Baroness Meacher (CB): My Lords, I was not planning to speak today, but I have to rise to respond to the noble Viscount, Lord Falkland. If we were to have a logical system in this country for dealing with drugs, tobacco would indeed be illegal. We have lots of drugs that are illegal in this country that are infinitely safer than tobacco, and we all know that, if we were starting today, tobacco would be unlawful. So I simply do not accept the point that, simply because tobacco is lawful,

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we should allow the market to let rip—very far from it. We know that it is very difficult to make a product such as tobacco unlawful at this stage, but we need to do everything possible to protect the public from the most dangerous drug available in this country today.

Lord Blencathra (Con): My Lords, I declare an interest as on the register of interests. It is a new interest—I recently joined the Lords and Commons Cigar Club, because I was concerned with how the Government have caved in to some of the fanatics in the anti-smoking brigade. They are fanatics, because they seem to hate e-cigarettes, which are good things for smokers to change to, just as much as they hate tobacco cigarettes. There is a powerful case against smoking—we all agree with that—but I would be more interested in their arguments on plain packaging if they would admit that e-cigarettes were actually a good thing for people to change to.

I deeply regret having to oppose my noble friend the Minister. In my 33 years in Parliament, he is the most knowledgeable Minister for Health that we have had in either House. In addition, he is invariably courteous and the most caring and decent man I have ever met. Therefore, I am sorry that, on this occasion, I think that he is wrong.

One knows that a government department or any organisation is scraping the bottom of the barrel to find arguments when we have 21 regulations over 23 pages, and a memorandum trying to justify them running to 103 pages and 388 paragraphs, most of which have nothing to do with plain packaging but make very powerful arguments against smoking in general. The department has scraped together every possible and bogus argument that it can to support the case. Many of the arguments that I have read in the impact assessment seem to be different from the contents of my noble friend’s speech. Paragraph 230 says that local authorities in 2007 spent £342 million on dealing with cigarette litter alone. What an extraordinary figure. That is absurd nonsense—but it adds to it by saying that plain packaging will lead to further savings on litter collection but that the department cannot quantify them. Dead right it cannot quantify them, because I think that they are quite spurious. This reminds me of the Home Office claim during the draft communications data Bill that it would bring about savings of £6 billion per annum, when that £6 billion was based on terrorist attacks which it considered would no longer take place if the Bill was passed.

All the evidence suggests that standardised packaging will lead to a big increase in the illicit market. That is the view also of Commander Roy Ramm, a former Metropolitan Police commander, who gave evidence to the Lords Select Committee. If even I as an amateur, on my £99 Canon printer, can now easily manufacture a matt standard cigarette packet—and, yes, I can do Helvetica and Pantone grey 42 at 8 point, as per the regulations—what will the big criminal gangs in Romania and Bulgaria do? At least they will increase the market for offset litho printing machines. The impact assessment makes tortuous assumptions to get out of admitting that it has not got a clue on the increase in illicit cigarettes that we will inevitably see. Paragraph 192 says:

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“We conclude that there is a sizeable likelihood that there will be no discernible increase in the illicit market. However, we also conclude there is a chance that there will be an increase in the illicit market”.

I invite noble Lords to look at paragraph 192—that is exactly what it says. What a way to make policy. We do not know if it will be good or bad, but we will carry on regardless.

Then there is the Australian experience, which has been cited already, and which the Government call in aid even though it has been running for only 18 months.

Paragraph 93 of the impact assessment says:

“At this time it is difficult to conclude what the impact of standardised packaging on Australian smoking prevalence has been, due to confounding issues of a general decreasing trend and changes to tobacco prices”.

So, although we do not know whether it is working in Australia, we will carry on with our policy regardless. That is not a way to make policy. Australia is conducting a post-implementation review, but we are not even waiting to find the Australian Government’s conclusions.

All the evidence suggests that price is the big determining factor in people giving up smoking. With an increase in the illicit market and the fact that counterfeiters will be able to sell cigarettes more cheaply in the pubs, clubs and other outlets that they use, we are likely to see an increase in consumption of even more dangerous tobacco as criminal gangs are able to sell it more easily—they will use even cheaper, nastier tobacco. Nor will we be able to police it properly: the whole Codentify system is in jeopardy and will not be able to easily identify illegal and dodgy cigarettes. I say to the noble Lord, Lord Faulkner, that the system may not be perfect but it is better than nothing, which is the Government’s policy if they go ahead with plain packaging. The idea that a person in a pub will check the barcode before he buys a £5 packet of cigarettes, rather than go to a proper newsagents and get a £7.50 one, is just nonsensical.

I conclude that this is unfortunately a knee-jerk SI. We should wait until we get proper results and measured evidence from Australia. That is the only sensible way to make policy on this important issue.

Baroness Howarth of Breckland (CB): My Lords, I had not intended to speak this afternoon, although I want to congratulate the noble Earl. I was with him on the beginning of this journey. I think that he has taken this through with due care and diligence. At the beginning, some of us feared that he would not be on the side of the anti-smoking brigade, but he has taken some of these measures very carefully into legislation. As the noble Lord, Lord Blencathra, was speaking, I realised that I was a fanatic—so as a fanatic, I will make just three points.

First, with the noble Lord, Lord Faulkner, I introduced the first Bill that tested the arguments in this House, the London Bill, when the noble Lord, Lord Faulkner, introduced the Liverpool Bill. At the time we were told very firmly by the smoking lobby that cancer was not caused by smoking, that we would actually take money out of the health service because of taxes and that we would lose money rather than gain it if smoking decreased. We received quite a lot of serious and

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personal accusations about false information. I began that journey there and was the person who brought forward the order to stop smoking in the Peers’ Guest Room. I think that many people have been grateful for that for a long time.

The second reason that I wanted to speak as a fanatic is that I think that there have been some spurious arguments this afternoon. I spent 10 years in the Food Standards Agency working with the food industry, which has had to change its packaging more than any other industry. If the smoking industry is not flexible enough to do as well as the food industry in organising itself to do something else when it loses this packaging, it does not deserve to be in business. Business has to be innovative.

The third reason I am a fanatic is that I have a niece who I brought up as a daughter. She has two children. The youngest has a heart complaint, which is very serious if she gets into any situation where there is smoke. I say that as a personal comment, but noble Lords will know how strongly and passionately I feel about the protection of our children. It seems extraordinary: if packaging with coloured outsides and attractive labels is not attractive to children and selling the product, why is the industry so keen to save it? That is the sheer, simple logic. If any noble Lords are wavering, perhaps they should wonder why so much money is being spent by the industry to protect packaging if it has no impact; it wants to protect it because it does.

So in some ways I suppose that I am proud of being a fanatic. I hope that your Lordships will be with the Minister and oppose the amendment in the name of the noble Lord, Lord Naseby, as I do.

5.15 pm

The Lord Bishop of Peterborough: My Lords, I, too, was not planning to speak, but I am most grateful to the Minister for bringing this measure before us. I will make a very simple point. Packaging is designed to make the contents of the package attractive. This is about changing culture and changing the way that people think about tobacco and smoking. We all know the health arguments—they are indisputable and very clear. However, many young people, in particular, are still led astray and into dangerous behaviour—into self-harming of a very subtle but difficult sort.

It is our duty and responsibility in this place to care for what we in the church call the “common good”—to care for the well-being of society and, not least, of young people. It is very clear that making something look attractive will make it more appealing. Making it look, through its packaging, less attractive makes it less appealing. It is the simplest of all arguments. If people are allowed to dress up poison to look good, some people will take that poison. I ask noble Lords to please support this measure and oppose the amendment for the good of our young people and our society.

Lord Scriven (LD): My Lords, I thank the Minister for putting before us these proposals to try to protect public health. I declare an interest—not that I am part of any cigar club, not that I have shares in any tobacco

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company and not that I have been wined and dined by a tobacco company. In the last few years, I have seen both my parents die through being long-term smokers, and I have seen the effect that that has had on families. Towards the end of my parents’ lives, when we were talking about their addiction to smoking, they explained that they were attracted to smoking when they were young. Once smokers are addicted, it is very hard indeed to get off the drug.

I want to follow the noble Baroness and the right reverend Prelate by spending a few minutes talking about why I think tobacco companies spend billions of pounds on marketing and packaging. It has become the fifth “P” in the marketing mix. For these companies, it is no longer just about price, promotion, product and placement; now, the package is the most important part in targeting young people. Research by RW Pollay shows that only 10% of people per annum change cigarette or tobacco brands.

On the history of packaging, the law suits, emails, memoranda and notes passed between Philip Morris and its marketing agency make it very clear that the company carries out research through focus groups on the colour, shape and design of its packaging, particularly for young people. Why does it do that? It does so because, if it can attract young people between the ages of 16 and 20—these are not my words but those of the tobacco industry—there is a high probability that the young people will not only start smoking but stay with the brand. That is what packaging is about: it is about addicting the young and keeping them with the brand; it is not about moving market share between brands.

Maybe my language is a bit harsh, but the packaging of cigarettes is about the marketing of death. Out of every two long-term smokers, one will die of smoking-related illness. I do not make that comment for effect or for headlines—the statistics show it to be the case. The evidence from Wakefield and Morley, who carried out research in Australia in the early 2000s, long before standardised packaging came in there, made it very clear that companies do a couple of things to try to ensure that people take up their brands. Companies can no longer advertise on TV, can no longer sponsor sport et cetera and can no longer have big billboards, so they look at the shape of their packaging. They experiment with colour—the lighter the colour, the more it is perceived that that brand is somehow safer, of milder tar. They use colour and shape for young people. They talk about the masculinity of colour and of shape. They go for women and say that certain colours and shapes can actually attract women.

Let us be very clear what this is about. This is not about waiting for evidence from Australia: there has been evidence since the 1950s, when Philip Morris used to spend $150,000—equivalent to $1 million today—on the shape and colour of its packaging to get people to take its product at a young age and to addict them for as long as possible. That is why I welcome what the Government and the Minister are doing.

We have been on a journey to try to deal with the harm. In answer to the noble Viscount, Lord Falkland, the reason that, as a former leader of Sheffield City Council, I would not have accepted this kind of approach

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for restaurants and licensing is because with this product, which is addictive, there is also a harm principle—harm not just to the individual concerned but to others in families and to others around people who smoke. The role of government is to balance that harm principle. I would never do that for people making a choice over a restaurant, but there is a difference with cigarettes and tobacco.

I conclude by saying that I sat with both my parents as they died. I have seen others who tried to get off this addictive drug, and have seen and read about the tactics of the tobacco industry. I understand that the small thing called a packet is now so powerful in getting people on to this drug that it is important that, as a Government and as legislators of this country, we do all we can to prevent those young children from starting on that journey of the marketing of death. It is for that reason that this is not just a sensible step but an essential one to save lives. We need to make sure that people do not use marketing to addict people to something that is both dangerous and effectively means that one out of every two smokers will die in the long run.

Lord Walton of Detchant (CB): As a small boy in a mining village in County Durham, where my father was a schoolteacher, I was introduced to Woodbines at the age of 11 and started to smoke intermittently but frequently. When I went to medical school, I am horrified to tell your Lordships that we were advised by our teachers to smoke in the dissecting room to remove the smell of the carcasses which we were dissecting. The professor of physiology said that he could not live without smoking and that we were therefore fully entitled to smoke all the way through his lectures. Practically every medical student in those days did.

After graduation, when I eventually became second in command of a hospital ship sailing through the Mediterranean to Palestine and various other places, I could buy a 50-can of Senior Service cigarettes for one shilling and eight pence and that can would last me two days—25 a day I was smoking. None of us at that time knew the dangers of smoking. When I came back out of the Army and started to work in a hospital in Newcastle and then in the National Health Service, slowly but surely the work of Richard Doll and his colleagues on the desperate effects of smoking began to emerge. Eventually, thank goodness, I had the strength to give up smoking—with difficulty—in my late 30s. It was a struggle but I made that sensible decision and thank goodness I did; otherwise, I probably would not be here now.

Smoking tobacco is one of the most appalling health hazards of the age—there is no question at all about that. Not only does it cause cancer of the lung and of other organs such as the bowel and bladder, it has a very powerful effect on the cardiovascular system in causing coronary artery disease and stroke; it also has a desperate effect on the respiratory system in causing chronic obstructive pulmonary disease. It has a devastating effect on all kinds of illness. For that reason, I have been delighted to participate in debates in your Lordships’ House over the years leading to bans on advertising and on smoking in public places—

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bans that have all been introduced by Parliament in good sense. Any effort of any kind that can prevent young people taking up this appalling habit is well worth while.

I say to the noble Lord, Lord Naseby, that my friend Sir Cyril Chantler is not a master of the kind of market research that he talked about but he is an expert in epidemiology and in statistics, and his research clearly demonstrated that standardised packaging is,

“likely to lead to a modest but important reduction over time on the uptake and prevalence of smoking”.

