moved Amendment No. 171:

After our debate yesterday, I tried to work through some of these provisions looking at worst-case scenarios. One of the scenarios that came to mind was terrorism by releasing smallpox, the Ebola virus or some other contaminant in, for example, a building such as this—heaven forbid—and I wondered how we would cope with public health in that situation.

Isolation involves the clinical management of a person who is already infected, whereas quarantine is used before you know whether the person has the infection, although he is at risk of getting it, and he is therefore in the phase where he has been exposed but it is not known whether he will develop the condition.

It struck me that the term “other suitable establishment” might have to be flexible, depending on the place and the occasion. I completely understand the need for clarity in the definition, but I have a great deal of sympathy with the Government in their attempt to draft legislation to apply in the future to unknown circumstances with unknown quanta of risk, where something might have rapid effects.

In framing scenarios in my mind, I was drawing on my experience of the release of some smallpox virus some years ago, when I happened to be a junior doctor working in the vicinity and one of the people had been transported by ambulance on my watch, which meant that we all had to be vaccinated. It was interesting even then, without any awareness of terrorism and so on. I see that the situation could rapidly become very complex, with the need to hold people in an area and not let them freely circulate or be transported elsewhere. One would have to make the best of what was available.

With those caveats, I express a degree of sympathy towards the Government, although I think that it is important for the Minister to state clearly on the record the intentions behind this provision.

Amendment No. 171 would remove the power for a justice of the peace to detain an individual in a suitable establishment that was not a hospital. However, the purpose of the provision as drafted is to give the justice of the peace the possibility of making the measure more responsive to an individual’s needs and, as the noble Baroness, Lady Finlay, said, to give flexibility. Most important, being able to choose an alternative location to a hospital could help to reduce the impact of the measure on an individual’s human rights. For example, if the justice deemed it “suitable”, an individual could be detained in their own home. Support systems would need to be put in place, but this could be infinitely preferable to their being in a hospital. More likely, detention could be in a nursing home or hospice. Detention does not always need to be high-tech. To remove this provision would remove such options.

I know that this amendment may be the result of concerns about the provision and I should like to address the valid concern expressed by the noble Earl about people being put in prison. I want to reassure noble Lords on the record that I do not think that it could be claimed that a prison would be a “suitable establishment” in which to place an infected or contaminated individual. Isolation requires a lot more than a set of bars; it may not even require a set of bars. I remind noble Lords that even prisoners are removed to hospital when they are seriously ill, because prisons and prison cells are not set up to provide intensive medical care. The purpose of the provision is to provide positive flexibility for people who may need to have a detention order made against them. I think that we would all welcome that flexibility.

Amendment No. 172 would remove the power in Section 45G(2)(d) for a justice of the peace to isolate an individual. This may sound extreme, but it is a crucial public health protection measure and one of the most effective ways of ensuring that a disease does not spread, as the noble Baroness, Lady Finlay, described much more eloquently that I can. I am sure that noble Lords will recognise that, if an individual has an infectious disease, it may be important to limit their exposure to other people who have not caught the disease. In the most serious cases, isolation requires a negative pressure room, barrier nursing and other special measures.

Allowing justices of the peace to order isolation, where this is necessary, builds on the powers that they already have under current legislation to detain an individual in hospital. The noble Baroness more than adequately described the difference between isolation and quarantine, so I will not even attempt to do so. Both isolation and quarantine were essential control measures used by Hong Kong and Canada to stem the spread of SARS in 2002-03. I hope that the noble Earl and others will agree that this is a sensible public health protection measure and that we cannot sweep away the power to order such interventions. I hope that, with that, I have satisfied those who expressed justifiable concerns.

I apologise for not being here yesterday; I was giving a lecture in Oswestry, which is a long way away.

Other possible explanations make this clause necessary and helpful. If a child in a closed community such as an army barracks or a boarding school develops a serious infectious illness, they may be isolated in a sick bay with full barrier nursing to prevent the infection from spreading. Children who may have been in contact with that child but who show no sign of infection are then put in quarantine in case they subsequently develop the infection; they would be prevented from going out into the community because of the danger that they might present. As the noble Baroness said, there is a significant difference between isolation and quarantine, which is why the clause is needed.

I thank the noble Lord, Lord Walton of Detchant. He is, as ever, absolutely correct and exactly describes some of the circumstances.

The combination of the noble Lord, Lord Walton, and the noble Baroness, Lady Finlay, has proved to be an excellent investment for us. A lot of light has been usefully thrown on this whole area.

I recognise that these provisions need to be flexible and all-embracing. As we said yesterday, it is difficult to legislate for hazards that are as yet unknown. However, the price to be paid is wording in the Bill that is open and rather vague. That leaves us as legislators feeling a trifle uneasy, for all that I know that Ministers and public authorities would have the best of intentions in the event of some catastrophe or outbreak of infection.

The Minister’s reassurance on prisons was extremely helpful and I am grateful to her for it. She gave us a valuable assurance yesterday about the Government’s intention to put in place a mechanism to monitor the way in which the orders are used. I therefore feel considerably more at ease about these provisions than would otherwise have been the case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 172 to 175 not moved.]

moved Amendment No. 175A:

Back to Wales.

Yes. I just find it extraordinary. There is a serious point here. It is a rather clumsy and all-embracing word—or maybe we want it to be all-embracing, but it is so unspecific. It makes the Bill look a bit silly; there is going to be a lot of fun with “things” in a lot of town halls and offices up and down the country. Maybe that is a good reason, too, because it will make sure that they use the Bill and carry out its provisions.

The Local Government Association briefings and documents always relate to articles, premises or persons. They actually specify. When I was a medical student—and I know that the noble Lord, Lord Walton, learnt this word, too—infected articles and premises were called “fomites”. It was a joke word when I was a medical student. We used to go around talking about fomites in a dark way, because it was a strange word that we had not come across. However, in Wikipedia, which is a modern form of dictionary, a fomite is,

“any inanimate object or substance capable of carrying infectious organisms (such as germs or parasites)”—

it could also be contaminated by radiation and so on—

“and hence transferring them from one individual to another. A fomite can be anything such as a cloth or mop heads”.

Walls, floors, tables—all those things as well as articles of clothing are fomites. It is a well recognised word. It comes from the Latin for touchwood or tinder, which is quite appropriate: if you touch it, you are set on fire and get the infection.

“Fomite” is a useful word to look at and, even if we do not use it in the Bill, we should think carefully about the word “thing”. On page 79 of the Bill, we are told that “thing” includes,

“human tissue … a dead body … animals, and … plant material”.

I appreciate that fomites are not included in that, but if you do not like fomite you could use “article” and “premises”. But I do not really want my dead body, even if I die of SARS, to be referred to as a thing. I want it to be referred to as a dead body, or a corpse. I am not going to be a thing. There is an element of insult, as well.

We need to look at this new section and the word “thing” and, perhaps, elaborate a little. It is a simplistic solution just to call it a thing; why not say what we mean? Why not say fomites and infected and contaminated human, animal, plant tissue or bodies? Why not spell out to people what we actually mean? I suspect that the Minister is going to give me a real pasting on this and tell me why “thing” must still be used, but this is a serious attempt to find a better way in which to describe something that is a very serious issue indeed. I do not want it to be ridiculed. I beg to move.

