dilnot commission that:

“Many of these people have previously lived in residential care or long stay hospitals ... Local Authority representatives have told us that supported living placements for this group are becoming harder to finance since ILF stopped accepting applications”.

The Government’s consultation responses and impact assessment make it quite clear that ILF users will face a reduction in funding. This was confirmed by the response to the consultation from the Association of Directors of Adult Social Services and the Local Government Association:

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“As ILF recipients transfer into the LA system in 2015, and are subsequently reviewed against”,

the local authority assessment criteria,

“the value of the personal budget calculated through the Resource Allocation System … will generally be at a lower level than the initial ILF/LA budget”.

Disabled people and their families are acutely aware of this prediction. They see their autonomy, independence and well-being slipping away. It is not surprising that they want to save the ILF because they mistrust local authorities’ ability to deliver independent living outcomes—outcomes which enable them to live in the community and not simply survive, the latter now being described by many as “clean and feed” provision.

Scope’s recent research evidence also indicates that local authority social care eligibility criteria and assessment based on personal care needs cannot hope to replicate ILF outcomes. It is true that equivalent funding is being transferred to local authorities, on a formula based on ILF estimates of what it would have paid recipients in each authority. However, the Government and local authorities are adamantly opposed to protecting this money via ring-fencing, so there is no guarantee that the funds will be used to support those transferring from the ILF. I can see the temptation to plunder the fund now: for mending potholes, funding crisis care or simply balancing the books. Let us not forget that the sum involved is a tiny fraction of further cuts planned in local government funding.

The Government giveth and the Government taketh away. For better or worse, the Government have decided to close the ILF. My concern now is that without proper protection and monitoring, the new process and procedures for delivery will fail to meet the 21st-century rights of disabled people to independent living, as articulated in Articles 19, 24 and 27 of the UN Convention on the Rights of Persons with Disabilities. It is clear that the courts share this concern.

Policy responsibility for future support for ILF users now passes to the Health Secretary and implementation falls within the framework set out in the Care Bill. I am a little bewildered that the Health and Social Care Minister is not responding to this debate: surely we are here to debate the future of independent living support, not the past. Along with my fellow Peers, I have worked closely with the Government to ensure that disabled people’s rights and responsibilities are embedded in the Care Bill: Inclusion London, Disability Rights UK and Scope have all produced constructive research evidence and practical ideas, shaping the continuity of care provisions, assessment procedures and much more. I want to see this model of collaboration throughout the ILF transition. In addition, regulations and detailed statutory guidance on the assessment of needs being prepared under the Bill must specifically address the needs of those transferring from the fund. Can the Minister confirm whether this is happening?

We have only 15 months to get the new structure for delivering independent living support fit for purpose. I am therefore asking the DWP, DCLG and the Department of Health Ministers for two immediate actions. The first is to initiate a reference group to

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oversee and monitor the effects of the ILF transition for two years. This group should work along the same lines as the current continuity of care group which involves disabled people, including myself, Government officials and local authority practitioners. Secondly, the Ministers for Social Care and Local Government should develop statutory regulation and guidance to ensure that the current principles and resources secured for independent living purposes continue after the transfer.

Without that twofold plan the Government are in jeopardy of undoing 30 years of independent living development, which has brought the most severely disabled people out from the shadows of dependency services. Let us ensure that they do not return to the back room, watching TV, or end up in 21st-century “gilded cages”. I look forward to hearing the Minister’s response, and very much look forward to this debate.

5.35 pm

Lord Cormack (Con): My Lords, I can say “Amen” to that. We are all greatly in the debt of the noble Baroness, Lady Campbell, not only for the way in which she has introduced this debate today but for the shining example that she gives us all, day in, day out, when she is in this building. I first became conscious of her presence on a Sunday afternoon in August. I was listening to “Desert Island Discs”, and had to pull into a car park because I did not want to be early for my lunch until I had heard everything that the noble Baroness had said and had chosen. That was the most inspiring episode of that programme I have ever heard. We have here someone who has overcome enormous disabilities to be a leader, and is a Member who plays a very full part in the deliberations of your Lordships’ House. We should listen with respect and care to what she has said.