Any measure that has that effect and prevents young people taking up smoking is well worth while, and for that reason I regard standardised packaging as another essential regulatory measure in addition to the ones that have been passed by your Lordships’ House and by Parliament in general in having the effect of preventing youngsters from taking up this appalling habit.

I therefore strongly support the regulations, I strongly support the excellent introduction by the noble Earl, and I am afraid that I regard this Amendment as having another devastating effect, which is without question not necessarily sponsored but supported by the tobacco industry, which has done so much to delay the development of these important public health measures, which have made such a great contribution to public health.

Lord Geddes (Con): My Lords, like my noble friend Lord Blencathra, I declare an interest as a member of the Lords and Commons Cigar and Pipe Smokers’ Club—and proud of it. Also like my noble friend Lord Blencathra, I commend and congratulate my noble friend the Minister, who could not be a nicer man, on leading the debates on this subject and indeed on tobacco-related products in general so courteously over many years.

However, I am glad to support my noble friend Lord Naseby. I may be the only Member of your Lordships’ House who has experience of plain packaging in this country; I am trying to see whether anybody is going to disagree with me. That was when I first joined the Navy as a national serviceman aged just 18, when I was offered what were called “Blue Liners”. They came in totally plain packets and all there was on the cigarette was a minute blue line running along it—no name of the manufacturer, nothing of the sort. It certainly did not deter me from taking up smoking, nor did it deter any of my colleagues. I just do not believe that plain packaging will deter the young—who ought to be deterred; I could not agree more—from taking up smoking.

5.30 pm

Lord McFall of Alcluith (Lab): My Lords, I want to provide a few anecdotal points in this debate today. I was prompted by the remarks made previously about criminals engaging in illicit cigarettes. Eight or nine years ago, I went on a parliamentary visit to China and saw for myself the number of sophisticated cigarette factories that the Chinese were closing down every week. In China, 25 to 30 factories were closed every week. But in the UK, the total number of Customs representatives that we had patrolling China was exactly

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one, and that person was based in Hong Kong. I say that if the Government want to crack down on this illegal trading, which is supposed to be producing about one in three illicit cigarettes in London, they have to tackle it very robustly at HMRC level. That is the lesson that we have to learn from this.

I was a smoker when I was young. The noble Lord, Lord Geddes, made the point that plain packaging on cigarettes did not have any effect on him. It did not have an effect on him because—I say this with due respect—that was a number of decades ago. At that time, there was a culture of smoking. All of us smoked at the time; I smoked when I was in school. In fact, we smoked Woodbines. If anyone has seen the Woodbine packaging they will know that it was not very attractive, so the more sophisticated ones went on to Benson & Hedges or Marlborough. We had a particularly nasty teacher in the school, who was a smoker. He could detect the schoolboys who were smoking. He smelled our hands, called us smoky beasts, took our five Woodbines or whatever off us, and gave us a belt at the same time—not very fair. But lots of us were engaging in smoking, because that was a good thing to do.

I was brought up very short when my late father had to enter hospital with vascular problems. I visited the Western Infirmary in Glasgow—this was about 50 years ago—and to this day, I remember the name of the consultant and I remember the brutal message that he gave me. The consultant’s name was Mr Gray—Mr Reid, sorry. Mr Reid—I wrote it down, but that is what happens when you get into the House of Lordssaid to me, “Your father is suffering from severe vascular problems and he will most likely have to have his legs amputated”. Indeed, he had both his legs amputated. Mr Reid asked me whether I was a smoker, to which I said yes. He said, “Listen, my boy, you look round every bed in my ward and you will see no one other than smokers, so the lesson I have for you and your friends is that the sooner you stop smoking the better”. That stayed with me. I did stop smoking and it was the best thing that I did in my life.

I commend the noble Earl for the work that he has done and say to him that this legislation has come not a day too soon.

Baroness Tonge (Ind LD): My Lords, I cannot resist putting in my oar at this stage, very briefly. I have been associated with the anti-smoking campaign for many years, in the Commons and in the Lords. I gave up smoking in 1974, I think—the noble Lord, Lord Walton, will correct me—when the report was published on the links between smoking and lung cancer. I had taken up smoking as a teenager—I say this to support all those people who say that packaging is important in attracting young people to start to smoke—and was taught to smoke by my brothers and their friends in somebody’s back garden because they did not want a sister who choked and did not know how to do it. I do not think that we used the word “cool” in those days, but they wanted me to be cool and be able to smoke. It must have been a very rich friend of my brother, because the cigarettes that he produced to teach me were those wonderful multicoloured ones with gold tips—I think that they were called cocktail cigarettes;

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I shall not mention the brand. I had never seen anything quite so attractive in my life and, for a while, I was seriously hooked on them until I found out how much they cost. I then investigated something called Black Russian, which were even smarter, if that was possible. I as a teenager then knew perfectly well that it was not just the packaging but the appearance of the cigarettes that was attractive. They were very smart to be able to handle because they were different colours—some noble Lords are smiling; they obviously remember them.

What is important about this measure is that it tackles the appearance of cigarettes, which should be uniform. I wholeheartedly support it. I am glad that I gave up smoking all those years ago. I hope that the majority in this House will support the regulations.

The Earl of Erroll (CB): My Lords, I do not smoke. I am married to a smoker and I do not like her smoking, but that is not the point. The point about legislation is its effectiveness. What worries me about gesture legislation is that it comes about because something ought to be done about something.

As far as I know, with the current packaging situation, we have about 19% of the country smoking. Without any advertising, packaging or public involvement, we have about 21% of the country using illicit drugs. It does not seem therefore that packaging is necessarily the determining effect. If anything, the more you drive smoking underground, the more attractive it seems to become. We should be slightly careful how we tackle it. Perhaps it should be looked at as part of the overall issue of how we deal with the problem of addiction and drugs instead of trying to target a little bit of advertising, with lots of people having preconceived ideas. I am not a qualified advertising man, but I think that the purpose of packaging is to try to make somebody switch from one brand to another. I do not think that it is what makes people smoke, but I could be wrong. The statistics suggest that we should not drive it underground.

Lord Jopling (Con): My Lords, I do not want to trump the ace of the noble Baroness, Lady Tonge, when she said that she gave up smoking in 1974 but, in 1950, at the end of my first year at university, I became very ill. I spent 12 weeks in hospital with a chest complaint—the doctors thought that it was tuberculosis, but mercifully it was not. At the end of it, the surgeon came to me—he was the professor of thoracic surgery at Newcastle, George Mason; the noble Lord, Lord Walton, will remember him. He said to me, “I think you’re going to be all right but, tell me, do you smoke?”. I said yes. He said, “Well, you shouldn’t”. I said, “Oh, come on. My father’s been talking to you”. He said, “No, I haven’t talked to your father, but one of our students in the University at Newcastle”—it was Dr Strang, who again I think the noble Lord will recall—“has just written a thesis where he has claimed to find a connection between smoking and lung cancer. I’ve scanned it and I haven’t properly been through it, but I found it very compelling. You’ve done the first year of a science degree. You will understand not all of it but most of it, and I’ll give it to you”. The following day there arrived on my bed in the hospital the thesis by this young student. I read it and I was so horrified

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that I have never smoked a cigarette from that day to this—I was smoking about 25 a day at that time. Ever since then, I have taken a great interest in the connection between smoking and lung cancer. I heard what the noble Lord, Lord Walton, said about the horrors of tobacco, which I thoroughly support. All the time since, I have listened to the arguments one way or another, as we have listened to the arguments here today.

I come back to what the noble Lord, Lord Faulkner of Worcester, said earlier about the publicity of the tobacco industry. I remember so well through the 1960s and 1970s, when I was in the other place, what I can only call the wicked advertisements, publicity and PR of the tobacco industry. I think the connection between smoking and lung cancer became clear in the 1950s, yet in the 1960s and 1970s the tobacco industry still tried to pretend that there was no danger whatever. That really was wicked.

I have not, I confess, examined the arguments about packaging this time but I listened to the arguments tonight. Bearing in mind the negative start I made—I admit it—when looking at the publicity of the tobacco industry, it seems that this is an experiment well worth trying. For that reason, I most strongly support the Government’s line tonight.

Lord Hunt of Kings Heath (Lab): My Lords—

Lord Stoddart of Swindon (Ind Lab): I have been very patient. Let me first declare my interest: I am a member of the Lords and Commons Cigar Club. Although I am a non-smoker, they tolerate me. I suppose I am an associate member rather than a full one.

The more I have listened to this debate—and I have listened to the whole of it—the more I feel that it should have been about a Bill to abolish tobacco. It has not really been about packaging but about the evils of tobacco and the tobacco companies. The attack on the tobacco companies by the noble Lord, Lord Faulkner, was one of the best I have ever heard him make. No doubt they will take note of what he said. However, the noble Viscount, Lord Falkland, was right. If we believe that tobacco is so dangerous—the noble Lord, Lord Walton, had no doubts about how dangerous it is—we should bring forward a Bill to ban tobacco as a dangerous drug. So long as that is not done, all this talk about tobacco is sheer hypocrisy. The Government are hypocritical about it because they do not want to lose the money that it gives to the Exchequer. They are trying to get rid of tobacco smoking but they will not come out and say so in the open. They will do it by stealth. This order is one of stealth.

I have been in this House since 1983 and in that time have spent some 25 years talking about tobacco and restrictions on it. Indeed, I remember that during the last Government I sat in a committee on the same side as the Minister, who then opposed the—what was it called?—ban on tobacco display. We were on the same side at that particular time, as he will recall. That went through but, of course, it has not yet been fully implemented. It does not come fully into law until April. Before we have the display ban, we now have the plain packaging ban. It would be useful if we could

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implement previous legislation before we start bringing forward more legislation. Does the House not think that that is sensible? The Government obviously do not think that it is.

5.45 pm

Then there is the ban on smoking in cars; even that has not come into operation yet. It is now beginning to be understood that it will be difficult to enforce. It seems to me that it was absurd to pass such legislation, because the fumes coming into the car all the time, as they do, are probably more dangerous than the occasional smoke that the driver or passenger in the car might care to have. It would be useful if we could implement those laws that we have passed before we put yet another law on the statute book.

In relation to tobacco itself, as I have said, I am a non-smoker, but I resent the demonisation of people who do smoke. It is not right in a democracy that we should treat such people as pariahs. That is what is happening to them and I believe that that should not be done in a democracy.

When the noble Earl introduced the regulations, he said that this provision would not be extended to other foods or habits—but he will probably find that he is on the wrong track. I was reading in today’s Times a little piece which says that Susan Jebb, the Government’s obesity adviser, wants snacking on the move and eating meals without vegetables to become socially unacceptable. She wants the Government to learn from tobacco control. If that is what the Government’s own adviser has said, quite clearly further restrictions may be on the way.

Before I sit down I will talk about some other dangers that people face, for example from alcohol. It has been said in this debate that tobacco is the most dangerous drug. I can assure your Lordships that it is not; the most dangerous drug is alcohol. In fact, it is not only responsible for disease—I saw a figure yesterday saying that it causes £50 billion of harm to the National Health Service—but socially bad as well. If people smoke a cigarette, they do not go home and beat up their wives and children. People who are full of alcohol very often do that. Outside pubs, people also get stabbed but they do not get stabbed if they smoke a cigarette. So alcohol is the most dangerous drug, yet it is advertised certainly as much as tobacco, and perhaps even more. Bottles and cans of alcohol are full of great advertisements and colourful—yet, as I have said, it is the most dangerous drug that there is.

Finally, we are now told—in some papers, anyway—that obesity is more dangerous than tobacco, which contradicts everything that has been said here this afternoon. When the Minister says that the Government do not intend to go on to other products and bring in bans or restrictions on advertising them, he may well be proved wrong. The fact that we are interfering with an industry’s right to advertise its product is dangerous to our democracy and ought not to be allowed or supported in this House, of all places.

Lord Hunt of Kings Heath: My Lords, I sense that the House is ready to come to a view on this very interesting matter, and I am looking forward to the

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response of the noble Earl, Lord Howe. I should start by declaring my interest as president of the Royal Society for Public Health.

Not surprisingly, noble Lords will know that I support the regulations, for which the Labour Party campaigned vigorously. The noble Lord, Lord Stoddart, is right that they come on the back of a successful amendment in your Lordships’ House to ban smoking in cars when children are present. Like the noble Earl, I pay tribute to the noble Lord, Lord Faulkner, the noble Baronesses, Lady Tyler and Lady Finlay, and the noble Lord, Lord McColl, for their outstanding work on this issue in your Lordships’ House.

I have some questions to put to the noble Earl, Lord Howe, in relation to the effectiveness of the measure, following the debate. That is the fair test that we need when reaching a decision. First, can the noble Earl confirm that opinion polls have shown very strong support among the public for this policy? Does he agree with me that, if we look back at the measure we passed in relation to smoking in cars with children present, again the public showed enormous support for the action that was being taken? It is not as if we have an authoritarian measure, imposing a sort of public-health view on the public; what we have here is a sensible measure that the great majority of people in this country support.