Amendments Nos. 177 and 180, which are grouped here, focus on the powers that the Bill confers on magistrates in relation to things and premises. These powers are new; they are not in the 1984 Act. Clearly any powers to impose restrictions on people are the most sensitive from the point of view of personal rights and liberties, but people’s property and belongings also give rise to considerable rights-related concerns. It is appropriate for us to think about those matters.

Under new Sections 45H and 45I, a magistrate may make an order to seize, isolate, quarantine, disinfect or decontaminate a thing and may close, detain, disinfect or decontaminate premises. I do not have a particular issue with those provisions. However, a magistrate may also order that a thing, building, conveyance or structure should be destroyed, as the noble Baroness said. These are extraordinarily far-reaching powers. We need to remind ourselves that a thing may include a dead body and that a building may include somebody’s house or business premises. We need to ask ourselves whether these are appropriate powers to be vested in a magistrate, as opposed to a judge in a higher court.

We could pick all sorts of examples as regards property and things, but let us take the case of a dead body that is considered to pose a risk to public health—not a significant or severe risk, let us remember, but simply a risk. To reduce the risk, perhaps not necessarily by much, a JP makes an order stating that the body must be incinerated as toxic waste. The insensitivity of that does not need spelling out. What ability is there for the next of kin of the deceased person to step in and say, “We think the action you have ordered is disproportionate and amounts to a gross affront to the feelings of the dead person’s family”? The answer, at least in some circumstances is, “None at all”. New Section 45M(3) states:

“If a justice of the peace considers it necessary to do so, the justice may make a Part 2A order without a person having been given such notice as is otherwise required to be given to that person under rules of court”.

So it would be possible for an order to be given for a dead body to be unceremoniously disposed of without the person’s family even knowing about it until after the event. I do not know what the rules of court will specify in this context. For all I know, they may contain no mention of a duty to notify the next of kin. It would be helpful if the Minister could throw some light on that.

Should the Minister say to me that there is a right of appeal in such circumstances, my response would be, “A right on the part of whom?”. New Section 45M allows for an order to be varied or revoked on the application of an affected person. At this stage we do not know whether the definition of “affected person” includes a close relative of a deceased individual. We will have to wait for regulations before that is spelt out. But even if a close relative were to be able to make an application for a variation or revocation of the order, it could well be too late by the time that he or she found out what had happened.

For infected or contaminated premises, the action of the court could be equally draconian. Let us imagine that someone has been contaminated by a toxic substance, or by a nuclear or biological agent, and has died from his exposure to that substance. His body is discovered at the home that he owned and lived in, which is also contaminated. Let us imagine that he lived there alone. A JP, if he considered it necessary, could make an order for that building to be destroyed without giving notice to anyone. Even if he gave notice before making the order, the family of the dead person might not be able to apply for a revocation of the order once it was made. In new Section 45M(7) we see that only the owner or occupier of the premises is counted as an affected person.

To order the destruction of a building is a serious matter, yet it appears that a magistrate, acting alone, could do so on the basis that it posed a risk—and no more than a risk—that it might infect or contaminate humans and that it was necessary to make the order in order to remove or simply to reduce that risk. What appears to be missing is a requirement for proportionality of decision-making. I simply do not see it in the Bill.

I note that in new Section 45K(7) provision is made for compensation to be payable in connection with the taking of measures pursuant to a Part 2 order, but there is no guarantee that compensation would be mandatory in a given set of circumstances. We also need to remind ourselves that certain sorts of special restrictions or requirements may be made by regulations as opposed to by an order of the court. On the plus side, there will be a stipulation in regulations for any restriction or requirement to be proportionate to what is sought to be achieved, a stipulation that seems to be missing from magistrates’ powers.

However, with the regulations there appears to be no counterbalancing duty to give notice to affected persons. We could therefore have a situation in which regulations were made providing for local authorities to impose national restrictions or requirements that were contingent on a serious and imminent threat to public health. Can the Minister say whether I am correct that in those circumstances a local authority could order the destruction of a dead body, a group of dead bodies or a building without giving notice to anyone? I note that there is to be a right of appeal against a decision taken under the regulations that leads to the imposition of a special restriction or requirement but, once again, an application to appeal may be too late if the thing or building has already been destroyed. The Minister will appreciate that I am considerably exercised by these provisions. I question whether the balance between public protection and private rights is in all cases as it should be.

I, too, felt extremely uncomfortable reading the first draft of the Bill and, indeed, the present version when looking at the word “thing”. It struck me as an extraordinary inclusion in legislation. I referred to this in some detail in my Second Reading speech and subsequently received a lengthy letter from the noble Lord, Lord Darzi, in which he justified the use of this term and explained that all the alternatives that I had suggested would not do. I am still uncomfortable. I thought that the idea put forward by the noble Baroness, Lady Tonge, of using “fomite” was clever and useful.

New Section 45T(5) states that “thing” includes human tissue and other items, but that is not an exclusive definition. I considered carefully the possibility that human excreta, such as faeces or urine, could be very infective, but I believe that, under the Human Tissue Act, they would be considered to be human tissue, although that definition is somewhat dubious. Nevertheless, I would like clarification from the Minister about whether that is the case. What is not included in the list of,

“human tissue … a dead body, or human remains … animals, and … plant material”,

are human belongings and clothing, which can be capable of carrying serious infective agents. The question is whether the term “thing” would be taken to include human belongings—clothing and other items—that could pass on an infection. Having thought about it carefully, I would prefer “item” to “thing”, although I expect that the Minister will come up with some serious objections to that as well and will say that it would not cover all eventualities. I still feel that the Bill lacks clarity in the use of that rather unfortunate term. I shall be most interested to hear the Minister’s views.

The noble Earl raised the question of a person’s next of kin. Could the Bill not state that the next of kin must be notified when possible? Sometimes it might not be possible because people live alone or because of time and so on.

I apologise for being a little late. My committee was considering organ donation, so there are some comparisons in relation to the involvement of relatives. Our inquiry in Sub-Committee G of the European Union Committee shows the complexity of involving or not involving families. When it becomes a practicality, many of the questions identified so eloquently by the noble Earl will come to the fore. I hope that the Government will consider the question of, for example, who owns a dead body, as there is no legal definition. I am sure that relatives believe that they have some sort of ownership. I realise that all this is in the context of serious issues, but I am uneasy about a magistrate making a decision of such significance. My years in the Food Standards Agency taught me that there are some situations in which risk is paramount, although small. Who measures that risk and the balance of paramountcy against proportionality is crucial. It must be done by someone who understands the issues and can take such complex risk assessment decisions.

I shall come in on that point, although I am open to correction. I am glad that the noble Baroness raised the issue of the ownership of a dead body. When I was dean of a medical school, I used to receive what were called “body letters” regularly from people who wished to donate their bodies for dissection or medical research. I understand that in law the body of a deceased individual belongs to their executors. Will the Minister clarify that?

This is simply a request for the Minister to clarify the relationship between these provisions and the Human Tissue Act. Will she also either clarify the position or consider tabling an amendment on a way of distinguishing between a containable problem, however severe, and an overwhelming catastrophe? People may behave in quite different ways. In an overwhelming national catastrophe, even finding a magistrate might be difficult, whereas, in a containable event, one would want families to have some right of appeal. The noble Earl, Lord Howe, has eloquently introduced the word “proportionality” into the discussion. I wonder whether it should feature in an amendment to the Bill to distinguish between these two extremes and the spectrum that lies between them.