It seems that the die is cast as far as the Government’s decision is concerned. Personally, I regret that. We now have to ensure that the things that could happen do not happen. We must not give the disabled in our midst a postcode lottery, and there has to be a guarantee of help which is at least the equivalent of that to which they have become accustomed. However, inevitably, there is a feeling of real concern and doubt in the disabled community, and I hope that when my noble friend comes to sum up this debate, he will be able to put all our minds at rest. There is a duty upon whoever is in government to help those who are least able to help themselves without the sort of assistance that they have had over the past 30 years. Coming in from the cold, out of the shadows—one can use various expressions. However, the fact is that this fund has enabled people to fulfil themselves in a way that was not possible before. What we all need, as we struggle with life, is independence, security and stability.

For many of us, it is not too difficult to have those three things, but for those who labour under great disability, it is. I cannot begin to say that I understand fully or even partially the sort of obstacles that the noble Baroness has so valiantly and inspiringly overcome. However, we all have problems from time to time that make us just a little aware of those obstacles. When I broke my arm once, and for six weeks could not use

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my right hand at all, I became a little conscious of them. Last year, as some of your Lordships will know, I was hobbling around with a stick because I had a particularly bad back. I thought that I faced spinal surgery—and thank God I did not. However, during that period I became acutely conscious of what some of my colleagues in this House have overcome. They are an inspiring example to us all.

I cannot understand the logic of winding up the fund. I find it difficult. But it is incumbent upon the Government to answer with real conviction, dedication and determination the points put by the noble Baroness, Lady Campbell, in her concluding remarks. Knowing my noble friend, in this place and in another one, I know that he is a man of real compassion and I hope he will be able to set our minds at rest.

It really would be appalling if in June 2015, when we are all celebrating the birth of the rule of law in the meadows of Runnymede in June 1215, we foreclosed on some of those in our society whose need is particularly great. If anyone deserves practical compassion, it is the noble Baroness and those like her. I thank her for all she has done. I thank her for the inspiration she gave us this afternoon, and I look forward in hope and expectation to the Minister being able to put our minds at rest.

5.40 pm

Baroness Hollins (CB): My Lords, I congratulate my noble friend on introducing this debate and on her advocacy for the right of disabled people to live independently. My own interest derives from my work as a psychiatrist with people with learning disabilities for more than 30 years, and as the mother of two disabled adults.

The Independent Living Fund provides important support for more than 18,000 disabled people. I know that many people with a learning disability, particularly those with profound and multiple learning disabilities, have benefited from the fund. The Government’s view that such a discretionary fund should be subsumed into the mainstream social care budget of the local authority might perhaps be an agreeable one if social care were not being so horribly squeezed already and if people with disabilities were not already being adversely affected by cuts to welfare benefits.

My noble friend referred to the serious delays to progress in the post-Winterbourne View programme that aims to move people who are in institutional or supposedly specialist hospital care back into their home communities. This has been held up. Local authorities seem to have no incentive: it is cheaper for cash-strapped local authorities to admit people to NHS or private specialist hospitals than to provide skilled suitable support for them at home.

In the past three years, an estimated £2.68 billion has been cut from adult social care budgets—a figure cited by the Association of Adult Directors of Social Services. Of course, the result has been a tightening of the eligibility criteria, meaning that many people have already lost much-needed support. The Care Bill, a very welcome piece of legislation, sets a national eligibility threshold that is intended to bring consistency across the country. However, the Government have said that

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they will set the threshold of care at “substantial”, meaning that many people—I am thinking here of people with learning disabilities—will lose out and find their independence threatened. Such a restriction will undoubtedly leave local authorities struggling to deliver on the new well-being principle set out in the Bill.

Organisations such as Mencap, which assisted with research for my speech today, and others within the Care and Support Alliance have highlighted the impact on those with mild and moderate needs losing care as the threshold rises. A few hours of care a week for someone with a mild learning disability might be the difference between living independently and being alone and lonely at home. It might mean being supported to get out into the community, being involved in leisure activities, being helped to organise money and pay bills, and being less vulnerable to exploitation. Last week I watched a play performed by a theatre company of actors with learning disabilities. The play was called Living Without Fear. The actors illustrated graphically the lives of people with inadequate support living at home, and the kind of disability hate crime and exploitation that some people with inadequate support will face.