I turn now to the evidence. I listened with care to the comments of the noble Lord, Lord Naseby. Does the noble Earl stand by the evidence contained in the impact assessment published with the Explanatory Memorandum? Is it his view that, far from what the noble Lord, Lord Naseby, said, the evidence is clear about the Australian experience so far? Industry leaders have talked about market decline in Australia. On a point made by the noble Lord, Lord Walton, I refer to Sir Cyril Chantler. He may not be a marketing expert, but, goodness me, he is a man of enormous reputation in his ability to sift evidence, so can the noble Earl confirm that Sir Cyril Chantler took a highly dispassionate view on this issue? He made himself available to people on all issues. It is not an emotional report; it is a dispassionate, weighing up of the evidence.

On the issue of illicit trade, can the noble Earl confirm that the HMRC concluded that standardised packaging is not likely to have a significant effect on that? In answer to the point raised about the paragraph in the assessment, is his reading of it that, on balance, it is “very unlikely” to have an impact on illicit trade? The words, “very unlikely” mean that obviously there is a small percentage chance that it might not. That is my reading of that paragraph. Will he confirm that I am right about that?

As for the view of the noble Viscount, Lord Falkland, that because it is legal we should therefore not place any controls around it, I fail to understand the argument. Driving is legal, but we do not recoil from setting speed limits. There is general support for seat belts. Is that not the same issue? It is a legal activity, but we are right to place constraints on it to safeguard people from its worst effects.

On whether the packaging industry will be hit by the change to plain packaging, can the Minister confirm that cigarette packaging accounts for less than 5% of

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all packaging cartons manufactured in the UK—and, of course, packs will still be required in future? Perhaps he can then address points made about questions asked in the other place that were not answered. There is a question about the process and timetable to be followed once the regulations, if accepted by your Lordships’ House, are put in place.

The question of enforcement was raised today. I understand that several local authorities have advocated the need to ensure that trading standards officers are equipped and trained to implement the measure. That is clearly important, and perhaps the Minister can say something about the programme by which the Government intends to help local authorities once the regulations come into law.

My view is that the noble Earl, Lord Howe, in his speech today, in the regulations, in the Explanatory Memorandum and in the impact assessment has made a very powerful case for why the regulations should be passed. I sincerely hope that the House will listen to that and pass the regulations.

Earl Howe: My Lords, this has been a very powerfully argued debate. I am grateful to those noble Lords who have welcomed the regulations for the many supportive points that they have made. I also thank my noble friend Lord Naseby for setting out his objections and concerns with his customary clarity and courtesy. Several noble Lords have already done part of my job for me in responding to my noble friend’s critique, but I believe it to be incumbent on me to address directly all the matters that he raised, as well as the questions posed by other speakers.

I turn to the issue of the illicit trade and the evidence from Australia. Contrary to what the tobacco industry would have people believe, the evidence from Australia does not show an increase in the illicit market in that country following the introduction of plain packaging. There have been a number of criticisms of the tobacco-funded reports on that issue. It is therefore useful to consider the data provided from official Australian government sources. Official data from Australia on the use of illicit tobacco shows a drop in those aged 14 years and over currently smoking illicit tobacco following the introduction of plain packaging. From 6% using illicit tobacco in 2007, the figure dropped to 5% in 2010 and then to under 4% in 2013—after plain packaging had been introduced.

A study published in BMJ Open analysed data from smokers before, during and one year after the introduction of plain packaging in Australia. The proportion of smokers reporting current use of illicit tobacco did not change significantly after plain packaging was introduced. I assure the House that the Government have looked very carefully at the potential impact on the illicit market. Tackling tobacco smuggling is a government priority. I can tell the noble Lord, Lord McFall, in particular, that, due to the fantastic work of HMRC and others, there has been a long-term decline in the tax gap for tobacco products over the past decade. The potential impact of standardised packaging on the illicit trade was considered extensively by HMRC, Sir Cyril Chantler, the Select Committee’s inquiry on smuggling, the Trading Standards Institute and RUSI. They all concluded that standardised

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packaging will not have a significant impact have on the illicit market. HMRC has undertaken a detailed assessment of the potential impact of standardised packaging on the illicit market, which is the most comprehensive and reliable information available. Its assessment is that:

“We have seen no evidence to suggest the introduction of standardised packaging will have a significant impact on the overall size of the illicit market or prompt a step-change in the activity of organised crime groups.”

The Trading Standards Institute, which has extensive experience of tackling illicit tobacco at retail level, said in its consultation response that it,

“is aware that the tobacco industry regularly argues against standardised packaging for the reason that it will inevitably lead to an increase in the illicit tobacco trade. The Institute does not regard this as a valid argument”.

My noble friend referred to the system known as Codentify. That system is a voluntary security feature developed and controlled by the tobacco industry. We know that HMRC is starting to make use of the system to assist in identifying illicit tobacco. We are working across Government to ensure that anti-counterfeit systems that are useful to HMRC and other enforcement agencies now and in the future can continue to feature on standardised packs. That will require such anti-counterfeit systems to be put on to a statutory footing.

My noble friend suggested that the prevalence of smoking had increased in Australia and that standardised packaging had not helped. Australian government figures show that smoking prevalence is in fact at an all-time low since the implementation of standardised packaging, with a 15% drop between 2010 and 2013. This change is likely to be attributable to the cumulative effects of a range of policies, including standardised packaging.

My noble friend also referred to the study by Kaul and Wolf apparently showing that smoking had increased among teenagers. The Kaul and Wolf report was funded and its release was closely directed by Philip Morris International, part of the tobacco industry. It was based on a specific survey of population smoking that is not intended to provide reliable estimates of smoking among teenagers, and the sample size was very small. It also compared figures immediately before and after implementation, and the effects of standardised packaging are more likely to be gradual. It is not a reliable study, we suggest, from which to draw any conclusions.

My noble friend Lord Blencathra urged the Government to wait for more evidence from Australia. He may like to know that studies in Australia have found that smokers buying standardised packets reported being more likely to prioritise quitting than smokers using fully branded packs. Calls to quit lines have increased. Smoking has decreased in outdoor cafes and fewer packs are being displayed on tables.

What has happened to tobacco sales in Australia? There have been suggestions that sales have gone up. Sales of tobacco can be measured in many different ways—sales by manufacturers to wholesalers, wholesalers to retailers or by retailers to consumers. Different pictures of sales emerge depending on the source of the data and the timeframe. In fact, official government data from Australia suggest that a continuing decline

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in per capita consumption of tobacco products has taken place. Commonwealth Treasury figures show that excise and customs clearances of tobacco declined by 3.4% in 2012-2013, and that is generally regarded as the most reliable indicator of population sales.

I turn now to the print industry and my noble friend’s complaint that more time should be given to the print industry to enable a proper lead-in period. Standardised packaging is not a policy that has been sprung on the print industry. It has been under discussion since 2008 and two public consultations have been held on the subject, as I mentioned earlier. The regulations would come into force in May 2016, which provides the print industry with a lead time of over a year. I confirm to my noble friend Lady Tyler that the regulations will be implemented at the same time as the European directive is transposed in May 2016 so the industry does not have to undergo two changes to its manufacturing process.

The previous changes to tobacco packaging, such as the requirement for picture warnings in 2008, showed that a 12-month period in which to sell through old stock is appropriate and that stock sells through more quickly than one year. In answer to my noble friends Lord Naseby and Lord Blencathra, it is not true to say that standardised packaging will make it easier to copy packs and therefore make things easier for counterfeiters. Standardised packaging would remain complex to counterfeit. The packs will continue to feature large and complicated to reproduce picture health warnings and will retain all the security features currently on packs, including covert anti-counterfeit marks. The European Union directive includes provisions on the printing of labels. As I said, we have given very careful and measured consideration to that. We believe that the synchronised introduction of the provisions in the directive with the coming into force of these regulations is a sensible course.

Mention was made of intellectual property issues. As I said earlier, we have given very careful and measured consideration to all legal aspects of the policy, and this includes intellectual property aspects. These regulations regulate the use of tobacco branding, which includes trade marks. I emphasise that we regard tobacco as a unique consumer product in this context because it is a uniquely harmful consumer product. For the record, we do not consider that these regulations breach intellectual property laws or our international obligations in relation to trade marks.

I listened with care to my noble friend Lord Geddes, who argued from experience of his National Service that plain packs would not deter smoking. He referred to “Blue Liner” cigarettes, which I was interested to hear about. However, there are several key differences with regard to our proposals. First, the regulations we are considering mandate health warnings, which did not appear on “Blue Liner” cigarettes. Secondly, there is the colour of the packaging. Our regulations take into consideration the extensive market research the Australian Government undertook to determine the most effective designs for standardised packaging. Of the eight different colours tested during the research, dark brown packaging was the least appealing and thought to contain cigarettes most harmful to health.

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After carefully considering the research, our regulations adopt the same dull brown colour as the packs required in Australia.

The noble Viscount, Lord Falkland, referred to the possibility of unintended consequences. We believe very firmly that the benefits of these regulations far outweigh any of the unintended consequences that might come from introducing standardised packaging. In some cases, we are not convinced that certain predicted unintended consequences are anything more than scare stories. The department has run two consultations on standardised packaging which contributed to our understanding of all the relevant factors in making our decision.

My noble friend Lord Blencathra queried the Explanatory Memorandum. I think he might have been referring to the impact assessment, which was rated green by the Regulatory Policy Committee, which means that it is fit for purpose.

The noble Lord, Lord Hunt, asked about public support for standardised packaging. Multiple surveys have shown that the public support it. A YouGov poll in spring last year, with a representative sample of 10,000 people, found that 64% of adults in England supported standardised packaging while 11% opposed it. Even among smokers, more people were in support of or neutral towards standardised packaging than opposed it. After the implementation of standardised packs in Australia, support for the policy increased from 28% to 49% among smokers. Survey data from Australia show that more smokers approve of the policy than oppose it.

The noble Lord, Lord Stoddart, made a point that I have heard him make powerfully before—that alcohol is, in fact, the most addictive and harmful drug, not tobacco. I just say to him, as mentioned in my speech, that all smoking is addictive and harmful to health, and half of regular smokers are eventually killed by smoking-related illness. That is simply not true of other consumer products such as alcohol. Tobacco is being treated uniquely in regulatory terms because it is a uniquely harmful consumer good. All smoking is addictive and harmful to health. Therefore, to be absolutely clear, we see the introduction of standardised packaging as a unique approach to tackling smoking and its appalling effect on public health. It fits within a comprehensive tobacco control policy.

We are proud that smoking rates are the lowest ever recorded in this country, and my noble friend Lord Naseby was right to point that out. However, we cannot rest on our laurels. In other parts of the world we have seen that if Governments take their foot off the pedal with tobacco control, smoking rates can go up. For the good of public health, we want to continue our policy action to see smoking rates continue to fall, which is why I once again commend these regulations to the House.

Lord Naseby: My Lords, I should like, first, to thank my noble friend on the Front Bench for addressing the four points that I raised and were vital to be addressed. I shall comment on only two short matters because I sense that the House wants to move on.

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My first comment is on youth smoking, which a number of Members raised. One may dispute this or not, but the facts are that the Australian Institute of Health and Welfare has stated that youth smoking rates have not declined as a result of standard packaging; in fact, they are at a seven-year high. Secondly, there is the matter of illicit tobacco consumption, which is the issue that worries me most. One has only to go round a building site in the United Kingdom today. I recently did so and checked a bit. Illicit tobacco is being offered on many building sites in this country; it is costing the Revenue and genuine companies a great deal. Not only that, when we look at Australia specifically, which we have done this evening, we see that by mid-2014 in that country illicit tobacco consumption stood at an unprecedented 14.7% of the market—25% higher than it had been in 2012. Whatever anyone says, as far as the industry is concerned—after all, it knows exactly how many cigarettes are produced and sold—that is a crucial area, and a crucial area of public health. Unless someone does something about that, we may well find increasing numbers of counterfeit cigarettes imported into this country. That will have an effect on public health because they kill even quicker than the genuine ones do.

I am grateful to all those who have taken part. I particularly thank my noble friends who have supported me this evening. Some home truths have been spelt out by the noble Lord, Lord Stoddart, the noble Viscount, Lord Falkland, the noble Earl, Lord Erroll, and a number of other colleagues who have supported me. The key issue, however, is a little wider than the tobacco industry, because what this Motion does, if it goes through—I imagine that it may well do so—is totally to undermine intellectual property rights, which are the very foundation of our modern capitalism. Intellectual property rights are fundamental to every business and defend a company from rogue competition—wherever it my come from—and, in my view, from totally misguided Governments on occasion.