This is a discussion in two parts: it is about “things” and the important issue of destroying “things”. Under Section 45H, a justice of the peace can make an order in relation to a thing that is or is suspected of being infected or contaminated. Amendment No. 175A would replace the term “things” with the term “fomites”, which was a new one on me, so I spent a little time looking it up in various dictionaries—I never recommend Wikipedia as the most accurate place to look. I know that we do not see the term “thing” in Bills every day, but I can assure the noble Baroness, Lady Tonge, that parliamentary draftsmen are serious people. I questioned the word “thing”, too, and was assured that they had looked at every possible alternative but had decided that that was the only word, as no other term covered everything that needed to be covered. It is crucial that whatever term is used—

Surely any word can be made to include whatever you want it to include if you define that word. By using the word “things”, the Government have tried to steer away from defining precisely what is meant. That still has to be done. The word that has been used makes things more difficult, not easier.

I think that the noble Baroness is mistaken because in the Bill we have to legislate for things that we do not know about and for artefacts that we, as yet, cannot define. We do not want to find ourselves in the worst possible scenario, which is a justice of the peace finding himself powerless to act to protect public health because the term that we have used in the Bill is too specific. That is the point. I suppose that we could double the size of the Bill by trying to imagine what every single thing we would want to cover would be to satisfy the noble Baroness, but we still might miss out the one thing that that particular justice of the peace has to address himself to in particular circumstances.

The word “fomite” is a scientific term meaning an inanimate object capable of carrying infectious organisms. I am impressed by that suggestion, but I have been advised that the term is not commonly associated with things that have been contaminated by radioactive or chemical material. It would be questionable whether “fomite”—I think that noble Lords have already admitted this—could be extended to animals such as dogs, cats and chickens, which our Section 45H provisions cover. My worry is that using the term “fomite” could cause confusion about the extent of the powers and could make the law less accessible to the average person. In this case, we think that we are better off sticking to the everyday term “things”.

Does the Minister agree that the words “person” and “thing” could be used? That might help the noble Baroness, Lady Tonge.

The problem with adding words is that we still have the task of defining things. If between now and the end of the passage of Bill some noble Lord can come up with a word that does the job as well as we think “things” does, I ask them please to come and talk to us about it. I know that the noble Lord, Lord Walton, has already had a go at this, but noble Lords should feel free to have another go if they think that it might help. I am sure that the parliamentary draftsmen will be grateful if somebody can come up with something that they would find as acceptable.

Amendments Nos. 177 and 180 would remove the power of a justice of the peace to order the destruction of things or premises that may be infected or contaminated. The power to destroy things or premises is a necessary tool in public health protection because it is not always possible to disinfect or decontaminate articles and premises completely and effectively. It is not desirable to try to isolate permanently articles or premises that continue to pose a danger to public health. It is common practice, for example, for nurses to remove and incinerate the clothes of patients when they are contaminated with blood or could carry infection. It would not fit well with the new legislation to enable a justice of the peace to require an individual to undergo disinfection or decontamination but to remove from the justice of the peace the power to order the incineration of the individual’s contaminated clothing.

The noble Earl raised an important point about dead bodies. A dead body must pose a risk of significant harm to human health. The safety of the public is considered even in the Human Rights Act, which has certain qualifications for public health purposes. He has raised an important point and I am concerned that we should satisfy ourselves that all the safeguards are in place. Dead body provisions already exist in Section 45 of the 1984 Act. I will write to him to be clear on this sensitive issue. The Bill addresses it, because a justice of the peace can use the power to destroy a thing or a premise when it is necessary to remove or reduce the risk of infecting or contaminating humans. This provides an important safeguard that an individual’s right to his or her property is not interfered with unless there is a compelling need to do so to protect public health. However, I shall write in more detail to the noble Earl about this. I would like him to be completely satisfied that we are absolutely right about it. The noble Baroness, Lady Finlay, referred to the Human Tissue Act. I need to write to her about that, as she asked a legitimate question. We need to make sure that that, too, is covered.

The destruction of property would take place only in very exceptional cases. However, the JP can order it without giving notice. These powers are not completely new, because they build on powers in the 1984 Act—for example, the power to disinfect premises. Local authorities currently have these powers without judicial oversight. The Bill outlines judicial oversight and protection. I hope that the noble Baroness is satisfied that this is a sensible public health power and will agree to withdraw her amendment.

I thank the Minister for her reply. I am not particularly hung up about the word “fomite”; it was just something that came into my head at the time. However, I am still unhappy about “thing” and “things”. Attempting to encompass absolutely everything that might conceivably happen in the future in one single word is more or less impossible. It makes the Bill look slightly ridiculous. There will be as much argument about whether something is a “thing” as that applies in the Bill as there would be if we used the term “item”, suggested by the noble Lord, Lord Walton, and then added those things that we wanted also to be included. The Minister may say that we might want to include Martians in the future—I do not know whether the Government have them in mind—but it is not inconceivable that, in decades to come, something unknown may occur that we feel is dangerous to public health. It is difficult to put all of this into a single word and the Government are wrong to try to do so. It needs more qualification. For the time being, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 175B:

Under Clause 123, a justice of the peace has the power, following an application from a local authority, to make an order placing requirements or restrictions on a thing or premises that is, or is suspected of being, infected or contaminated. This group of amendments would create a power for a local authority officer to place requirements or restrictions on things or premises prior to any ruling by a justice of the peace. I will deal with the general principles and issues behind the amendments before making some specific points.

To begin with, we think it crucial that, when a local authority wishes to isolate a private dwelling or destroy a person’s possessions, even when that is in the interests of public health, there should be independent judicial oversight. The Joint Committee on Human Rights welcomed the Government’s decision to increase the involvement of justices of the peace in the decisions that local authorities take in relation to public health measures. The Local Government Association, with which officials have met and with which there have been many exchanges of letters—I put one of those letters around the Committee yesterday—has expressed concern that having to apply to a justice of the peace to obtain such an order could cause delay and will lead to additional bureaucracy. Although I understand why noble Lords have felt it necessary to raise these issues, I think that the concerns of the Local Government Association are unfounded.

The Bill extends these powers to contamination. The LGA has suggested that having to apply to a justice of the peace for an order would make it difficult to deal with a situation like the Alexander Litvinenko contamination incident, where 47 premises needed to be inspected. However, the provisions in the Bill are not intended to replace the existing powers of the local authority to enter and inspect premises under health and safety, food safety or environmental health legislation. It is important to put that on the record. They are intended to enhance those powers, especially where the existing legislation may be weak—for example, with regard to private dwellings, where in the Alexander Litvinenko case the local authority needed co-operation rather than powers. Local authorities will be able to choose the most appropriate legislation to support whatever action they judge it necessary to take.

In the Litvinenko case, the local authority had to rely on several different pieces of legislation, as well as voluntary co-operation, to enter and secure several premises. Nothing in the Health and Social Care Bill will prevent them from using those provisions again if that is the most appropriate way to deal with the situation. However, the Bill provides a coherent legislative basis for future cases, where gaps in existing legislation might be more problematic.