Many people rely on relatively cheap and low levels of care. The loss of such care risks isolating them and denying them independence—something, of course, that is central to this debate. The Independent Living Fund supports a number of people with low or moderate needs. It is members of this group who might well be hit twice. The focus of the fund on supporting independence could be lost by being subsumed into a general adult social care budget. One worry I have is that the welcome move toward supported living for people with learning disabilities will be slowed down now with a retreat to a residential warehousing model of care, which we have been working so hard over the past 30 years to turn around.

Like the noble Baroness, Lady Campbell, I look forward to the Minister’s response on how the transition will be handled, particularly in light of the increasing financial constraints faced by local authorities. I am interested in the Minister’s comments on how the effects of the abolition of the fund will be evaluated and reported.

5.46 pm

Baroness Wilkins (Lab): My Lords, the Government have been given the clearest of warnings that their plans to close the Independent Living Fund and transfer its responsibilities to local authorities could relegate thousands of disabled people to residential care—either that or they would be living such reduced lives that they would be deprived of their current ability to live independently, have a family life, be educated, be employed, do voluntary work and contribute to their communities. Is the coalition Government honestly willing to accept this? Do they understand the wholly justified fear that this decision has generated?

I congratulate the noble Baroness, Lady Campbell, on securing this debate, and I look forward to the Minister’s response to her positive suggestions on ways in which this miserable situation can be alleviated.

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It is just not possible for the Government to deny that we have a crisis in social care. Only this past week, the Nuffield Trust reported that a quarter of a million older people have lost their basic social care over the past four years due to cuts in council budgets. The report’s authors warned that the NHS and Government are now “flying blind” in planning services for vulnerable people because there is no way of assessing the true impact that social care cuts are having on their lives.

Over the past three years, £2.68 billion has been cut from adult social care budgets despite the increasing numbers of working-age disabled people needing care. Research contained in the report The Other Care Crisis last year found that this is having a significant impact on the ability of disabled people to live independently; 40% of respondents said that the social care services do not meet their basic needs, such as washing, dressing or getting out of the house. How can the Government support a policy which now probably condemns another 20,000 to join that fate?

This is the situation we face, yet somehow the Minister for Disabled People, in his Statement on 6 March, could say:

“The key features that have contributed to the Independent Living Fund’s success, in particular, the choice and control it has given disabled people over how their care and support is managed, are now provided, or are very soon to be provided, within the mainstream system”.—[Official Report, Commons, 6/3/14; col. 143WS.]

I take it that the Minister was basing his argument on the Care Bill, with its very welcome introduction of the well-being principle in Clause 1. But this principle does not include key concepts of independent living, such as choice, inclusion and equal participation.

How soon will it be that a local authority argues that a former ILF user’s well-being is being met in residential care, despite it being totally against the individual’s wishes or choice? All attempts by the Labour Opposition in the Commons to include independent living in the well-being principle were voted down by the Government. Moreover, as we constantly argued during its passage, the Care Bill has little chance of achieving its aims without sufficient finance. First it has to overcome the current £1.2 billion shortfall in funding social care for disabled people under 65, let alone care for older people. I feel sure that the Minister will cite the £3.8 billion joint health and social care funding—the so-called “better care funding”—as the solution. Welcome as this is, it is not new funding. NHS England and the Local Government Association have pointed out:

“The £3.8bn pool brings together NHS and Local Government resources that are already committed to existing core activity”.

The fundamental question that lies behind this debate is whether social care is capable of delivering a right to independent living. Disabled people have been striving to establish this for the past 30 years. Far from abolishing the ILF, we need a system which builds on the way it has enabled thousands to live ordinary lives. We need a system based on universal principles, which funds the additional costs that disabled people have—of all ages and across the whole range of impairments

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and long-term health conditions. It needs to be a nationally consistent system, with no element of postcode lottery.

The noble Baroness, Lady Campbell, has proposed to the Government a way to alleviate the misery of the policy they are adopting. I hope that the Minister will grasp it and at the very, very least persuade his fellow Ministers to ring-fence the ILF funds when they are transferred.

5.51 pm

Lord Low of Dalston (CB): My Lords, I am grateful to the noble Baroness, Lady Campbell, for initiating this debate on replacement arrangements for the Independent Living Fund. Closure of the ILF potentially represents a crisis in funding to support the independent living of a significant group of some of the most severely disabled people in the United Kingdom.