I have to decide whether to divide the House. I take note of the fact that in another place nearly 25% of that Chamber voted against the Motion. I sense this evening that about 25% are against this Motion and I thank that 25% for the support they have given me. Nevertheless, it does not seem to me to be terribly productive for us all to march through the Lobbies and for me to get only 25% of the vote, or thereabouts, so with the leave of the House I will withdraw my amendment.

Amendment to the Motion withdrawn.

Motion agreed.

City of Birmingham (Scheme of Elections) Order 2015

Motion to Take Note

6.15 pm

Moved by Lord Hunt of Kings Heath

That this House takes note of the City of Birmingham (Scheme of Elections) Order 2015. (SI 2015/43)

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Lord Hunt of Kings Heath (Lab): My Lords, I am very glad to debate the City of Birmingham (Scheme of Elections) Order 2015 and glad to see that we have such a full House still for this important debate.

This order imposes on our second city a new scheme of elections that commence in 2017. It also changes Birmingham’s current practice of retirement by thirds and moves to all-out elections. Noble Lords need to be aware that last week the Government laid a new order that actually amends the order we are debating this evening by changing the date of the first all-out elections from 2017 to 2018. That order has not been through scrutiny committee and other scrutiny processes and, no doubt, there will be a report to your Lordships’ House, I believe after the next meeting of the scrutiny committee next Tuesday.

I want to raise some issues about the change to all-out elections but I want to set out the context. I have lived in Birmingham for nearly 40 years. It is a wonderful city—very vibrant and friendly—but it faces a number of real challenges at the moment. Its economy has underperformed compared with London, Manchester, Liverpool and Sheffield over many years now. Parts of Birmingham are among the most deprived in the country. In fact, we have more poor children in Birmingham than in any other part of the country and many of our adults are locked in a spiral where they have low skills and cannot take advantage of some of the new jobs that are being created in the city.

Birmingham has a great history, great strengths and potentially has a great future but a lot of that depends on the city council and the quality of leadership it provides. At the moment, it is fair to say that it is being held back by a number of very significant problems. Its children’s services have been rated inadequate or worse for a number of years now. The Trojan horse incident raised a lot of serious issues about the education service in general and about the city council’s engagement and understanding of its local communities. Its financial position, following the equal pay debacle, can be described at best only as horrendous.

The city council is subject to a number of interventions. My noble friend Lord Warner is a commissioner appointed by the Secretary of State for Education looking particularly into children’s services. Sir Mike Tomlinson has been appointed in the wake of the Trojan horse issue and Sir Bob Kerslake, the former Permanent Secretary at the Department for Communities and Local Government, has undertaken an independent review of the governance and organisational capabilities of the city council. That is what I want to focus on. Let me say at once that I believe Sir Bob has undertaken an enormous task. I am very grateful to him for it. His report is well written and many of its conclusions are absolutely right. However, there are some issues I want to raise, particularly in relation to this order.

Where I think Sir Bob is absolutely right is that he says, essentially, that for Birmingham to achieve its full potential and deal with some of the problems I have mentioned, the city council has to rethink its role and the way it does its business. In a telling phrase in the report Sir Bob says it has to end the,

“not invented here, silo-based and council knows best culture”.

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Leadership of the council has changed hands between the three political parties over the past few years. I was a member of the city council a long time ago, but I recognise that criticism. Of all the changes Birmingham needs to make that is probably the one that I would focus on.

Sir Bob goes on to talk about the governance of the city council. In particular, he says that the council needs to clarify roles, responsibilities, behaviours and ways of working expected in relation to the leader, the Cabinet, councillors, chief executive and officers. I agree with that too. I agree that the city council should draw up a robust plan on managing the financial challenges it faces. I certainly agree that it needs to establish a new model of devolution and partnership with key stakeholders. As a former chairman of an NHS foundation trust in Birmingham, I am struck by the inability of the city council to forge strong relationships with other key players in the sector. That is an issue that goes across leadership between two different administrations. I certainly support the recommendation that there should be a combined authority—what I would call greater Birmingham—covering Birmingham, Dudley, Sandwell, Walsall, Wolverhampton and Solihull, rather in the way that Manchester has been developed, in order to deal with some of those cross-local authority strategic issues.

I want to have a debate, because it is important that this is debated, on the proposal about the scheme of elections and the move to all-out elections. Sir Bob says:

“Birmingham City Council is an outlier on the size of the council and the size of its wards. It has 15 of the 20 wards with the largest population in the country”.

Because Birmingham is forecast to have a big growth in population over the coming years, those wards are likely to become even bigger. There are already 120 councillors, but speaking as a councillor in a three-member ward representing 22,000 electors, it is a very tough challenge for 120 councillors to represent effectively a population of 1 million. We are going up to 1,150,000, yet Sir Bob’s proposals are to reduce the number of councillors. For ward councillors, that is going to be a major challenge.

Sir Bob also says that we should move away from the traditional, current election by thirds to all-out elections. If you read the report, he clearly favours reducing the number of councillors and moving to single-member wards, rather than multimember wards, at the same time. I know opinions differ about the merits, or not, of all-out elections and elections by thirds. Essentially, it depends upon what you are used to. I spent time as a councillor in Oxford and I have lived in Leeds and Birmingham, so for me the natural order of things is election by thirds. Equally, I am sure that the Minister thinks all-out elections are the right thing to do because that is what he has experienced. It is a 50:50 argument. I know Sir Albert Bore, the leader of Birmingham City Council, favours the move to all-out elections because he thinks they will provide greater certainty of political control over a four-year period, allow confident medium-term financial and strategic planning for that four-year period and that the majority group will have a clear

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mandate for the whole of the period. Well, that is fair enough—I am not going to argue about that. I like the old tradition of election by thirds; it makes sure that the electorate have an opportunity to have a say on an annual basis. None the less, I very much accept what Albert has said. However, I worry about reducing the number of councillors. Even more worrying, for me, is the fact that the city council will be subjected to a boundary review. The chairman of the Local Government Boundary Commission has already been in the city and has issued a challenge to local councillors to say that, if they do not like the reduction in numbers, they must put up a convincing case against it.

The problem that I have is that, in the original Kerslake report, he identifies that this great city of Birmingham is facing mega-challenges in its leadership and partnership approach as well as in how it operates, the services it provides and the skills of its people. Yet we know that the moment when the commission starts to do its work, in a situation in which it is proposed to reduce the number of councillors, the focus of most councillors’ attention will not be on these core issues of leading Birmingham out of the very difficult situation that it is in. It will be about responding to the boundary commission review and worrying about the new wards, and selection will then take place. Councillors’ focus will be on those really rather secondary issues rather than on the core issue of tackling the problems that Sir Bob addresses.

The reason why I am raising the issue tonight is to ask the Minister to give this some consideration. After all, another order is coming down the line. The last thing that we need in Birmingham is the distraction of a wholesale boundary review, which will get rid of three-member wards—so it will be a mega-change. We need to focus on improving the services in the city of Birmingham. I beg to move.

Lord Rooker (Lab): My Lords, I support the order. I was born and raised in Birmingham, and my first and last jobs in manufacturing were in the city. I am old enough and my memory is still good enough to say that I can still recall my mother’s Birmingham co-op number. I served in the Commons as the Member for Birmingham, Perry Barr, where I went to school and had my paper round, for 27 years. Although I no longer pay council tax in the city, I have just arrived at your Lordships' House from chairing the Neighbourhood Partnership Board at Castle Vale in the city. So I am now an outsider, but I have insider roots, insight and, indeed, support. However, my memory is also good enough to remember how the city was considered by others as a leader over five decades, over a variety of issues—an exemplar.

At the time when the noble Lord, Lord Nash, made the Statement in this House last year on 22 July, I did not get the confirmation—it was buried in the paragraphs—that the Kerslake review would not have any no-go areas. As such, in July, I put in my long-held views to Sir Bob about the governance of the city being split into separate boroughs. I copied my views to the city leadership at the same time—I have always been quite open on this point, which I raised in the 1980s and the 1990s. The city is too big. London does

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not suffer for being split into 32 boroughs, and Birmingham would not suffer for being split into two, three or four boroughs.

Sir Bob, who is soon to join your Lordships' House, has explained to me why his team went for what is in the order, and I accept that. I am not going to go over that tonight; it is not the time. His review makes it crystal clear that, if the city council fails to improve, questions of size will continue to be asked. Improvement is urgently required. As my noble friend just said, there are currently two government-imposed commissioners working in the city due to it failing—I do not like saying that, but that is the reality—in education and in children’s social services. The city has massive potential to return to being an exemplar for strong, good local government, as it was in the past and I want it to do so.

6.30 pm

When I attended the Labour Party conference last year, I did not waste too much time in the conference hall, which is a waste of time. But I did not waste too much time: I went to every single fringe meeting dealing with urban affairs and city growth. I concentrated on that because I knew what would happen. The Kerslake review had been set up; it had been announced in July. Not once at any meeting I went to was the word “Birmingham” uttered as an example of what was being done as a beacon for others. It was always several other examples of cities in the country on various issues. The Birmingham leader knows this to be true because he sat alongside me for the whole of one of those meetings.

Usually when Manchester is mentioned, it turns out to be Greater Manchester that is being referred to. That is a misnomer, but the fact is that it is the 10 authorities working together—which has not been the case in the West Midlands. I remember being in Birmingham Council House with all the local authorities present years ago in 2004, when I was an ODPM Minister dealing with regeneration. I was the soft cop; my official was the hard cop. I uttered the phrase “Greater Birmingham”—I picked bits of the roof off my head later that day.

More recently, when I was chair of the Food Standards Agency I launched the food hygiene rating scheme in the north-west of England in Greater Manchester. Every single one of the 10 authorities was present in Trafford for the launch. In the Midlands I did a couple, separately, as did a couple of other board members. The idea of getting them to do it together was an absolute nonsense. The reality is that working together has not worked in the West Midlands, mainly because of the attitude of the biggest authority. It is the biggest by far. I will not go over the statistics; I put them in a paper to Sir Bob. There is more inequality of size among those councils than anywhere else.

So to the order. Like my noble friend, I have always supported annual local government elections, for a variety of reasons, some to do with governance and some party reasons. That has been the reality. These no longer apply in Birmingham. I think that change to all-out elections should be embraced—there is no doubt about it whatever.

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Single-member wards will be new, but they should be grasped as a positive advantage. The Kerslake review makes it clear that it will be a better system, but there is a phrase in the review that concerns me. It talks about “mainly single-member wards”. The one thing that I would oppose is wards with different numbers of members. I know that this occurs around the country; I am always gobsmacked when I go to various local authorities and I find out there are one-member, two-member and three-member wards in the same authority. I cannot comprehend that. They should all be the same. I know that the Boundary Commission will deal with the details, but I hope that it has not got carte blanche. As far as I am concerned its job is to implement Kerslake, taking account of the practicalities at ground level. I hope that it does not mix the wards.

I think that the total number of wards should be an odd number—I have often wondered why it has generally been an even number. It is not a problem in Birmingham because there has been a written, almost legal agreement for about 40 years about the mayor. We got rid of all that nonsense about not taking the mayor if there is a split because you lose your majority. We have a sensible, written legal agreement between the three parties that has lasted since it was created, probably the best part of 30 or 40 years ago.

I would settle for 101 wards—or a maximum of 105. I do not think that it should be the same as the present number. I know that, looking at the arithmetic, there is a problem with that, but in my view it should be less than the present number. If there are going to be single-member wards, there is an opportunity for there to be very little variation—I would say plus or minus 4% as a maximum so that they are as near as possible the same size. At the moment, they are not; there are examples of massive disparity in the city because the last boundary review was a long time ago.

The population would be about 10,000. Funnily enough, the place that I have just come from, Castle Vale, has a population of exactly 10,000 and the electorate is about 6,500. It has its own postcode. The regeneration area that people have driven past along the M6 has been very successful. Thirty-two out of the 34 tower blocks have come down. Now, people queue up to live there rather than not wanting to be sent there, as was the case with my constituents and those of my late friend Lord Corbett.

I have one suggestion, which is that an attempt should be made—I am not sure by whom—to deal with what I think is the recurring theme throughout Kerslake. As I said, I am an outsider and I have not discussed this with any MPs, although in December I picked up vibrations among some of my friends on the council. They thought, “Oh, nothing’s going to happen with Kerslake until after May”. I told Mr Pickles in December that he had better get on with it because the view was that nothing was going to happen. This is a really serious issue and it should be dealt with urgently.

The recurring theme throughout Kerslake—it is recommended reading in relation to governance; it is not a massively long report—is the blurring of roles between councillors and officers. I was gobsmacked when I read the examples in the report. There is a

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complete lack of training opportunities for elected members. It seems to me crucial that councillors—a bit like Ministers, in a way—understand the difference between governance and management. It is fundamental that there is no blurring of the roles but, sadly, according to Kerslake, that seems to apply to some officers as well. That has grown up because of their culture. Kerslake says that the culture has to change, and that would be pretty radical. Although this is not my preferred solution, I think that the one that he has come up with is just as good in forcing a radical rethink and change: all-out elections and single-member wards. For councillors, it will be a completely new way of working.