The LGA has said that Clause 123 would force the local authority at great expense to apply individually for 47 separate orders. That is incorrect. If the local authority chose to use the provisions in the Bill, new Section 45J would allow it to seek a single group order for all premises relating to a single contamination incident. I hope that that will lay to rest any concerns that local government may have about bureaucracy.

When we look at the detail of the provisions proposed in these amendments, it appears that a local authority would have the power to “close” a person’s home for up to three days without independent judicial oversight. Amendment No. 181A would make it a crime for the owner to enter their own home if the notice said that they should not. We cannot support that.

The amendments are similar to the powers set out in health and safety and food safety legislation. However, health and safety legislation and food safety legislation have a different basis from public health legislation. For example, standards for food safety are set out in legislation. When an inspector enters premises, it is to see whether the standards have been breached. In other words, the local authority is entering to see whether a crime has been committed. The owner knows what standards they should be upholding. It is therefore appropriate that the local authority can instantly serve a notice where those standards are not being met.

By contrast, it is not a crime under our public health legislation to have the misfortune to possess infected or contaminated things or premises. When a local authority suspects that there is a public health risk, it is not enforcing statutory standards but acting in the interests of public health. Any measures taken must be appropriately weighed against the rights of the individual. That is why we believe that it is appropriate that the decision to place restrictions or requirements on things and premises should be left with a justice of the peace.

The noble Baroness again referred to the Civil Contingencies Act 2004. Section 21(3) makes it clear that emergency regulations under the CCA should be made only where existing legislation cannot be relied on. I think that that will probably not satisfy the noble Baroness. Therefore, I undertake to write a longer letter that outlines and precisely answers her question. With that, I hope that the noble Baroness, Lady Tonge, will be able to withdraw the amendment.

I thank the Minister for that extremely helpful and clear response. I will welcome the letter on the Civil Contingencies Act because the matter keeps me awake at night. I really do not understand the connection. I thank the Minister for that. I hope that her clear response satisfies the Local Government Association. It has certainly satisfied me. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 175C to 192 not moved.]

moved Amendments Nos. 193 and 194:

had given notice of her intention to move Amendment No. 196:

moved Amendment No. 197:

moved Amendment No. 198:

Amendments Nos. 198 to 203 would replace the emergency procedures in the Bill with those contained in the Civil Contingencies Act. The noble Baroness gave a lucid exposition of why that was the case and what the Government’s response has been up to this point. I understand the intention. However, the Public Health (Control of Diseases) Act is not the Civil Contingencies Act. The types of provisions that could be made are very different and it would therefore be inappropriate to apply the civil contingency emergency regulations procedure.

For example, Amendment No. 203 would require the recall of Parliament to debate and approve regulations made using the urgent procedure. Recalling Parliament is not done lightly. Such an action is reserved for essential debates of great national importance. This might indeed be one but, on the other hand, it might not be. If there were an outbreak of a new infection abroad, similar to SARS, the World Health Organisation could recommend that certain surveillance systems were put in place—the noble Baroness referred to those. We would want to use the public health emergency powers to create regulations that would enable the surveillance regime to be implemented without delay. However, it would surely not be appropriate to recall Parliament to debate such a measure.

Amendment No. 199 also would allow regulations made using the urgent procedure to be amended by Parliament before they were approved. It is not normal parliamentary procedure to allow regulations to be amended. Regulations that may need to be set in place in times of a significant threat to public health may be technical and based on scientific understanding and advice from experts such as the World Health Organisation and the Health Protection Agency. It would not be appropriate to enable such regulations to be amended during their passage through both Houses on the basis of decisions that could be taken on a political rather than a scientific basis.

I understand the Committee’s concern that the measures taken under urgent regulations must be subject to safeguards. That is why we have ensured that safeguards built into the provisions will remain even when the regulations are made under the urgent procedures, such as only including powers that overlap with those of a justice of the peace when there is a serious and imminent threat to public health requiring a right of appeal to a magistrate. Therefore, I hope that the noble Baroness will feel able to withdraw her amendment.

I thank the Minister for that reply. Obviously, my noble friend Lady Stern will have to look at the response and discuss with her colleagues on the Joint Committee whether it meets their anxieties. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 199 to 203 not moved.]

Clause 123, as amended, agreed to.

Clause 124 agreed to.

Schedule 11 agreed to.

Clause 125 [Entitlement: Great Britain]:

In the absence of the noble Baroness, Lady Greengross, and the noble Lord, Lord Hodgson of Astley Abbotts, I hope that it will be in order for me to speak to Amendment No. 204, after which other noble Lords may wish to contribute to the debate.

Would the noble Baroness prefer to move Amendment No. 203ZA so that noble Lords can speak to it?

I think that the noble Earl, Lord Howe, is in a position to move Amendment No. 203ZA.

If the noble Earl would move the amendment, that would probably be the most sensible way to proceed. The noble Baroness could then speak to her amendment.

moved Amendment No. 203ZA:

Amendment No. 204 is grouped with the amendment so ably moved by the noble Earl, Lord Howe, and I am glad that it is, for reasons that will become obvious. When the Treasury starts to make health policy, I think that it is time for Parliament to start asking serious questions and there is absolutely no doubt that this is a piece of Treasury-inspired policy formulation.

My colleague in the other place, Sandra Gidley, described the health in pregnancy grant as a gimmick. She was right. Certainly it is evident that, however good the intention behind this policy, its implications have not been worked through as they should have been. In moving his amendment, the noble Earl, Lord Howe, raised some fundamental questions on this policy’s effect on maternal and neonatal health.

The amendment in my name may appear to be slightly flippant at first, but it is not. It relates to the residence of the mother. Back in the dim and distant past, I had the great pleasure of working on pensions and DWP matters and I understand that this is a standard piece of DWP legislation. I therefore seek clarification that this measure will extend to British citizens who are, for example, in the Armed Forces or partners of those serving in the forces. The Minister will probably reassure me on that. That being so, how will the Government monitor and oversee the system that they have set up and to which the noble Earl referred? How will we know whether people in other countries are going through the system of advice before payment is made? My questions are principally not about payments or the definition of payments but about how the measure will work as a health policy.

Perhaps I may intervene briefly. It seems as though the noble Lord, Lord Hodgson of Astley Abbotts, has tried to make some good come out of this money for the well-being of the child and mother. If this is to be pursued further, I would wish the concept of supportive parenting to be given in the advice. I endorse the requirement suggested by the noble Earl that this should be personalised advice and not just a leaflet or whatever. I also question, although the noble Lord is not here to answer this, the reference to immunodeficiency. However, given that some of us have been trying for a long time to get a standardised definition of supportive parenting, this amendment might be, if the noble Lord intends to bring it back, an opportunity to ensure that the next generation is slightly better off than the babies who are being born today.

I stand here somewhat inadequately to speak to Amendment No. 203ZA, as I thought that the noble Baroness, Lady Greengross, would be here. Some cogent arguments, which I fail to have with me, as I thought she would make them, have been suggested by a number of medical and nursing groups to say that the 20th week would be far more appropriate than the 24th week to make the grant in the interests of the health of the woman concerned. I support that and hope that I will be more prepared on Report.

The list in Amendment No. 203A is extremely important, but the items are not the sort of things that I would expect to see in the Bill. I would hope to see them clearly outlined in guidance or advice, which would give an even better opportunity to ensure that they were explained in some detail. I am sure that the Minister will say that it is inappropriate to put them in the Bill, but will she tell us about the guidance that they are likely to appear in? I had another point, which now eludes me. I am clearly not doing well today, so I apologise and will come back to the matter on Report.