The ILF is a national scheme providing financial support for almost 20,000 disabled people to live independently in the community rather than in residential care. It was originally set up in 1988 as a temporary measure to mitigate the impact of implementing new community care legislation and a review of social security benefits for disabled people which was being undertaken by the Government of that time.

However, the desire of disabled people to live more independently was vastly underestimated. Within its first year, the fund attracted 900 applications a month, later rising to more than 2,000. The fund proved very popular. It worked very well. It met a real need and, as a result, has survived to this day, supporting nearly 20,000 disabled people, many of whom have some of the most severe and complex needs.

In June 2010, the Government closed the fund to new applicants. In December 2012, they proposed to abolish it altogether. In November 2013, the Court of Appeal ruled against the Government’s decision to abolish the fund. However, on 6 March this year, as we have heard, the Minister for Disabled People announced his intention to close the fund anyway, on 30 June 2015.

The Government’s thinking is that the ILF should close and funding will be transferred to local authorities so that current claimants can be supported through the mainstream adult social care system. I recognise that the ILF is something of an anomaly, falling as it does on the DWP budget and sitting outside the mainstream system of social care funding. However, sometimes it is appropriate that the imperatives of bureaucratic tidiness should give way to the pragmatism of what works.

I acknowledge that the Government have said funding from the ILF will be transferred to local authorities and the devolved Administrations. However, this must be judged against the state of social care funding. Cuts to local authority budgets of more than 20% since 2010 have had a devastating impact on social care provision. The amount spent by councils on adult social care has fallen by £2.8 billion, or 20% between 2011 and 2014, and the Audit Commission’s Tough Times 2013 report, published at the end of last year, found that while reductions in adult care accounted for 14% of council cuts between 2010-11 and 2011-12, they will account for 52% in 2013-14.

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Consequent pressures on local authority budgets have meant that thresholds for care have risen dramatically, meaning that fewer disabled people qualify for social care. Since 2008, 97,000 fewer disabled people aged 18 to 64 have received social care, and even those still eligible for care experience the rationing of support. In these circumstances, the Government’s assertion that the social care system will simply pick up where the ILF left off is unrealistic in the extreme. This is especially the case when it is realised that the £320 million that the ILF currently costs will not be ring-fenced when it is transferred to local authorities.

As the Government have stated their intention to set the new national eligibility threshold at a level equivalent to “substantial”, the more than 3,000 ILF claimants in group 1, a significant proportion of whom have low or moderate needs, will likely not receive any support to live independently once the fund closes. Without this support, ILF claimants will find it harder to live independently and risk being forced to live in residential care, breaching Article 19 of the UN Convention on the Rights of Persons with Disabilities, which sets out the equal right of all disabled people to choose to live in the community and government’s duty to take effective and appropriate measures to facilitate this right.

Like everybody else, I want to ask the Minister what replacement arrangements for the fund it is proposed will be put in place. With the closure of the ILF, I want also to ask whether the Government will commit to developing a strategy for local and central government to support disabled people to live as independently as possible. As part of such a strategy, will they make independent living a key outcome for delivering social care for disabled people?

The ILF system, however flawed, exists in recognition of the fact that people with high support needs are at particularly high risk of social exclusion. They face particular barriers to living independently in the community and their needs in this regard are not adequately addressed by mainstream provision. By taking away the support provided by the Independent Living Fund, the Government, whether intentionally or not, are sending a message that independent living for disabled people is not a priority for either local or national government. That is at the heart of the concerns that disabled people who receive support through the ILF are expressing.

5.58 pm

Lord Kirkwood of Kirkhope (LD): My Lords, it is a pleasure to follow the noble Lord, Lord Low of Dalston. I entirely agree with his concluding point that the needs of people who have multiple impediments are not being properly taken account of. I join others in congratulating the noble Baroness, Lady Campbell of Surbiton, on introducing this debate. She is being entirely realistic in the demands that she makes, and I support both of them. I hope that the Committee will not allow the Minister to duck both the propositions that she put: first, her idea of a reference group to monitor the two-year period that is just about to unfold; and secondly, the possibility of regulations

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and guidance that would continue thereafter. These are both entirely appropriate and I agree with her desire to bring them about.