The present culture is three-member wards, and changing will not be easy because not all wards are of the same political party. The idea that the councillors will divide the ward up among themselves is wrong; they will not. They will stand for election in the whole ward. In wards in my former constituency there was sometimes a lonely Labour councillor or a lonely Lib Dem councillor. They had the whole 20,000-odd electorate—the population was about 30,000—so the wards were quite large.

Therefore, single-member wards will be different. I do not think—no, I shall be positive about this rather than say, “I do not think”. I think that before anyone is allowed to be a candidate, they should have been on a governance training programme run by an independent body, such as a business school, a university or training specialists in government—but preferably not the Local Government Association, where there is too much of a vested interest.

The political parties really ought to embrace this. We are obviously not going to hear the views of the noble Lord, Lord Whitby, but I think that all the parties should embrace this. I am not seeking a qualification for anyone who stands for election, as that could be risky, but the public are entitled to know that those who are elected understand what their role is—and, more to the point, what it is not. That was the message that I took from Kerslake, and it explained to me why a lot of the negative issues for the city have arisen.

I am not going to go over any particular details, but when I saw how bad this blurring of the roles of governance and management was, I could think of examples where I thought, “Oh, that must be the reason why so and so happened”. This is a serious matter, in the largest local authority in the country. We know it has happened in others, because we have read about some recent examples, particularly in the north, but the fact is that it should not happen anywhere. There should be procedures to stop it happening, whether by the chief executive or other people in local government.

We have an opportunity here. There is the Boundary Commission and, of course, Birmingham currently has a council oversight board as a result of Sir Bob’s report, which is made up of the great and good. They all look very qualified people, they have not been sent up from London and they have experience of local government, at officer, chief executive and councillor

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level. I have faith in them, but they will have to look at the situation in 12 months’ time, when they will expect to see cultural change. One of the ways the parties could show that they are up for cultural change is by doing something about the most serious deficit that Kerslake identified, which is the blurring of the roles of councillors and officers. I support the order.

Lord McKenzie of Luton (Lab): My Lords, I thank my noble friend Lord Hunt for the measured way in which he introduced his take-note Motion. I recognise his knowledge of and attachment to the City of Birmingham. I also thank my noble friend Lord Rooker for his contribution.

We on the Front Bench support the order as it stands. My noble friend Lord Rooker raised some fascinating issues—the same ones that Kerslake raised—about how Birmingham City Council used to be a leader and has lost its way. My noble friend Lord Hunt recognised that as well. The issue of the city being too big was touched on in the report but the conclusion was not to change those matters, certainly for the time being. My noble friends had a different emphasis, as I shall put it, on whether an election by thirds or an all-in, all-out election is the most appropriate. I am bound to say that we on Luton Council changed to an all-in, all-out system in 1976. We supported it then and have supported it since, even though, politically, we have always caught the bad years and ended up in opposition. Thankfully, that has changed, but it is a consequence: you cannot have all the benefits of it.

As for wards which have a different number of members, again in Luton we have two-member wards and three-member wards. Frankly, it works perfectly well and I do not know what the problem is with having that system. My noble friends Lord Rooker and Lord Hunt focused on this issue of the blurring of roles between councillors and officers, which we accept is a significant issue. I suspect it may have got worse for those councils that have an executive-type arrangement, which I think lends itself more naturally to that blurring. It is important to guard against that.

The instrument before us today moves away from councillor elections for Birmingham City Council being in thirds to all-out elections every four years. This was to commence in 2017 but, as my noble friend Lord Hunt pointed out, it has been put back one year. I join with my noble friend in seeking a proper explanation of that change. There is speculation that it was a recognition of the complexity associated with the reorganisation of the council and that longer would need to be provided for the Boundary Commission changes to be put in place. Perhaps the Minister can use this opportunity to clarify matters.

The proposed change came about of course as a consequence of the Kerslake review, which we have heard about. Sir Bob Kerslake was asked last year to lead a review of the governance and organisational capabilities of the city council. The review was conducted on the principles of an LGA peer challenge model and looked at five factors critical to council performance and improvement. These were: effective political and managerial leadership working in partnership; an understanding of the local context and a shared long-term vision for the future, with a clear set of priorities;

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effective governance and decision-making arrangements that respond to challenges and manage change, transformation and disinvestment; organisational capacity and resources focused in the right areas in order to deliver the agreed priorities, including a workforce that understands the priorities and supports their delivery; and a financial plan in place to ensure long-term viability.

6.45 pm

The Kerslake report was clear in recognising the strengths and potential of Birmingham to be an economic powerhouse alongside London, but it was also clear that for the city to succeed Birmingham City Council had to change. The report listed a raft of areas where there is the need for change. I will highlight just a few of them. It said:

“The council must act now to address its significant challenges. Like all local authorities, it must rethink its role and the way it does business with its partners and those it serves, including its relationship with the city’s residents. But there are some issues that are particular to Birmingham City Council. Some of its services are not good enough, such as children’s services”—

which we have heard about—

“and there is dissatisfaction with others, such as waste management. If the financial challenge is to be met the council needs to begin a different conversation with the people it represents”.

On other matters, the report says:

“Birmingham City Council’s size acts as both a badge and a barrier: it has led to a not invented here, silo based and council knows best culture. These characteristics are not an inescapable feature of Birmingham City Council’s size but they need to be acknowledged and addressed. There is much to learn here from other large authorities”.

It says that,

“there is a blurring of roles between members and officers. The relationship needs to be reset and officers given the space to manage”—

an issue we have touched upon—and that,

“the council’s vision for the future of the city is neither broadly shared nor understood by the council’s officers, partners or residents”.

We accept this analysis and understand that my noble friend Lord Hunt does as well.

As for the report’s recommendations, we accept these as well, especially the focus on resetting the governance arrangements, and of course recommendation 4 concerning the electoral cycle and the Boundary Commission. These proposed changes are far-reaching but, we suggest, necessary. Recommendation 4 says:

“The Secretary of State should move Birmingham City Council to all out elections replacing the current election by thirds. In the interest of effective and convenient local government the Local Government Boundary Commission for England should conduct an Electoral Review, that reflects existing communities, to help the council produce an effective model for representative governance. It should aim to complete its work to enable elections by May 2017”—

now 2018, we understand.

My noble friend Lord Hunt is right to seek assurance that the challenges identified by Kerslake and the actions required are not being distracted by electoral processes—I think that was the key argument that my noble friend made. But the recommended switch from elections in thirds to all-in, all-out elections every four years is surely an integral part of the

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change that is necessary. In particular, the report highlights the problem of a culture of short-termism, referring to,

“an inability to focus on longer term problems, including transforming services”,

and suggests that,

“changing the electoral cycle to all out elections can have a significant impact on a council’s ability to change and adapt, provide stability in decision making and aid long term planning and vision”.

We agree with that, as do the Government, I think. We consider that the regulations should proceed and I hope my noble friend will be comforted in this regard by the debate and the understanding of the issues that he has raised.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con): My Lords, I thank the noble Lord, Lord Hunt, for tabling the Motion. It is important that, in the—albeit brief—debate that we have just had, your Lordships’ House reviewed and discussed the important issue of the Kerslake report. I join other noble Lords in recognising the sterling work done by Sir Bob Kerslake in the review of Birmingham, and look forward to welcoming him to your Lordships’ House. He and his team have clearly shown that Birmingham—both the city and the council—are some way from fulfilling their full potential, and indeed their past potential, which noble Lords talked about. The challenges they face are deep-rooted and there are serious problems that they need to face up to, such as an underperforming economy, poor local services in certain respects and no credible plans to address the council’s very significant budget difficulties. That England’s second city faces such challenges is something that should concern us all. I am therefore extremely grateful to the noble Lord, Lord Hunt.

I apologise to the noble Lord, Lord Hunt. I was seeking to meet him in advance of this debate and perhaps speak to him on Sunday. However, being a father of three and it being Mothering Sunday, I was under strict orders not to look at the phone in the key hours of the day. I apologise that we were unable to talk earlier.

I recognise and share many of the concerns that the noble Lord, Lord Hunt, has expressed. Indeed, I found myself in total agreement with the speech of the noble Lord, Lord Rooker. In particular, I listened with great attention to his description of the Labour Party conference. Not having attended one myself, I bow to his view of how the plenary, and indeed the fringe, sessions proceed. Nevertheless, I thank all noble Lords, and the noble Lord, Lord McKenzie, and Her Majesty’s Opposition, for their support for this order. It is important that we come together in ensuring that the great city of Birmingham realises its full potential.

We believe that the change to the election cycle in the city of Birmingham is critical to securing the fundamental reforms that the city needs. The current pattern of elections by thirds has not helped Birmingham’s ability to take strategic decisions. There is, as we all recognise, an inability to focus on the longer-term problems that are holding the council back, including transforming services. When we are children, we are

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often told not to do things by halves—or by thirds, in this case—so perhaps a move to whole-council elections will give the council the impetus that it needs. It will give a four-year stable mandate and facilitate the strategic decision-making that we all desire. It will enable the council more effectively to take those longer-term decisions and forge a strategic and long-term vision for the future and the city as a whole.

The approach of moving councils where reform is imperative to holding whole-council elections is not unprecedented. The previous Labour Government did this in the case of Stoke-on-Trent and we have done this for Doncaster Metropolitan Borough Council, where the first full-council elections will take place in May this year. More generally, the Government are on public record as recognising the benefits of whole-council elections every four years. In our White Paper response to my noble friend Lord Heseltine’s report on promoting economic growth, No Stone Unturned:In Pursuit of Growth, we said that,

“the Government welcomes the adoption anywhere of four-yearly whole council elections”,

while recognising that this was generally a matter for local choice.

The noble Lords, Lord McKenzie and Lord Hunt, raised the issue of the order being made so quickly. I recognise that, following the publication of Sir Bob’s report, matters have moved swiftly and continue to do so. I take this opportunity to apologise to the noble Lord, Lord Hunt, for not alerting him earlier to the further order, which we laid on Friday, which will shift the date for the first whole-council elections from May 2017, as recommended by Sir Bob Kerslake, to May 2018. I shall explain both why we are moving so quickly and why we have changed the start date.

First, as the noble Lord, Lord Hunt, recognises, the situation in Birmingham is serious. Indeed, all noble Lords who took part in the debate made that point. Fundamental reform is essential and needs to be driven forward as quickly as possible. We quickly established the Birmingham independent improvement panel, led by Sir John Crabtree, a highly respected figure in the city whose lifelong commitment to the well-being of Birmingham is known to all. The panel’s role is to provide challenge and advice to the council as it follows its improvement journey in response to the Kerslake report. The council quickly set to work to draw up an action plan to implement the Kerslake recommendations made to it and is now seeking to finalise this, working closely with the improvement panel.

Along with recommending a change to whole-council elections, the Kerslake report recommended that the Local Government Boundary Commission for England undertake an electoral review. The aim of this review, when linked with a move to whole-council elections, is to move the council away from having three-member wards and to enable there to be a smaller council. Such a council, with many single-member wards, will be better able both to represent local people and more effectively to take the tough decisions needed to address the challenges that Birmingham faces. The boundary commission has already started its work. Before it can get to grips with its review, it needs certainty about the

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pattern of elections that the council will hold, hence the urgent need for any order changing the pattern of elections to be made as soon as practicable.

That is what we did. We made the order on 21 January; we laid it before Parliament on the 22 January; and it came into force on 16 February. It implemented fully the Kerslake recommendations, including the start date recommended by the report. We knew that this report had been prepared following many meetings with residents, business leaders, community and faith leaders, the voluntary and community sector, local politicians, council officers, front-line staff, and representatives of other public services. The review heard the views of more than 350 people and received 80 submissions of written evidence.

However, with the order having been made, some suggested that 2018 would be a better year in which to hold the first whole-council elections. This is because Birmingham, like the other West Midlands authorities, would then continue to have no local elections in 2017, 2021 and so on. It would also avoid councillors being elected for just a one-year term, which would be the case for those elected in 2016 if the first whole-council elections were in May 2017. Our sole aim is to do what is best for Birmingham. We have been persuaded that a 2018 start date is on balance better than the 2017 start date, even though it means that a renewed council with a clear four-year mandate will not be in place until one year later.

I assure noble Lords that I fully take on board the points that have been made during this debate. In particular, the noble Lord, Lord Rooker, talked about the importance of training for officers and councillors. That is a very important point to reflect on, because, too often, people put themselves forward for office without perhaps fully understanding the nature of their role and its importance in decision-making.

The noble Lord, Lord Rooker, drew an important distinction between the roles of elected members and officers. Training and the renewal of such training are important not just in Birmingham but around the country.

I am confident that these orders provide a firm foundation for the many changes that are needed in Birmingham—challenges that I know the noble Lord, Lord Hunt, knows only too well. There is an overwhelming consensus that the council cannot carry on any longer as it is. The issues are deeply rooted and will not change overnight, but a start needs to be made now. This order is part of the start and I commend it to the House.