The noble Baroness, Lady Howarth, has three or four groups of amendments during which she can see whether she can remember her point. I shall be happy to answer it if I can.

We come to the health in pregnancy grant. The Bill allows the Government to set out in regulations when the grant should be paid. We have published draft regulations to help the Committee in its deliberations, which set out that the grant will be paid from the 25th week of pregnancy. I have placed copies of the draft regulations in the House Library. I know that concerns have been expressed about the timing of the payment, as this amendment demonstrates. However, there are good reasons for the Government’s choice of 25 weeks and I thank the noble Earl for giving me the opportunity to explain them.

First, although we know that maternal health is important at all stages of pregnancy, if the grant is paid at this time not only will it supplement expenditure on all aspects of health and well-being but it will come at a time sufficiently into the pregnancy when it can help to alleviate some of the stress and anxiety that competing financial pressures can cause when women will be thinking about giving up work and possibly buying larger items. Similar payments are made in the later stages of pregnancy in other European countries, including France, Finland and Belgium. Secondly, linking in with existing antenatal care at the 25th and 28th weeks will also keep the burden on health professionals and pregnant women to a minimum. Finally, the Government already have a targeted, voucher-based scheme explicitly aimed at improving diet during pregnancy for women on lower incomes. The health in pregnancy grant complements the targeted support already provided by the Healthy Start scheme.

Amendment No. 203A would require that the advice given by health professionals to all expectant mothers must, as a minimum, include advice on a number of specific issues, such as nutrition. I agree wholeheartedly with the principle that all pregnant women should receive the advice that they need to have a healthy pregnancy and delivery. However, I hope that I am able to persuade the noble Earl that we should not seek to specify in the Bill what advice a health professional should provide and when he or she should provide it. The noble Baroness, Lady Howarth, was completely correct in anticipating that that would be my point.

The noble Baroness, Lady Finlay, made the good point that the advice should be tailored. The pregnant woman must have the advice before she can get the grant and that advice must be given by a health professional. We have said in draft regulations that the health professional should be a doctor, nurse or midwife. We are lucky in this country to have highly trained and highly skilled health professionals. It is their role, rather than that of the Government, to decide what kind of advice meets each individual woman’s needs. That advice should be based on the professional’s clinical expertise and the circumstances of the woman concerned.

There is already guidance available for health professionals. The National Institute for Health and Clinical Excellence has produced an advice booklet for health professionals called Routine Antenatal Care for Healthy Pregnant Women, which sets out recommendations on the issues that health professionals should cover in their advice to expectant mothers.

On Amendment No. 204, in common with child benefit and tax credits, Clause 125(3)(b) requires a woman to be in Great Britain when she makes a claim to the health in pregnancy grant. As with child benefit and tax credits, the Government intend to prescribe in regulations the circumstances where a woman is or is not to be regarded as being in Great Britain. We have published draft regulations to show how this provision will be used; as I have said, copies are available. These regulations will require a woman to be ordinarily resident in Great Britain and will provide for any circumstances where a woman’s temporary absences may be disregarded.

Removing this power would remove entitlement to the health in pregnancy grant from members of the Armed Forces and their partners who are serving abroad, for example. The amendment would also entirely remove the means of providing for a woman to be ordinarily resident in the UK in order to be entitled to the health in pregnancy grant. Without this requirement, any woman who satisfied the other conditions of entitlement but was not ordinarily resident in the UK could successfully claim, provided that she was in Great Britain when she made her claim. That is clearly not a sustainable policy. I hope that in the light of these arguments the noble Earl will feel able to withdraw his amendment.

I am sure that the Committee will be grateful to the Minister for her full reply, which the noble Baroness, Lady Greengross, will no doubt study. I am grateful to the Minister on behalf of my noble friend for her comments on Amendment No. 203A, which was intended as a probing amendment. I am sure that I speak for my noble friend in saying that a list of this kind would not be appropriate in an Act of Parliament. The Minister’s comments were extremely helpful and illuminating. I am sure that it will be necessary to study what she said in some detail between now and Report, but for now I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 203A and 204 not moved.]

moved Amendment No. 204A:

I wish to put before the Committee another piece of evidence in relation to nutrition. It seems that the nutrition that a foetus has in utero will alter the way in which its own foetus will develop during pregnancy later in life. In other words, this is handed on from one generation to the next. We are talking not about nutrition over one generation but about what is probably an epigenetic effect.

Amendments Nos. 204A and 204B have been tabled as a result of concerns that women expecting a multiple birth will receive only the same level of grant as women expecting one baby. I fully understand noble Lords’ concerns but there are two important reasons why we do not support the amendment.

First, I recognise that some women may use the health in pregnancy grant to support their nutritional needs during pregnancy. I know that some noble Lords are concerned that women with multiple pregnancies may have greater nutritional needs and should therefore be paid a higher grant to reflect this. However, there seems to be no reliable evidence to support that view. The availability of the health in pregnancy grant will trigger a discussion with a health professional and bring down the startling figures that the noble Earl mentioned on the number of women who are not receiving nutritional advice. That is one benefit of the existence of the grant. Of course all pregnant women need to pay attention to their health and nutrition.

The Department of Health’s advice on nutrition for pregnant women is based on the recommendations from the independent Scientific Advisory Committee on Nutrition. The committee’s view has always been that there is no evidence to support the view that women with multiple birth pregnancies have greater nutritional needs. We were provided with additional evidence to the contrary by the Twins and Multiple Births Association. We therefore asked the independent committee to look at this evidence—we took it extremely seriously—to see whether its advice would change as a result. It did not. In the conclusions of the committee’s report on this issue, which I am happy to make available to noble Lords, it stated:

“The Committee concludes that the evidence fails to support the assertion that women deliberately increasing their nutritional intakes beyond current recommendations in multiple pregnancy can improve the outcome”.

We also contacted the chair of the Scientific Advisory Committee of the Royal College of Obstetricians and Gynaecologists to see what assessment he made of the available evidence. He said that,

“there is no evidence indicating that additional nutritional supplement will influence the preterm delivery rates or the low birth weight rates. There are some personal communications and surveys which indicate there might be some benefit but certainly there are no scientific studies to back them up”.

Secondly, there are the additional costs involved after a woman gives birth to more than one child. There are existing support schemes to help mothers in this situation, where money is paid per child, including the Healthy Start voucher scheme, child benefit and the Sure Start maternity grant.

I have indicated that the Government have taken this issue seriously and have sought to determine whether there was a justification for any change on the basis of multiple births. In the light of these arguments, I hope that the noble Earl will feel able to withdraw his amendment.

It is reassuring to know that the evidence provided by Tamba has been taken with due seriousness by Ministers and the department. I note what the Minister said about the value of the advice to pregnant mothers who are expecting more than one child. That will certainly provide an opportunity for relevant issues to be raised at that point. My noble friend will doubtless study the Minister’s remarks with interest. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 204B not moved.]

On Question, Whether Clause 125 shall stand part of the Bill?

I hope that the Committee will think it right to debate this and the subsequent two clauses in the round and, in doing so, examine the rationale for the policy that they embody. Perhaps I should begin by making it clear that I do not oppose these clauses. I am the first to recognise that health in pregnancy is an extremely important issue. However, some fundamental questions need to be asked about why the Government have chosen to do precisely what they are now doing in this part of the Bill.