Like some other colleagues, I am a refugee from the days when the 1988 regulations were put in place by that great man, Lord Newton, and Nick Scott. Those were the days of an enlightened Conservative Administration—some of us remember that. There was a real problem in 1988, and Tony Newton cut through some of the difficulties of moving the supplementary benefit into the new social security system and was enlightened enough to set this thing up.

We would be moving in entirely the wrong direction if the Independent Living Fund was closed. One of the books I received for Christmas—I am still reading it because it is very, very thick—is Andrew Solomon’s Far from the Tree: Parents, Children and the Search for Identity. It is inspiring and I recommend it to the Minister in particular because it might occupy his time and prevent him from getting involved in anything more nefarious in the department. It is an inspirational book because it shows what can be done with proper support. It also shows what can be done regarding employment if there is adequate support.

The simple point I want to make is that if you look at the work being done by the noble Lord, Lord O’Donnell, on the question of well-being and the inadequacies of using GDP and simple monetary ways of measuring some of these issues faced by severely impaired individuals, we are missing an opportunity. Some of the case histories that Andrew Solomon considers in his book represent positive contributions to the families. In those cases, not only is well-being demonstrably and undeniably increased but they create a business case for preventive spending for the long term. If people get into work, they do not need nearly as much financial support. With assistance, they can trade their way out of difficulty.

Looking forward, the idea is not easy and is still novel. We should be testing whether systems such as the Independent Living Fund can be reconfigured in a way that considers spending as preventive. The reference group that we are thinking about setting up here—I hope that the Minister can consent to that—could additionally be tasked with looking at individual examples in which severe impairments are faced by family members and at how they can be turned around into success stories, and in which the well-being of everyone involved can be increased. That is a very interesting aspect of public policy that we are missing at the moment, and from which we are stepping away by closing the Independent Living Fund. We are doing the wrong thing. I would personally agree to the setting up of a reference group such as that suggested by the noble Baroness, with guidance to examine in a more informed way the issues and possibilities for preventive spending.

Like my noble friend Lord Cormack, I am already a signed-up member of the fan club of the noble Baroness, Lady Campbell of Surbiton. I will therefore follow her lead and support her in every way that I can in trying to establish the reference group that she is asking for.

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6.02 pm

Baroness Grey-Thompson (CB): My Lords, I thank my noble friend Lady Campbell of Surbiton for tabling this debate.

In my time in your Lordships’ House, I have had the pleasure of participating in, among others, the passage of the Welfare Reform Act and the legal aid Act, and the Care Bill. Through the legislation that has been passed we will see some of the biggest changes to the lives of disabled people in many, many years. While there have been varying amounts of media coverage over the welfare and legal changes, the effect of disbanding the Independent Living Fund has happened rather under the radar—perhaps because the role and funding available has been gradually eroded over time.

Inclusion London has argued that the ILF provided both value for money and value for disabled people. The ILF has only about 2% overhead costs, compared to 16% on average, for local authorities. The £350 million the ILF costs in government funding each year supports around 20,000 disabled people. This equates to, on average, £17,500 per person, equivalent to approximately £337 per week, or £48 per day. This compares—I was going to say “very well”—extraordinarily well to the notorious Winterbourne View private hospital, where the average cost was £3,500 a week.

The user base of ILF is mostly young disabled people; only a small percentage, around 6.4%, is over 65 years old. The ILF has had consistently high user outcome satisfaction, ranging from 94% in 2009-10 to 97% in 2012-13. Perhaps that was because it was centred on the person. I, like many, was extremely disappointed that the journey of the ILF appears to have been so tortuous recently and that disabled people, having been through the High Court case, were thrown a lifeline only to have it removed again. That was very ably explained by my noble friend Lord Low.

6.04 pm

Sitting suspended for a Division in the House.

6.14 pm

Baroness Grey-Thompson: My Lords, it is important to remember that the Independent Living Fund was designed to give disabled people the same rights as anyone else: to work, to socialise, to have a family, to participate in society and—I know it sounds a bit dramatic—just to live. That was brought home to me when a number of people got in touch with me because of this debate. Fran said that it enabled her,

“to live, not just exist”.

Right now, I feel very lucky that, at least for the time being, I do not have care or support needs.