Lord Hunt of Kings Heath: My Lords, I am grateful to the Minister and my noble friends Lord Rooker and Lord McKenzie. I will not speak for any length of time; I want to make four brief points.

First, I endorse what my noble friend Lord Rooker said. Going back to Victorian days and over many decades, Birmingham led the way as a strong exponent of what local government could be. The sanitation improvements, the housing improvements and the Chamberlain improvements showed what a vigorous, confident city could do to improve the lot of its citizens, and it is clear that that is what we want to get back to.

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Secondly, my noble friend is also right that, at some point, we have to face up to the “greater Birmingham” issue. The relationship between Birmingham and the other boroughs in the West Midlands is not what it should be. We cannot take advantage of what we see as a great pendulum swing back to local government and autonomy unless that relationship is sorted out. I agree with my noble friend on his point about Birmingham and the boroughs. In the end, that will be resolved only if Birmingham gives confidence to the other boroughs that a partnership can truly be created.

Thirdly, the roles between councillors and officers are crucial. All I will say is that I hope that the panel that has now been established to help and challenge the city council will focus on governance, relationships and culture. That seems to be where a huge amount of work needs to be done.

Finally, I listened with care to the Minister’s argument and, of course, I support the order. However, I worry that for three years the council will be inwardly focused on boundary commission reviews, new wards, selection and then election. I hope that the noble Lord’s department, in its relationship with the city council and the panel, will do everything it can to ensure that the eyes of the leadership and all those involved with the city council are focused as much as possible on the job in hand: improving service to the people of Birmingham rather than, as I fear, worrying about the boundary review. I was not encouraged by the intervention of the chairman of the Local Government Boundary Commission for England over the past few days. It seemed that he tried to embark on a sort of city-wide debate in terms of boundaries and wards. That is the last thing we need to worry about at the moment. The job in hand is improving Birmingham’s services. Having said that, I beg to move my Motion.

Motion agreed.

Health: Deprivation of Liberty Safeguards

Question for Short Debate

7.02 pm

Asked by Baroness Finlay of Llandaff

To ask Her Majesty’s Government what impact the Supreme Court’s March 2014 judgment on Deprivation of Liberty Safeguards has had on healthcare.

Baroness Finlay of Llandaff (CB): My Lords, I am most grateful to the House for allowing this debate to occur at the end of the day today. It relates to the so-called Cheshire West judgment of 19 March 2014 and its impact on healthcare. The background to that judgment was most eloquently laid out by my noble and learned friend Lord Brown of Eaton-under-Heywood in the debate on the Mental Capacity Act 2005 that we had last week on 10 March.

In the judgment itself, the noble and learned Baroness, Lady Hale, said:

“This case is about the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised”.

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I will cover briefly why it was felt necessary to clarify the issue. There appear to have been relatively few authorisations under the deprivation of liberty safeguards: in 2009-10 there were 7,157 and in 2012-13 there were 11,887. The noble and learned Baroness went on to say that,

“it would not be at all surprising if those arranging for the care of people with severe learning disabilities were reluctant to see those arrangements, made in what they think are the best interests of the people concerned, as also depriving them of their liberty”.

In response to the question of whether the deprivation of liberty is the same for all people, the noble and learned Baroness also said that,

“the whole point about human rights is their universal character”.

Indeed, the state of liberty—as defined by the noble and learned Lord, Lord Kerr of Tonaghmore, as,

“the state or condition of being free from external constraint”—

should therefore apply to everyone, irrespective of their disability of any sort. The Supreme Court laid down an acid test of circumstances that are likely to amount to a deprivation of liberty: namely, that the person is under continuous supervision and control, is not free to leave and lacks capacity to consent to these arrangements.

The important conclusions from this judgment are, first, that living arrangements amounting to a deprivation of liberty for a non-disabled person are a deprivation of liberty for a disabled person. In other words, there is parity. Secondly, if a person in a supported living arrangement in the community, care home or hospital setting is under continuous supervision and control, and is not free to leave, their liberty is deprived no matter the reason for the confinement. Thirdly, the person’s compliance or lack of objection is immaterial. Fourthly, periodic checks need to be in place to ensure that any legal justification for such confinement remains in place.

The judgment is clearly written, but it has had wide impact, which is what I want to address. The cost to councils arising from the changes as outlined in the judgment is estimated to have increased by more than £98 million—from the £35.2 million available in 2014-15. That is the estimate from the Local Government Association and the Association of Directors of Adult Social Services. There were 13,000 DoLS applications in 2013-14. Following the judgment, there have already been 86,500. Given this pressure, I ask the Minister: are the decisions made by assessors being scrutinised to ensure that hasty decisions are not made in the context of what is effectively a massive increase in demand?

There has been a reduction in the forms relating to DoLS, which have gone from 42 pages down to 13, and a streamlined process for applications was introduced by the Court of Protection to help cope with the increased demand. However, have families and advocates been asked for their views on the forms and how they are working for individuals?

As a result of the judgment, there has been a significant increase in the circumstances in which deprivation can be seen to take place, such as in hospice care, intensive care units and ambulance transfers, to give just some examples. In many circumstances, there is confusion for healthcare professionals about

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what amounts to a deprivation of liberty. It appears to be leading to a defensive and bureaucratic mindset, with a risk of stigmatising the care and those being cared for. As a recent paper on ethics and law pointed out:

“The acid test framed by the Supreme Court was not decided in the intensive care setting. However, the concept of a deprivation of liberty is not context-specific, so is capable in principle of applying in this setting. Due to their circumstances, most patients in intensive care units would seemingly fit the ‘acid test’ criteria, and it could therefore be construed that we are depriving them of their liberty. This is supported by a recent case (published 28 August 2014), in which a judge applied the Cheshire West acid test to a maternity unit in a general hospital”.

Can the Minister help to define the scope of the implications of the Cheshire West judgment and say whether it is seen to be appropriate to interpret the implications so widely?

There has been little guidance for families and healthcare staff about how to respond to the judgment. Perhaps I may quote from the experience of a hospice consultant, who has asked to remain nameless but said that:

“The organisation that manages the hospice has become very legalistic and is suggesting that we need to complete a DOLS application for all patients who become unconscious at the end of life—arguing that they have lost capacity and therefore are subject to a DOLS. This causes distress to families and delays the issue of death certificates as the death has to be referred to the Coroner and they hold a ‘desk inquest’ and issue the certificate, but maybe after 2-3 days delay”.

Other hospices have also expressed rising concerns, saying that they have felt impelled to apply for DoLS assessments for all dying people.

A very helpful and detailed letter, of 14 January this year, written to the DoLS leads in local authorities and the NHS by Niall Fry, the MCA DoLS policy lead at the Department of Health, addresses the situation of hospice patients. The letter said that,

“if a person receiving palliative care has the capacity to consent to the arrangements for their care and does consent, then there is no deprivation of liberty. Furthermore, if the person has capacity to consent to the arrangements for their care at the time of their admission or at a time before losing capacity, and does consent, the Department considers this consent to cover the period until death and that hence there is no deprivation of liberty”.

The letter also outlines that “continuous control and supervision” needs to be differentiated from a normal care situation, when you would of course expect there to be close monitoring of a patient and indeed, possibly close supervision, particularly of a very vulnerable person on a ventilator, for example.

The guidance letter is not clear on whether the consent referred to must be in writing, the level of particularity required, nor the extent to which advance statements of wishes, lasting power of attorney or advance refusals of treatment may be sufficient to indicate consent, particularly in relation to their timeliness. The guidance is from the Department of Health but, unlike the Supreme Court judgment, it does not, of course, have legal force, which results in further difficulties and confusion.

A practical issue is the inconsistent interpretation of what may constitute a deprivation of liberty, leading to variations in practice, confusion for hospices and

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other providers, and distress for patients, families and carers. Hospice stays are on average 13 days across England. As a process of applying for a standard authorisation often takes much longer than the average stay, this means that patients are often discharged or have died mid-process. This can distract staff away from care. The DoLS application may not be completed before the patient dies, and the process causes potential trauma for the family. It does not appear to increase care quality.

Hospices can use urgent authorisations at the time of applying normally, but an urgent authorisation lasts for a maximum of seven days. If that is granted but expires, there is a gap until a formal application is processed. Given our inability to predict life expectancy accurately, even at such a short time, the urgent authorisation frequently expires. As an application for DoLS is setting specific, for a patient transferred to a hospice in-patient unit with a DoLS authorisation in another setting, such as a hospital, the process has to start again. Although it should be started prior to transfer, this can now result in delayed transfers.

What is the position of a patient who requires a home-care package and whose discharge for that home-care support is delayed because the care package cannot be put in place? Are these delayed discharges depriving patients of their liberty if they want to go home and have any impairment of capacity and are not taking their own discharge? It seems that the Law Commission review is urgent. Given the earliest that draft legislation can be laid is summer 2017, I ask the Minister: is there a need for a test case to appeal to the Supreme Court against the West Cheshire judgment and its implications for hospices and other healthcare settings? If so, who should do this and how would it be funded? On what basis would a test case be brought?

7.13 pm

Lord Hope of Craighead (CB): My Lords, it is customary on these occasions to congratulate the first speaker on having obtained the debate to which we are privileged to listen. However, I think that it might also be right on this occasion to commiserate with the noble Baroness, Lady Finlay, partly because of the small number of noble Lords who have put down their names to speak but also because, in a way, much of the force of what was to be discussed was taken away by the debate to which she referred, which took place on 10 March, last week. There were 10 speeches on that occasion, including a speech by the noble Baroness herself, a speech by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and a speech by the noble Baroness, Lady Hollins, who I am glad to see in her place. The noble and learned Lord, Lord Brown, indicated to me earlier that he thought he would be unable to be present this evening, although I see that he is in his place just now, for a while at least.

As the debate today is directed to the decision of the Supreme Court in the Cheshire West case, I felt that I should step into the breach and put down my name, but I emphasise that I have no expertise in mental health law, nor do I have any knowledge of the operation in practice of applications for authorisation under Section 16 of the 2005 Act or the deprivation of

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liberty procedures under Schedule 1A for those detained in hospitals and care homes. Given those shortcomings, I felt it might be helpful if I said a few things about the judgment itself, about the test which it lays down and, as far as I can, on what is to be done about the case, although I am not sure that I can answer all the questions in the noble Baroness’s exam paper which she set before us a few moments ago.

The judgment itself is very interesting from the juridical point of view because it is one of those rare examples of the court going further than the Strasbourg court has done. There is a great deal of debate about the relationship between the United Kingdom courts and the Strasbourg court, and most of those debates concentrate on the other side of the coin, which is giving effect to or following Strasbourg, when people say that we should be more robust and not do so. This is a quite different thing. This is stretching the application of the convention rights beyond what Strasbourg has thought it right to do and has yet had to consider by cases that have come before it. There are some who point out that that gives enormous power to the judges to, in effect, create law. This is perhaps an example of that. I am not criticising the court for doing that, but it is an interesting example of a rather unusual situation.

It was a majority decision of four to three—a borderline decision, as the noble and learned Lord, Lord Brown, said, but a decision it was. I entirely agree with the noble and learned Lord that it is not for us to say how we would have resolved it. We take the decision as it stands. It is worth recording that the noble and learned Baroness, Lady Hale, who wrote the leading judgment for the majority, was without doubt the best qualified of all judges to express an opinion on the subject. She has made a study of mental health law over many years and is the author of a leading textbook on the subject. She is also pre-eminent among our judges in her understanding of human rights law. The issue could not have been in better hands so far as the law was concerned.

It is a feature of that case, however—it happens from time to time when one looks at decisions taken by judges—that they were not concerned with the practical implications of their judgment. They may give guidance, but it is not their responsibility to see how that would be done, what it would cost or what has to be done to give effect to it. In a sense, that is their luxury. Their task is to say what the law is. The matter is then passed to the Executive—the Government—to find the money and give effect to what the law requires. That is where we are now.

There are questions, of course, as to what the law as laid down in the judgment requires. The essential point, which the noble Baroness, Lady Finlay, mentioned, is that the situations do not enable one to distinguish between people of sound mind and those of unsound mind. Human rights are the same for everyone. The word “everyone” appears repeatedly throughout the European convention. There is a difference between a mere restriction and a deprivation of liberty. It is a question of fact and degree. Of course it depends on the situation of the person concerned. The situation where a person is detained on the authority of the

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state in a hospital or a care home really does not give rise to any problem, because it is obvious that that is a deprivation of liberty. In that case, the DoL procedures must be applied.