The health in pregnancy grant is to be a non-means-tested, non-taxable benefit payable to all expectant mothers who have reached a specified stage of their pregnancy and who have received advice about their health from a health professional. When the current Prime Minister first announced the policy in December 2006, he said:

“I have received powerful representations that in the last months of pregnancy, when nutrition is most important, and in the first weeks after birth, the extra costs borne by parents could be better recognised if we did more to help through the universal benefit”.—[Official Report, Commons, 6/12/06; col. 308.]

At that time, it was planned to make the grant an extension of child benefit, but the rationale for introducing it was specifically focused on maternal nutrition and the extra costs of having a child.

The Pre-Budget Report of 2006 said:

“The Government recognises the importance of a healthy diet in the final weeks of pregnancy”.

The Secretary of State for Health reannounced the grant in a speech at Toynbee Hall last September. He said:

“This substantial payment will be directly linked to improving nutrition, so it will be paid alongside nutritional advice, and the sum of money will be sufficient to help every mother eat healthily during her pregnancy”.

That was odd. If one looks at the evidence about the effect of maternal diet on the health of the unborn baby, it tells us something very different. In 2002, the Committee on Medical Aspects of Food and Nutrition Policy published a review of the welfare food scheme. It said:

“Although it has been argued that maternal nutrition during pregnancy has an important effect on foetal growth (Barker 1992) evidence of a relationship in generally well nourished populations like that of the UK is inconclusive … the relationship between dietary factors during pregnancy, outcome and birth weight”,

is,

“not strong”.

The review also notes:

“There are no national data on the dietary intakes of pregnant women”.

My first question to the Minister is what evidence did the Prime Minister rely on when he stated that nutrition in the last months of pregnancy was “most important”? The evidence that I have seen is rather different. One of the conclusions of the report to which I have just referred was that,

“improving the dietary intake of women of childbearing age has the potential to ensure that the nutritional status at conception is adequate to support optimum foetal development ... There is clear evidence that women are nutritionally vulnerable before conception”.

That conclusion was endorsed by Rosemary Dodds of the National Childbirth Trust in her oral evidence to the Public Bill Committee in another place. Why, therefore, did the Secretary of State say that the health in pregnancy grant would be directly linked to improving nutrition and receiving advice about nutrition? The truth is that giving advice to women at the 25th week of pregnancy about diet and paying them money to follow up that advice are unlikely to have any measurable effect on the health of babies. The original policy justification looks very weak indeed.

Since last September it is noticeable that Ministers have been rowing back quite strenuously from the nutritional arguments. A Written Answer in the other place last December was all of a sudden more vague and general, referring to,

“the important last weeks of pregnancy”,

and saying that the grant,

“recognises the additional costs involved during pregnancy and in the run-up to birth”.—[Official Report, Commons, 17/12/07; col. 1124W.]

We are therefore now in rather different territory. The justification for the grant given by the Minister in another place, Mr Bradshaw, when he spoke to the Public Bill Committee, was that it would help women to “make essential purchases” before the baby’s arrival. He cited research from St Thomas’s Hospital that shows that women suffer more stress over money worries during the later stages of pregnancy. He said:

“Specialists say that it is important to reduce stress to avoid risking complications in pregnancy”.—[Official Report, Commons, Health and Social Care Bill Committee, 24/1/08; col. 461.]

I do not think that anyone could disagree that women with financial worries are cheered up by having a dollop of money put in their hands by the taxpayer. But value-for-money considerations come into play. If you are setting out to relieve financially related stress, surely you do that by targeting money at those who need it. I am sure that there are many women who in late pregnancy would welcome a little more help in paying the bills, but by no means every pregnant woman needs that sort of help. If the Government had spoken of the need to reduce health inequalities and then created a grant directed at poorer and less healthy sections of society, that would have been much easier to understand. Sure Start maternity grants are already available to low-income mothers and those grants could perhaps have been enhanced in some way. But the Government have not made that argument. The HIP grant will be universal.

Therefore, the question raised by the policy is whether the Minister is satisfied that the grant represents value for money in terms of the health benefit that it will confer on better-off women. How will paying a lump sum of £190 to a woman on an average income or a higher-than-average income deliver benefits to society that are commensurate with the aggregate cost to the taxpayer? If the Government believe that there are likely to be such benefits, what are they and how will they be measured?

New policy has to be evidence-based. The evidence is that this grant cannot be justified in terms of its nutritional benefits, as was originally claimed. It cannot be justified in terms of improving health in pregnancy, other than in the loosest possible way. Nor can it be justified in terms of being a grant that will be targeted on the less well-off. We are therefore left with a rather nagging question: why are the Government doing what they are doing? I am sure that every pregnant woman can benefit from advice about healthy lifestyles—avoiding smoking and excessive alcohol consumption are the obvious examples—but do we need to pay them a grant in giving that advice? It could be given, and usually is, by health visitors and midwives during the ordinary course of their work.

The King’s Fund has called the measure “silly”. I am not sure that I am in a position to agree or disagree with that assessment, as I still need a better understanding of what the Government hope to get out of the policy. Rosemary Dodds of the NCT put it well in her evidence to the Public Bill Committee when she said:

“I think it is important to be clear about the intent in order to evaluate the impact … you cannot be evidence-based unless you have a reason for doing things”.—[Official Report, Commons, Health and Social Care Bill Committee, 10/1/08; col. 87.]

What is the Government’s intent? Please can we have a clearer idea of their reasons?

The noble Earl reminded me of the third point that I wanted to make earlier. He has added another query to that question. My earlier question, which was in a way answered by the noble Baroness, was how she could be absolutely sure that the health professionals would give consistent clinical advice across the piece. If one talks to mothers or reads information from a number of organisations, one will learn that there is a great postcode lottery in the availability of clinicians in these groupings and that health visitors often do not have the required time to give the kind of advice that might be required.

My further query, following the noble Earl’s intervention, is on what basis the healthcare professionals would give the advice. If the evidence indicated that different nutritional inputs, apart probably from folates, which are evidenced but not mentioned here, did not make a difference, what would they advise, particularly as the Government have now said that the grant might be to provide items of clothing or other things—I use “things” in a different context here—to alleviate a mother’s anxiety in the early days of pregnancy? I am not against the grant. Everyone who is expecting a child is pretty anxious about the added cost, but, like the noble Earl, I wonder how the advice will be given. I have sympathy with his view that the grant, rather than being universal, might better have been directed to those who are in greater need. What is the Minister’s advice on that?

I declare an interest as a patron of the National Childbirth Trust. It is an amazing organisation, with 72,000 members across the UK. It states in its response to the Government’s proposals that it strongly supports a universal benefit for the following reasons. First, a universal benefit has high take-up rates. Child benefit reaches more children living in poverty than any other benefit or tax credit. The trust cites, secondly, ease of administration. Universal benefits have fewer administrative or technical difficulties than means-tested benefits or tax credits. It mentions, thirdly, avoidance of the poverty trap. Increases in universal benefits benefit low-income families directly, as they are not offset against child tax credits and do not vary according to work opportunities. Those arguments are valid, but I share my noble friend’s view that the money should be targeted at those most in need. The Government’s intention to reduce inequalities in health is valid, but is this really a good use of public money? Are we getting value for it or would it be better if it were targeted?