We are debating this issue at a time when the media coverage surrounding disabled people is inherently negative. You only have to scan the coverage to see that they—or rather, “we”—are being portrayed as scroungers and skivers who are a drain on society. The size of the welfare budget is endlessly debated, but what it widely encompasses is usually not. Scope’s

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report, which was launched this morning, highlighted how little attitudes have changed in many areas over the past 20 years.

My real worry is that it will become “too expensive” for disabled people to live independent lives. If the funding is not ring-fenced, a disabled person’s independence is balanced against a contribution to, say, upgrading street lighting. There is a real danger that it becomes a decision about the benevolence that we choose to bestow on disabled people rather than something that should be clearly defined.

I mentioned that a number of people got in touch with me, and this is a snapshot of what I was told. Sue told me that they would move from being able to fit care plans to people’s needs to having to plan around care visits. Jackie said that once the ILF goes, so does the safety net around disabled people. Rachel said that disabled people are frightened for their future, and that they may be made to live in care homes. Fran, who I quoted earlier, gave a very balanced response:

“By employing and managing my own support, I create full time permanent jobs for personal assistants on a living wage at zero profit (I manage, including paying Tax and NI and recruit my staff for free) rather than carers on zero hour contracts on min wage with private companies profiting. Also it has been strongly evidenced that this central fund costs less than equivalent social services support per hour, due to low central administration and overhead costs, so care packages will need to be cut to create any saving. I am deeply scared this is putting thousands of Disabled people back to the pre-1980s era—unseen, institutionalised or trapped at home with inadequate support”.

I believe that the time to save the ILF in this format has passed. However, I like the idea put forward by the noble Lord, Lord Kirkwood, that we need to reconfigure what we are doing. It is essential that what happens from here, and the protection of the budget, get the urgent consideration they require.

6.17 pm

Lord McAvoy (Lab): My Lords, I add my congratulations and thanks to those of colleagues who thanked the noble Baroness, Lady Campbell of Surbiton, for her integrity in bringing us here and for the quality of her presentation. The quality of presentations from other colleagues has also been first class.

The closure of the Independent Living Fund is a truly reprehensible decision, which is already causing recipients of the fund immeasurable hardship. The fund has served disabled people well. For those in receipt of the fund there is now a continual anxiety and fear about what comes next.

Like other colleagues, I press the Government to say what arrangements they are making to communicate with recipients of the fund and with local authorities. Responsibility will be devolved to local authorities from June 2015, but there remains no comprehensive strategy for implementation. Is it really the case that local authorities have no information on how the fund is to be devolved, divided, or maintained? What discussions are the Government having with local authorities?

Even more importantly, what is being done to inform recipients of the changes being made and to guide them through them? The closure of the ILF is already

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adversely impacting upon recipients lives; many feel ignored and marginalised. Worryingly, the Government’s equalities analysis, which the courts forced them to carry out, is full of imprecision. The Government seem unsure of the actual effects their policy will have. Some £262 million will be available to local authorities and devolved Administrations in place of the ILF in 2015-16, but what will happen after that date? The money being given to local authorities, as I think every Member of the Committee has mentioned, is not ring-fenced. Local authorities’ social care budgets were cut by £893 million in 2012-13 and will be cut by a further 28% in 2013-14. It would be unsurprising if cash-strapped local authorities used this money to mitigate the effect of these cuts. What protections are the Government putting in place to ensure that this money is used appropriately? Why is the money not being ring-fenced?

It is clear that local authorities will have to apply their own assessment and eligibility criteria unless the Government build in some form of protection on transfer. Why have the Government not done this and what assessment has been made of this likely postcode lottery? That concern was also raised by the noble Lord, Lord Cormack.

It has been suggested that existing social care support assessments provide a means for determining support. However, in submissions to the Government’s consultation, several local authorities reported that group 1 users may not meet social care criteria. The equalities assessment noted:

“For those Group 1 users not in receipt of any support from their local authority, the loss of ILF funding will most likely have a significant effect”.

This represents 40% of group 1 users. There is a clear identification of risk to these people. What is being done to address this?

There is a disturbing lack of information on what is going to happen after June 2015. It is essential that recipients and local authorities have more information and are kept informed. What guarantees are the Government planning to ensure that former ILF funds are spent correctly? What protections will there be for group 1 recipients who are not in receipt of local authority support? These issues are already causing immense distress to disabled people and, if they go unaddressed, will cause serious hardship. Like the noble Lord, Lord Kirkwood of Kirkhope, I fully support the call of the noble Baroness, Lady Campbell, for a reference group. If there is no one there to fight the corner of people who are less able than the majority around them, they will in my opinion inevitably suffer. I call on the Government to respond to the noble Baroness’s call for a reference group.