The difficult cases are those with which the judgment was especially concerned: people of unsound mind in benign situations with foster parents in a home setting, on the one hand, so that they can lead as normal lives as possible, or with live-in carers, on the other, for the same reason. Addressing that issue, the noble and learned Baroness, Lady Hale, said that the concept of physical liberty is the same for them as for anyone else, regardless of their mental or physical disability. The right at issue is a right not to be deprived of that physical liberty—whether that person is free or not free to come and go as he or she pleases. Where a person is by reason of an action taken by the state—I emphasise that we are talking about state interventions, not interventions by parents exercising their ordinary parental responsibilities—the question is whether that situation is one where they can properly be said to be deprived of their liberty. That is so however benign the environment they are in and irrespective of whether they actually want to break loose and leave the situation on their own initiative. As the noble and learned Baroness, Lady Hale, put it in paragraph 56,

“it is the constraints that matter”.

However, the question is still left in the air as to how far this judgment goes. The noble and learned Lord, Lord Brown, addressed that issue in his speech last Tuesday. He said:

“It can fairly be said that the facts of those three cases represent about the furthermost examples of what the English courts …would conclude involves a deprivation of liberty”.—[Official Report, 10/3/15; col. 632.]”.

When one considers the nature of the places where those concerned were living, the noble and learned Lord must be right about that. Indeed, he also said that the borderline between restriction and deprivation of liberty is quite a narrow one. Those cases lay at the extreme limits.

The facts will vary from case to case, and one has to face the situation that the facts of those two cases must not be taken as definitive. Indeed, when the noble and learned Baroness, Lady Hale, was writing about this she said that we should err on the side of caution in dealing with the situation of people of extreme vulnerability. It is quite striking that she rejected an invitation to lay down an acid test for the deprivation of liberty. What she did instead was to set out certain things that are not relevant. For example, the person’s lack of objection is not relevant. The normality of the situation in which they are placed is not relevant. The reason or purpose behind a particular placement is not relevant. But what we do not find in the judgment is an answer to the kind of questions that, understandably, the noble Baroness is raising as to where exactly the line should be drawn.

The noble and learned Lord, Lord Brown, did venture on this point, too, but I am not sure that I agree entirely with what he said. He made a distinction between long-term placements of unsound mind and situations in which people are placed that are the result of a terminal or emergency situation. I can

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agree with him about terminal situations and emergency situations, because the timeframe is necessarily short, but I am a little uneasy about the phrase “long-term placements”, which was a point addressed by the noble Baroness. One could have situations that are meant to be temporary but involve the deprivation of liberty. They may be quite short term—a matter of two or three weeks or a month or so. In those cases, it looks as though, if there is a deprivation of liberty, the procedures must be applied. That illustrates the problem pointed to by the noble and learned Baroness, Lady Hale, about trying to draw any kind of precise line to be able to say when a situation is caught and when it is not. Each case must be taken on its own facts.

The question then is what needs to be done. I recognise that there are limits to what the Minister can say in the dying days of this Parliament. He cannot commit very many people to what can be done in the next two or three weeks. But one or two points may be made and he may be in a position to say something about them. The first is in relation to the Government’s reaction to the Select Committee report, which was mentioned by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. The paragraphs that are relevant in that response are paragraphs 7.26, 7.27 and 7.31. I will not read them out because they are available to everyone. But the Government get full marks for accepting that there is a pressing area that needs attention in the matter of community care arrangements of the kind involved in the case of Cheshire West. There is a pressing need here and a new legal framework needs to be designed in order to deal with that problem.

The difficulty I have is that the solution that has been adopted is to ask the Law Commission to undertake a review. It is recognised in paragraph 7.27 that this work will not complete for a few years. That seems to come close to kicking the matter into the long grass. I quite see that one wants some kind of informed approach to this issue but to look at dealing with it in terms of years rather than doing so in the relatively short term seems to be rather unfortunate. Surely something could be done more immediately. The point is raised in a paper on the impact of the judgment circulated by the Local Government Association, which draws attention to the increasing burden on councils which are already concerned about the affordability of the Care Act and calls on the Government to commit fully to funding all the burdens that rest upon them. The association also calls for a change in the law for people lacking capacity who need supervision and need to be in supported living environments. It wants action to be taken in the short term in various respects to enable the matter to be addressed.

The noble and learned Lord, Lord Brown, made the same point at the end of his speech last week and I endorse exactly what he said. Can the Minister explain a little more whether any thought is being given to addressing these problems as a matter of urgency rather than waiting for a matter of years for the Law Commission to report and no doubt further years after that for further legislation to be introduced?

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7.26 pm

Lord Howard of Lympne (Con): My Lords, I support the noble Baroness, Lady Finlay, and declare my interest as the chair of Hospice UK.

In view of the limited time available to me, I shall bite my tongue hard and resist the temptation to comment on what the noble and learned Lord, Lord Hope, referred to as the juridical aspect of the problem that faces us and concentrate on what I think will be of most help to my noble friend the Minister when he considers the need for urgent action to deal with the issues to which the decision of the Supreme Court, and the legislation which lay behind it, have given rise. I entirely agree with what the noble and learned Lord, Lord Hope, said in that regard. Therefore, I shall concentrate on specific examples of difficulties which hospices have faced.

The first concerns a hospice that instigated an urgent deprivation of liberty application and applied for a standard authorisation. The urgent deprivation of liberty was put in place for seven days. On the sixth day, the social services DoLS team had made no contact, so the hospice contacted it for advice on how to proceed as the urgent deprivation was due to expire the next day. The team asked the hospice to implement an extension to the urgent deprivation for a further seven days, as they had a backlog of referrals and no best interest assessors available, which the hospice did. Six days later, still nobody had been to assess the patient, so the hospice contacted the DoLS team again and asked what it should do. The team confirmed they had a backlog of applications and would not be able to assess the patient prior to the urgent deprivation of liberty expiring, and explained that there was nothing else the hospice could do as it had done all that it was legally required to do. The hospice raised its concerns that this meant that it would be depriving a patient of their liberty without the appropriate authorisation and confirmed that it would be contacting the Care Quality Commission. The DoLS team agreed that the situation was not acceptable, but confirmed that there was still nothing it could do.

I give another example from another hospice which had a patient transferred from its local hospital who had metastatic cancer and had suffered a stroke. He was not responding or understanding when he was admitted, but did not appear to be in the last days of life. An urgent application and standard application for DoLS were made. An assessor came to see him from the local authority who seemed at a complete loss as to why she was there and what she was supposed to do. The patient died three days later.

A hospice has provided a series of examples of the kind of situations with which it is confronted. The first example is:

“An actively dying hospice in-patient placed on a Palliative Care Plan, who has lost capacity/consciousness, and is receiving sedative medication to manage symptoms of their terminal phase”.

The second example is:

“The delirious hospice in-patient who is receiving medication or support to manage this state”.

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The third is:

“The wandering cognitively impaired patient/ at risk of falls (in an in-patient or day care setting) who has a nurse call system that activates when the patients starts wandering in order to alert nursing staff to return the patient to their area of care”.

These are all very specific examples of the problems that hospices now face on a daily basis as a result of the situation that has arisen.

Reference was made in an earlier debate in your Lordships’ House today to the unintended consequences of legislation. I submit that it is impossible to come across a better or, indeed, worse example of the unintended consequences of legislation than the situation in which we find ourselves. I suspect that it can ultimately be resolved only by fresh legislation; but at least, when one contemplates the prospects for such legislation, it ought to be free of party political difference, so there ought to be not a great deal of difficulty in building a consensus. I am not sure that it is necessary—the noble and learned Lord, Lord Hope, suggested that it is not necessary—to await the Law Commission’s recommendations. Perhaps it can be asked to expedite its work, but the problem is urgent and I urge my noble friend the Minister to take urgent action to resolve it.

7.31 pm

Baroness Hollins (CB): My Lords, I should like to reflect on how we have reached this point by looking briefly at two cases. First is the 1997 Bournewood case, which is why we have the deprivation of liberty safeguards in the first place.

Henry—we do not know his real name—is a man with severe autism and learning disability. He cannot communicate verbally but can make his needs known to those who know him. As with most people with autism, structure, routine and predictability are very important to him. However, on the day in question, he did not have his usual driver for his day centre visit. The driver went a different route, picked up different people, and Henry became increasingly upset. By the time he reached the day centre, he was frustrated and angry, was harming himself and hitting out at other people. The day centre staff therefore rang for specialist advice and were advised to admit him to hospital immediately, where he was detained for his own safety. When his foster parents visited him, he became upset and wanted to go home with them. However, this increased his harmful behaviour and the doctor asked them not to visit any more, saying that it was in his best interests not to see them. They started a legal campaign and, after five months, Henry went home. They then took the case to court, arguing that he had been illegally detained. Eventually, after seven years and hundreds of thousands of pounds in costs, the European Court of Human Rights ruled that Henry had been illegally deprived of his liberty, in contravention of Article 5 of the European Convention on Human Rights—and so the Mental Capacity Act and DoLS were born.

Currently, if a person without capacity does not meet the criteria to be admitted to hospital under the provisions of the Mental Health Act, an application for a DoLS authorisation may be made. In fact, Henry’s psychiatrist said that she could have

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detained him under the Mental Health Act and, paradoxically, he would not therefore have been eligible for DoLS.

Let us compare Henry’s story to the case of Stephen Neary. He, too, has autism and a learning disability, although he is able to communicate verbally. He lived at home with his father and had constant adult supervision. However, his father became unwell and exhausted and, in 2009, agreed to Stephen being admitted temporarily for respite. When he went to fetch his son he was prevented from doing so. The professionals argued that they had concerns about Stephen’s weight and behaviour, and he was detained under DoLS. For a year Mr Neary fought a legal battle to get his son home. Neither he nor his son were eligible for legal aid but fortunately Mr Neary was able to do this. There was no automatic tribunal, no means of legal challenge other than through the High Court and ultimately damages were paid because it was found that the council had not acted lawfully in depriving Stephen Neary of his liberty.

The post-legislative scrutiny committee of which I was a member found the Mental Capacity Act unfit for purpose with respect to DoLS. The code of practice has not been updated since it was first published and does not take into account significant changes resulting from case law, including the Supreme Court’s March 2014 judgment. Since the Cheshire West case many more people are being referred and the system is completely clogged up. In one authority 2,000 cases are awaiting standard authorisations—a year on from the judgment and no safeguards in place. The legal framework is complex, expensive and confusing for clinicians, who may fear that they are not up to date with the latest case law. The BMA told the Select Committee that its concern with the DoLS is its complexity and bureaucracy.

Does the Minister agree that simplifying and streamlining the safeguarding arrangements is a matter of urgency? It must, however, be considered alongside the service redesign taking place in the care of people with learning disability and challenging behaviour. The Government are trying to increase the speed of discharges but because of inadequate community support these delayed authorisations are quite literally causing paralysis in the system. I agree with the suggestion from my noble friend Lady Finlay that perhaps further case law is needed to clarify the situation.

7.36 pm

Lord Bradley (Lab): My Lords, I congratulate the noble Baroness, Lady Finlay of Llandaff, on securing this short debate and on her excellent speech on the issues of deprivation of liberty safeguards and healthcare, particularly in respect of hospices and homecare support. I also congratulate the noble and learned Lord, Lord Hope, the noble Baroness, Lady Hollins, and the noble Lord, Lord Howard, on their very wise and detailed contributions, particularly around hospice care. This debate effectively complements the debate last week on the excellent Select Committee report on the Mental Capacity Act 2005, when the noble Baroness, Lady Finlay, rightly stated that the laudable principles of the Act have clearly not been realised as was hoped.

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The House of Lords Select Committee made nine recommendations that related to deprivation of liberty and the Government responded to these in June 2014. I will return to one or two of these shortly but I want to concentrate in the limited time available on some of the consequences of the Supreme Court judgment. In March 2014 the UK Supreme Court handed down two judgments, which are commonly known as the Cheshire West judgment. As the noble and learned Lord, Lord Hope, has eloquently explained, these judgments outlined the test that must be used in the determination of whether arrangements made for the care and treatment of an individual lacking capacity to consent amount to a deprivation of liberty. As the British Medical Association commented, in its judgment the court said that:

“The benign purposes of care arrangements are not relevant to the question of whether a person was deprived of liberty … What would be a deprivation of liberty for a non-disabled person is also a deprivation for a disabled person … The key feature is whether the person concerned is under continuous supervision and is not free to leave … The person’s compliance or lack of objection, the purpose of the placement or its relative normality are immaterial”.

As a consequence of this judgment there has been a significant increase in the number of DoLS applications received by local councils, as we have already heard. Government figures show that there were 13,000 DoLS applications in 2013-14. Following the judgment, there have been 86,500 applications so far this year, according to the Association of Directors of Social Services. The number of applications has increased every quarter. Further, as ADASS has stated, as well as significant cost implications, this places great strain on the ability of staff and local councils to meet their statutory duties. Most importantly, it makes it harder to meet the needs and protect the best interests of the most vulnerable people in society in a timely way.