As my noble friend said, the Government have to be explicit about how they intend to achieve the benefits from the grant. I listened to the noble Baroness, Lady Finlay, and my noble friend. There seems to be an extraordinary conflict and lack of evidence. Scientists seem not to be sure about nutritional benefits to the mother and particularly to the baby. I have taken advice from Professor Martin Wiseman from the Institute of Human Nutrition at the University of Southampton. He explained to me in detail how very slim is any evidence and that what there is seems to be conflicting. I go back to my noble friend’s question: what really is the purpose of the grant?

The National Childbirth Trust also questions the idea of a lump sum. It sets out clearly the benefits of regular payments versus a lump sum. It states in its response to the proposals:

“Child benefit is paid weekly or monthly directly to the mother. This means that women can rely on it as a regular supplement to the household income for the payment of day-to-day expenses such as food and fuel costs. A lump sum would appear less likely to be used for weekly or daily costs, including food, and more likely to be spent on one-off payments for larger items. Following a recent visit to Australia, Professor Debra Bick of Thames Valley University informed the NCT that in Australia single payments to parents in pregnancy have been coined ‘plasma payments’ as they are typically used to purchase flat-screen TVs”.

When women receive the money—and one of the great benefits is that it goes straight into the mother’s purse, which is important—I do not want to be judgmental as to how they spend it. But if the purpose is really so that pregnant women can buy buggies or whatever other equipment they want for the baby, the Government need to be clear on that and tell us exactly why they are introducing this grant.

On the point raised by the noble Baroness, Lady Howarth, I have reservations about the idea that you cannot get a grant until you have had advice. We know that some of the most disadvantaged women are very late in presenting to antenatal clinics. They get a double disadvantage in that they do not get the grant and they do not have antenatal care. It is interesting that the NCT says:

“The text of the Bill refers to the women receiving ‘advice on matters relating to maternal health from a health professional’. The NCT and the relevant health professional bodies”—

and here they include the Royal College of General Practitioners and the Royal College of Midwives—

“pointed out when the Healthy Start vouchers were planned, that these health professionals were not experts in tailoring dietary advice to individuals and would need additional training. This was promised, in line with the implementation of the Healthy Start scheme, but never delivered”.

The NCT recommends that,

“the Government commits ring-fenced funding alongside introduction of the Health in Pregnancy grant to nutrition training for health professionals”.

I have reservations about the grant. I am delighted that pregnant women should have their income increased, as clearly it is a time when expenses go up and income often reduces. Women stop working and in many cases only for a short period do they get their salaries or other income redressed by the company that employs them. I should like to ask about the amount. I know that it is part of regulations, but I should like to understand what sort of sum the Government are considering. New Section 140B(2) says:

“Different amounts may be prescribed in relation to different cases”.

What does that mean? Does it mean that there is some sort of means test, or is it simply a lump sum for a particular amount that will go to every woman?

I shall add my two pennyworth on this one. I have total incomprehension about why this benefit was decided on. It is like a benefit seeking a rationale. I am concerned about the opportunity costs of an allocation of this size from the Treasury. What alternative are we missing to promote equalities of health among pregnant women and equalities of access to antenatal care? Why have we decided to spend this money in this way? I should also like some notion of what we expect the Treasury to devote to this grant. What will we be spending on it? That will give us some notion of what we are missing in its place.

I am extremely sceptical when I hear it said that nutrition is not important. I remind the noble Baroness, Lady Howarth, that for folate to do any good it has to be present when a woman gets pregnant. In fact, evidence shows that we should be improving the health of grandmothers: it is what your mother eats when she is a child that really makes the difference, not what you eat when you get pregnant. Indeed, there is good evidence that action that we have taken in the past has improved the nutrition of babies, children and mothers in this country. Noble Lords may remember the wonderful free orange juice that some of us drank in the 1940s and 1950s and the lovely bottles of a third of a pint of milk, which I remember that I loved. During that time, with those measures we did away with rickets and we massively improved the health of children, particularly in the north of England.

Therefore, if we were to give away vouchers for nutritional food—my noble friend Lady Finlay has scribbled the words “fruit and veg vouchers”—that would be fine, but I do not really understand the purpose of the grant. Perhaps it is a bribe to get people to attend antenatal clinics. If it were a bribe to ensure that people registered, that might be legitimate, as word would go round quickly about how to get the grant. Can we say directly that this is a very effective way of encouraging people to take up antenatal care?

I shall be quick, as I do not want to delay the Committee. The Government are providing an opportunity to improve the lot of pregnant women and their offspring. The evidence that I cited previously comes from women who were severely undernourished prior to conceiving and it is their female offspring who will pay the price when they become pregnant. Those people were effectively starved. The biggest problem that we have at the moment is malnutrition, often obese malnutrition. That problem is completely different from the problem of undernutrition, which is often protein undernutrition. This has been a terribly important debate. It would be helpful if between now and Report we could all have some clarity about what the Government hope to achieve. It seems that the grant would present us with a wonderful opportunity if it were used correctly.

The noble Baroness is right: this has been a very good debate. Part 4 introduces the health in pregnancy grant, which will provide additional financial support to expectant mothers during the important last weeks of pregnancy. I welcome the opportunity to set out this policy in more detail and hope that I shall be able to address some of the specific questions raised by noble Lords about the grant.

We believe that for many women, particularly those less well-off, the grant will provide a welcome addition to their income at what is often a very difficult and stressful time. We know that life chances are impacted upon before birth and that the support provided to the expectant mother during pregnancy has an impact on those chances. We also know that maternal health and well-being are affected by a wide range of factors, from the behaviour of the expectant mother to her financial circumstances and the support she receives from professionals and her family and friends.

The Government’s wider strategy of providing support for women during pregnancy and the early years of their child’s life has seen statutory maternity pay increase from 26 to 39 weeks, the creation of a new right for fathers of up to 26 weeks’ additional paternity leave and pay and the extension of the right to request flexible working to carers of children under the age of six. The health in pregnancy grant fits into this wider strategy by providing additional financial support for women during pregnancy. Linking the grant to the advice available from health professionals during pregnancy will help all pregnant women to access adequate support, thereby helping to alleviate some of the strain that competing financial pressures can cause in the run-up to birth. Since the Bill was introduced, the Government have been clear that the health in pregnancy grant is intended to support a woman’s general health and well-being in the later stages of her pregnancy so, linked to the advice from a health professional, the grant will provide flexible additional financial support, enabling pregnant women to identify for themselves the best way in which to spend the money.

On the point addressed by the noble Baroness, Lady Cumberlege, about Australia, the Australian baby bonus is very different from the health in pregnancy grant and is more similar to our existing system of child benefits, so making a comparison with the new grant may not be very useful. The Australian baby bonus is worth the equivalent of approximately £1,900—in other words, 10 times the amount of the health in pregnancy grant. It supports women with the cost of bringing up a child, like the UK system of child benefit, and is not payable until after birth. It aims to reverse the decline in the fertility rate and to encourage Australians to have larger families. Now, there’s a thought! It is payable when someone has a child and is not linked to any other conditions of entitlement. Paid maternity leave in Australia is not compulsory, so it would assist women going back to work.