6.22 pm

Lord Bates (Con): My Lords, first, like all noble Lords in this debate, I pay tribute to the noble Baroness, Lady Campbell of Surbiton. My noble friend Lord Cormack was absolutely right in his tribute to her as a shining example in this place, and he gave me the injunction to listen to her with care and respect. That is absolutely what we will do in the way in which we are responding to the debate, and in seeking to provide the assurances that are being sought.

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We have heard about the valuable role that the Independent Living Fund has played and continues to play in enabling severely disabled people to live independently. The noble Baroness, Lady Campbell, talked from her personal experience, and the noble Baroness, Lady Grey-Thompson, referred to the feedback that she had received from people who had written to her. The reality is that the Independent Living Fund had been a significant success. The noble Lord, Lord Low, referred to the popularity of the fund when it was instituted in 1988. Over the past 26 years, the number of people whom it has helped has gone up from 300 to 20,000 at its peak, and now down to around 18,000. These changes mean that the features that have contributed to the ILF’s success are now, or very soon will be, available within the mainstream system across the UK. It is also the case that the ILF has always benefitted from the relatively small proportion of the severely disabled people who use the mainstream adult social care system, numbering about 1.3 million. Indeed, that broad care for disability is something that the noble Lord, Lord Kirkwood, referred to as coming from an enlightened Administration in the shape of the much missed Lord Newton. I served in that department as a PPS—although, I have to say in these times, not in a nefarious way at all—in supporting Nicholas Scott as he was taking forward that excellent piece of legislation, the Disability Discrimination Act 1995, which was really a sea change in the way that disabled people were treated and respected in our society.

On 6 March the Government announced the closure of the ILF on 30 June 2015. Funding will transfer to the English local authorities and the devolved Administrations. Local authorities in England will take direct responsibility for meeting the eligible care and support needs of ILF users. The devolved Administrations can decide how they wish to support ILF users in Scotland, Wales and Northern Ireland.

Significant points have been raised and we want to look at them very carefully. In relation to the reference group, which the noble Baroness, Lady Campbell, referred to, the ILF is committed to working in partnership with local authorities to ensure a smooth transition for users. The transitional arrangements now being implemented were developed from an extensive engagement between the ILF and a wide range of stakeholders, including local authorities across the UK, charities and other organisations representing disabled people, and ILF users themselves, 2,000 of whom responded to the consultation. Therefore, we feel that the consultation has been carried out and we do not think that such a group is necessary at this time.

The subject of visits was raised by the noble Lord, Lord McAvoy. Before June 2015 each user will be visited by the ILF, accompanied wherever possible by a local authority social care worker. These visits are designed to review the individual’s current support package to ensure a joint understanding of the outcomes being secured and to address concerns about transition. Once the programme of visits is complete, the ILF will contact local authorities to ensure that they have all the necessary information about every individual user in their area.

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A number of noble Lords, particularly the noble Baroness, Lady Wilkins, mentioned the court case. Because of that uncertainty, a programme of visits to each and every one of the 18,000 people who are going to be affected had to be halted for a time as the closure of the fund was quashed. That has now restarted. There is no doubt that the level of anxiety understandably felt by those people who do not have a support plan begins to reduce once a plan is in place. We believe that that trend will continue as we move forward.

In terms of the essential nature of how we interact with the local authorities, a code of practice is now in place between the local authorities and the ILF. It has been drawn up with the Local Government Association. One of the reasons why—in fact, probably the reason why—we are now contemplating removing, in the words of the noble Lord, Lord Low, this anomaly and trying to bring it into the mainstream is that the quality of care provided at a local level by local authorities, on all the evidence I have seen, has risen dramatically over the past 25 years, to a point where that can be now considered. I will come on to the central part of that, which is the Care Bill. But there is that code of practice, which sets out the criteria for those visits to be undertaken with support and, crucially, that it is the duty of the local authority to ensure that the support plan is in consultation with a current member of the Independent Living Fund. If they are not satisfied with that, then it is also the duty of the local authority to signpost them in the direction of where they can receive advocacy and support in order to address their concerns and make sure that they actually get the help that they need, delivered in a seamless way.