I shall illustrate this further. In my council, Manchester City Council, there has been a fivefold increase in DoLS applications since the Cheshire West judgment. In 2013-14, there were 236 applications; this year to date, there have been 1,147 applications. There is also a backlog of 200 cases which the council is working through, having recruited additional assessment capacity. The cost of a straightforward application is £900 in court costs, and court costs will be significantly higher for disputed applications. Therefore, Manchester is experiencing significant cost pressures in court fees and assessment costs to meet the needs of the most vulnerable people and their families. ADASS has suggested that each case needs 10 hours of assessment time. Manchester agrees with that. For Manchester, it equates to 10 full-time equivalent practitioners to deal with the additional assessment requirements following the Supreme Court judgment. To aggregate this, and against a backdrop of considerable strain on resources in adult social care, it is estimated that the cost to councils is in the region of £98 million over and above the current funding for DoLS activity in 2014-15. Furthermore, the BMA has stated that the authorisation for DoLS is cumbersome, bureaucratic and time-consuming and, crucially, will inevitably divert resources from front-line care.

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As a consequence, the Local Government Association and ADASS are calling on the Government to fully fund the cost of the changes to DoLS and to ensure that the healthcare of vulnerable people is not affected. I spoke at a Mencap conference in Cardiff today on learning disabilities and access to justice. It expressed concern that the costs imposed by DoLS might deflect from the direct care of people with such disabilities. Will the Minister explain the Government’s position on the funding arrangements?

I return to the Select Committee report and the Government’s response. The House of Lords Select Committee rightly asserted:

“Better understanding of the purpose behind the safeguards is urgently required”.

Part of the Government’s response was to request the health and social care sector to establish a multiagency task force to determine the impact of the Supreme Court judgment on local authorities and to identify potential solutions, such as pooled training and sharing good practice. This is clearly welcome but, as ADASS pointed out, even with extensive sector-led activity, local authorities cannot hope fully to mitigate the impact of the judgment without additional resources. Further, as we have heard, the BMA is calling for an urgent review of DoLS with a view to simplifying and streamlining the system. I would welcome the Minister’s response to that call.

Another key point is that considerable uncertainty remains in a wide range of circumstances about whether care or treatment will amount to a DoLS. This uncertainty could lead to confusion for health professionals and a defensive and bureaucratic mindset, as the BMA pointed out. This is partly through the failure to deliver effective training in this area, as the noble Baroness, Lady Finlay, pointed out in last week’s debate, and can lead to staff being understandably risk-averse in the assessment process.

Investment in training, in all aspects of mental health and learning disability legislation and services is essential, particularly in relation to the Mental Capacity Act and the related DoLS. Many organisations support that view, including Mencap, which clearly recognises the specific training needs of staff working with people with learning disabilities. My views on the crucial importance of training, for what they are worth, have been shaped by my involvement in the national rollout of liaison and diversion services for people with mental health and learning disabilities who come into contact with the criminal justice system. Those multiagency programmes rely on training not only within individual organisations but, more importantly, across organisations to ensure that there is a common understanding of the needs of the individual, breaking down organisational and cultural barriers.

While it is welcome that the Government have recognised some of the issues that have been identified as a result of the Cheshire West judgment, faster action and more resources need to be considered properly to respond to the Select Committee’s nine recommendations on goals and to ensure that the health and social care needs of some of the most vulnerable people are properly met. I hope that the Government therefore respond in a more speedy and timely manner on those issues.

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7.46 pm

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, I am very grateful to the noble Baroness, Lady Finlay, for raising this important issue for debate and for her authoritative speech, alongside those of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Bradley. I also very much appreciated the contributions from the noble Baroness, Lady Hollins, and my noble friend Lord Howard of Lympne.

Since the Supreme Court judgment in the case of Cheshire West on 19 March 2014, social care and NHS providers have been working hard to understand the implications for their service users and to plan a response that prioritises the well-being of all the individuals for whom they care. I pay tribute to their efforts and the efforts of the local authority teams responsible for assessing and authorising any deprivation of liberty.

The phrase “deprivation of liberty” arouses a lot of emotion, some of it unhelpful. It can feel intimidating, perhaps even stigmatising. The phrase derives from the European Convention on Human Rights, which stipulates that, when an individual is subject to a deprivation of liberty, they must be provided with legal safeguards and a legal route of appeal. In England, for those who lack capacity in hospitals and care homes, this is provided by the system known as the deprivation of liberty safeguards, or DoLS. Despite the negative connotations of the phrase, a deprivation of liberty can be entirely appropriate, if it is in the best interests of the individual concerned and an appropriate and proportionate approach to providing necessary care and treatment. An example would be a dementia sufferer who requires 24-hour care and who would be prevented from leaving a care home because he does not know where he is going, does not know how to safely cross a busy road and who has a history of endangering himself when he does leave. This could be an entirely appropriate deprivation of liberty.

The noble Baroness referred to the Supreme Court judgment, as did noble Lords. The judgment clarified the test for a deprivation of liberty. There are three parts: first, that the individual lacks capacity to consent to the arrangements for their care; secondly, that they are under continuous control and supervision; and, thirdly, that they are not free to leave. Many have welcomed the Supreme Court judgment for emphasising the universal nature of human rights. As for the scope of the judgment, about which the noble Baroness asked me, I hope that she will excuse me for not attempting to interpret case law here and now. However, she may be interested to know that, by the end of this month, the Law Society, commissioned by the department, will publish extensive guidance on the matter.

How we regard those who lack capacity is a cultural challenge. A Select Committee of this House recognised that the health and care system, and society at large, have a way to go to implement the Mental Capacity Act, of which DoLS are part. It noted the tendency of the health system to act in a paternalistic fashion—that of “doctor knows best”. Of course, all health and care

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professionals want what is best for the service user, but this does not mean that health and care settings can be exempted from the legal safeguards that all of us are entitled to and which ensure that our human rights are protected.

Let us be clear on another point as well: DoLS do not cause a deprivation of liberty. The deprivation of liberty results from the nature of the care and treatment package. As I indicated, the restrictions on freedom of movement and choice that constitute a “deprivation of liberty” may be entirely justifiable and necessary. DoLS exist to ensure that this is the case—in other words, to assess the individual’s situation and ensure that the deprivation of liberty really is necessary—and, if not, to instigate the steps to ensure the person is provided with more freedom. Therefore, DoLS, despite the sometimes negative attention, are positive things that promote the equal human rights of the individual.

The key question, then, is this: are the current deprivation of liberty safeguards the best they can be? Do they allow the individual’s human rights to be protected, but, at the same time, can they be implemented at a population level so that all individuals have their rights protected? As has been mentioned, following the Supreme Court judgment there has been a great surge in DoLS applications: 90,000 in the nine months following the judgment. This represents a tenfold increase. Many local authorities are struggling to process these; there is a significant backlog of applications. It seems clear to the Government that the current DoLS system was designed when deprivation of liberty was seen to be a fairly rare occurrence. The law—perhaps even society—has now moved on.

The Government believe that the DoLS system may not be the best way to provide safeguards at a population level. That is why we have secured the services of the Law Commission to fundamentally review the legislation and propose a new system that covers care homes, hospitals and community settings. This summer, the Law Commission will produce a detailed public consultation paper on future options.

Meanwhile, the Government have been taking steps to assist providers. We have instigated more frequent data collection to monitor better the impact of the Supreme Court judgment. We have issued guidance notes to reassure and to inform. We have significantly cut the number of standard forms associated with making a DoLS application from 32 to 13. We have commissioned extensive guidance as to what now constitutes a deprivation of liberty, which will be published within the next two weeks.

The noble and learned Lord, Lord Hope, and the noble Lord, Lord Bradley, referred at some length to the backlog of applications. We are aware of this. ADASS has produced some helpful guidance that assists local authorities to prioritise the applications for those most at risk. The reduction in the number of forms will also reduce the administrative burden, allowing applications to be processed more quickly. However, the backlog is concerning as it indicates that some people may not be benefiting from the safeguards. We are working more closely with local government and are closely monitoring the situation.

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There is a positive element here: because of a clarification by the Supreme Court, tens of thousands of vulnerable individuals are having their care scrutinised. There is work to be done in responding to the judgment, but as I have said, we will work closely with local authorities to get the safeguards provided to as many as possible. I can tell the noble Lord, Lord Bradley, and the noble Baroness, Lady Finlay, that the Department of Health has provided local authorities with £35 million in 2014-15 for their MCA/DoLS responsibilities.

The Government, together with the Care Quality Commission and the Association of Directors of Adult Social Services, have stressed over the last year the importance of a proportionate response to the Supreme Court judgment that puts the individual’s best interests first. DoLS will become a paperwork exercise only if it is applied as a blanket measure—for example, assessing all individuals in a ward together and not considering each patient’s individual circumstances. If providers can demonstrate that they have an understanding of the Supreme Court judgment, that they have policies and procedures in place to ensure that restrictive care practices are minimised, and that they are doing their very best to make DoLS applications where appropriate, then we do not expect that they will be unfairly penalised.

The noble Baroness, Lady Finlay, asks whether decisions are properly scrutinised and whether advocates or relatives are asked to feed in to those decisions. Government officials are in regular contact with those working on the front line. So far, it seems that assessors are keeping to the ethos of the Mental Capacity Act—namely, they are not treating this simply as paperwork. The DoLS forms were subject to consultation with a range of practitioners. We are still taking on board comments on the forms and we welcome suggestions for improvement.

The noble Baroness, together with the noble Baroness, Lady Hollins, referred to the difficulty posed by delayed discharges. The Government have recently done a lot of work to speed up appropriate discharges from hospital settings. It is hard to be conclusive about the impact of DoLS here, but it is reasonable to assert that in some cases a DoLS application could help discharges, identifying, as it may, a least restrictive option outside of hospital.

The noble Baroness, Lady Finlay, asked about consent—whether it had to be in writing and the timeliness of the consent. It is important that any wishes that the person made known when they had capacity are considered when decisions are made at a later date when they may lack capacity. This would apply, however those wishes were expressed. However, having something in writing means that the wishes are clear and not second or third hand, and therefore that form of consent may hold more weight. In terms of timeliness, any medical professional should always give consideration to whether a statement of wishes or an advance decision reflects the person’s current wishes or feelings. As these may have changed over time and/or in the light of a change of circumstances, it is important that family members and carers are consulted on the current validity of such decisions.

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The noble and learned Lord, Lord Hope, referred to long-term placements as compared to restrictions imposed on a temporary basis. It is an important principle that any deprivation of liberty authorisation must be for the shortest time needed to achieve the desired outcome. Currently, we have essentially a one-size-fits-all model for DoLS. However, the Law Commission will be considering whether a more flexible model might be better.

The noble and learned Lord, Lord Hope, and my noble friend Lord Howard questioned whether there might be changes to the law that we could make more quickly to help alleviate the pressure on the system pending the Law Commission report. I know that some partners have called for rapid legal changes. One example is increasing the time for which hospitals can authorise a deprivation of liberty—that is, instead of the current seven days, perhaps 14 or 21 days. Another suggestion that I have heard is to change the requirement for local authorities to process applications within 21 days by extending that period. Although I sympathise with local authorities and hospitals because of the pressures they are under, the counterargument that I know many others make is that, with something as important as fundamental human rights, government should not weaken the safeguards. My own belief is that the changes proposed should be considered in the round with the wider changes that the Law Commission is currently considering so that we do not inadvertently cause negative or unhelpful side-effects.

The noble Baroness, Lady Finlay, questioned whether there should be a test case—and, if so, who should do it and where the funding should come from. In terms of a test case to take to the Supreme Court, the Government are not yet minded to force this issue. The majority of partners that officials have spoken to support the Cheshire West judgment. We understand that the implications are many and that they vary by settings. As such, the Government have provided, where possible, guidance on specific settings, such as those that the noble Baroness, Lady Finlay, referred to relating to hospices. That guidance has, I think, been very well received.

I understand the noble Baroness’s concern about the implications of the judgment for different settings, particularly those where the fewest number of DoLS applications have traditionally come from. She has, as we all acknowledge, considerable expertise in this area and I would be grateful and pleased to facilitate a meeting with the officials leading this work if she would find that useful—and, indeed, with the Law Commission team looking at future legislation. It is vital to have the support of medical professionals for any future system to replace the current DoLS system.

I have not addressed all the points made by noble Lords this evening. If I am able to add to the comments that I have made, I would be happy to do so in writing. Suffice it to say, for now, that the Supreme Court judgment has challenged us to think about how we regard the most vulnerable members of society. The ultimate test is for those of us fortunate to have full capacity to put ourselves in the place of those who do not. If we were prevented from

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leaving a hospital ward—if we could exercise no choice over our day-to-day activities, over whom we met and when we met them—I wonder how we would feel. I suspect that we would expect at the very least to have a legal route of redress. Those who lack capacity deserve

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and are entitled to exactly the same. The challenge now is to deliver these rights in a busy and pressurised health and care system upon which demand continues to rise.

House adjourned at 8.03 pm.