I acknowledge the depth of concern shared by many users about how this decision could affect them. Some are concerned that they will not qualify for local authority support or that reductions to their care packages will mean that they cannot secure the independent living outcomes that they now achieve. This was a point raised by several noble Lords. It is right to address some of these issues in more detail. Local authorities already have a statutory duty to fund eligible care needs. The Care Bill will introduce a new national minimum-eligibility threshold for England in order to receive support from the Independent Living Fund. The two are very much part of the package.

The majority of current users, around 15,200, must have local authority funding of at least £340 a week. It is reasonable to assume that this group have support needs that mean that they will qualify for support from their local authority. In fact, that point, which my noble friend Lord Cormack raised, about having the minimum guarantee, I think is contained in that minimum eligibility and also in the code of practice. It is also right that the Government consider the position of all disabled people. The noble Lord, Lord Low, referred to the point about the slightly anomalous position about disabled people deciding about the Independent Living Fund—rather, the position of all disabled people when deciding how best to distribute the available resources—but does not believe that

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continuing with the current two-tier system is the right approach. It is becoming increasingly difficult to justify the present arrangements.

On the position for those who applied to the ILF before 1993, the noble Lord, Lord McAvoy, referred to group 1 and group 2 cohorts who are treated slightly differently. The position of those in group 1, ILF before 1993, some 2,800, is less straightforward. Some of this group may well have needs that fall below the new minimum threshold and will not therefore qualify for local authority support. Most of them, however, do have some local authority support, with almost 27% getting more than £600 a week. This suggests that many will be eligible for local authority support once the ILF closes. The noble Baroness, Campbell, and others mentioned the UN Convention on the Rights of Persons with Disabilities. We do believe that it is compliant with this and are taking great care and careful note of this. The noble Baroness also questioned why a spokesman for the Department for Work and Pensions was responding to the debate rather than the Minister for Health and Social Services. Of course, for historical reasons, the Minister for Disabled People—we talked about the late Sir Nicholas Scott—has always resided within the Department for Work and Pensions. He has, however, a collective role in co-ordinating all responses across Government for and in the interests of disabled people.

Legislation coming into force from April 2015 aims at promoting greater independence and will increase choice and control for disabled people. The Care Bill represents the most significant reform of social care in England in more than 60 years. Local authorities will be required to take individual well-being into account when making decisions about care and support, including the outcomes we want to achieve. The Bill will give users of the social-care system the right to a personal budget, which so many members stress as being critical and instrumental in giving a sense of independence and dignity to disabled people. Broadly similar legislation has come into force in Scotland, and will come into force in Wales in 2015.

I want to respond to the comments made by the noble Baronesses, Lady Hollins and Lady Wilkins, and others about funding. Social care expenditure has not fallen by 20%—£2.7 billion—since 2010-11; £2.7 billion represents the savings that councils have had to make to meet demand. Spending has been roughly flat in cash terms over the period, and the latest survey shows that councils are expecting a small increase in expenditure over the next year.

The noble Baroness, Lady Wilkins, asked about statutory guidance, as did the noble Baroness, Lady Campbell. The Government’s position on how local authorities manage their finances is clear: they should have the freedom to meet their statutory responsibilities flexibly and responsively in line with local priorities. I hear the point made about a postcode lottery. It is a phrase which rolls off the tongue, but I am sure that the noble Baroness, who knows these areas very well, would acknowledge that there are wide differences in the take-up of the Independent Living Fund between local authorities. For example, wide differences in take-up have always existed between England and

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Scotland. We believe that through establishing the code of conduct, through having those personal support plans and, most crucially, through instigating the minimum-eligibility criteria that the Care Bill upholds, these dangers will be minimised.

The noble Baroness, Lady Hollins, asked about monitoring and evaluation. We said in the equality analysis which took place following the court decision

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that we are committed to monitoring the impact of all policies relating to this area. I give a personal undertaking to relay to my colleagues at the Department for Work and Pensions the concerns raised by noble Members of this Committee today to ensure that we have the right monitoring system in place and that those who need this vital help continue to receive it.

Committee adjourned at 6.36 pm.