The grant was criticised at Second Reading and in the other place for being paid too late in pregnancy to have any beneficial effect on a woman’s nutritional needs during the early stages of her pregnancy and for not recognising that women expecting twins or multiple births have additional nutritional requirements. However, there is already support for nutrition from early in pregnancy through the Healthy Start voucher scheme. The health in pregnancy grant is not designed to duplicate Healthy Start; if the grant was just about nutrition, it would have been very differently designed in order to meet that express purpose. Because the health in pregnancy grant is intended to have a much wider purpose, the conditions of entitlement and the timing of the payment have been designed to help pregnant women with the costs of their individual needs for a healthier lifestyle and with the wider costs in the weeks leading up to the baby’s birth.

The noble Baronesses, Lady Cumberlege and Lady Murphy, raised the issue of the different amounts that may be prescribed in the Bill. The flexibility to vary the grant is for the future; it allows us to change the grant from £190, which we currently intend, if necessary. The total cost of the grant is £145 million per year.

At the beginning of his remarks, the noble Earl raised the issue of what my right honourable friend the Prime Minister said in his PBR 2006 speech. He said that the extra costs borne by parents should be recognised in the last months of pregnancy and that nutrition is important throughout pregnancy. I do not think that anybody would disagree with those words.

The noble Baronesses, Lady Howarth and Lady Cumberlege, raised the issue of the type of advice that might be given. It is health advice, not necessarily nutritional advice, although that would be contained within it. It would include lifestyle issues, such as smoking, weight, diet and so on. The grant may well encourage women who have not yet presented for support and antenatal care during their pregnancy to come forward into the system, which suggests that it is a very good idea. As has already been mentioned, research by the baby charity, Tommy’s, has shown that the stress that pregnant women face as the result of financial worries has an adverse impact on pregnancy and birth, and getting £190 at the 25th week may help with that.

Several noble Lords, including the noble Earl, raised the issue of why the grant is paid to everyone and what the evidence base for that was. I remind noble Lords that when child benefit was introduced it was not means-tested and was made a universal grant, which has been praised as important. The introduction of that grant was not based on evidence at all; there was no evidence base when child benefit was introduced. It was thought that it would be a good idea of benefit to women and their children. We think that this benefit will have a beneficial effect on women and their children. The fact that there is no evidence base at the moment that says that it will have an impact—that it will do one, two, three, four—is not a reason for not introducing this grant. The effect it has is surely the important matter.

The noble Baroness, Lady Howarth, asked about the quality of the guidance and the support that might be given. In my previous speech, I said that there is an advice booklet for health professionals, Routine antenatal care for the healthy pregnant woman, which sets out the kind of issues that health professionals should cover in their advice to expectant mothers.

Clause 126 provides the Commissioners for Her Majesty’s Revenue and Customs with regulation-making powers to enable officials to administer the new health in pregnancy grant. I hope the Committee will have noted that Clause 126 does not create any new powers but extends existing regulation-making powers under the Social Security Contributions and Benefits Act 1992, the Social Security Administration Act 1992 and the Social Security Act 1998, which provide for the administration of social security benefits.

Clause 127 introduces a civil penalty that may be imposed on any person who fraudulently or negligently provides false or incorrect information in relation to the health in pregnancy grant claim. There will always be a very small number of people who set out deliberately to deceive. This system of penalties is a deterrent and is in line with the other provisions administered by HM Revenue and Customs. I hope the Committee will see clearly that this provision is not about penalising those claimants who do their best to claim in the correct manner, nor is it designed to deter pregnant women claiming money to which they are entitled. The clause seeks to provide a deterrent for the small minority who will try to cheat the system.

I thank all noble Lords who have spoken in this very useful debate and I thank the Minister for her reply. She has done her best, but I am only partly reassured by her response. The grant is called a health in pregnancy grant but there seems to be no evidence of any substance that the grant will actually improve health in pregnancy. To rely on the argument that by giving advice to people as a condition of receiving the grant you are thereby likely to improve maternal health seems pretty shaky at best when you are proposing to issue that advice at a late stage in the pregnancy. That is the key point.

I expected the Minister to make more of the point made by the noble Baroness, Lady Finlay, about obesity. It is interesting that the Government’s obesity strategy launched in January, Healthy Weight, Healthy Lives, made no mention of the health in pregnancy grant despite the fact that it explicitly recognises the importance of monitoring and controlling the growth rate of babies.

Paragraph 30 of the Explanatory Notes contains the following statement:

“The health and general well-being of pregnant women in the last months of pregnancy is widely acknowledged to have a correlation with the health and development of a child later in life”.

I read that several times because I was not sure what the evidence for that is. I then came to the realisation that the words were carefully chosen in that there may be a correlation between the two but whether there is a causal relationship is another matter.

The noble Baroness said that the grant had a wider purpose than merely nutrition, and she made a virtue of the fact that there was a lack of an evidence base for it. I cannot help replying to her that the whole policy reeks of post hoc rationalisation. We are left with outstanding questions, the chief of which are whether the grant represents value for money and how we will measure whether it is a success. I agree with the noble Baroness that those are key questions, but I am not sure how this or any future Government will be able to make that assessment properly. However, it is time we move on. Once again, I thank everyone who has spoken.

Clause 125 agreed to.

Clause 126 [Administration: Great Britain]:

moved Amendment No. 204C:

The amendment would prevent HM Revenue and Customs recovering any overpayments of the health in pregnancy grant that arose where a person, fraudulently or otherwise, misrepresented or failed to disclose a material fact which led to a payment being made where it should not have been.

The noble Baroness is absolutely correct that this is not a new power; we are simply extending the scope of Section 71 of the Social Security Administration Act 1992 to include the health in pregnancy grant, which means that the recovery of any overpayments will be subject to the same rules as the recovery of any other social security benefit.

The power to recover overpayments, in addition to the power to impose a penalty, is a deterrent to fraud. I am sure that noble Lords will agree that it would not be sensible in cases of fraud or misrepresentation to be able to impose a penalty on that person but have no power to recover the money they should not have received in the first place. I should emphasise that we anticipate, possibly because of the nature of the grant, very few instances of overpayment because entitlement will be established at a fixed point and claims will be supported by certification from health professionals. However, no woman would face a possible overpayment if she lost her baby or had a still birth after making her claim or receiving payment of the grant. This is because, at the time of claiming the grant, she will have met the entitlement conditions, apart from anything else, so the grant would not be an overpayment anyway. I hope that in hearing my explanation of this provision, the noble Baroness will feel able to withdraw the amendment.

Can the Minister confirm that the same would apply to a woman who had a soft tissue foetal abnormality such as exomphalos that resulted in the late termination of the pregnancy, rather than an actual miscarriage. It would be important to have that assurance for the record.

My advice is that the answer to that is yes.

I thank the Minister. That is extremely helpful; she has answered the question that was at the heart of my concerns, and I hope that the statements that she made will be reflected in guidance and made widely available. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 205:

I am tempted to ask the Minister a question or two because whenever we talk about Her Majesty’s Revenue and Customs sharing information with anyone some obvious questions tend to arise. However, I take it that the power or duty placed on HMRC is extremely limited and that it is limited with regard to the amendments to the context of the grant, so there is no question of unauthorised people becoming aware of confidential details of people’s incomes by virtue of the payment of this grant and the mechanism by which it is paid.

The Government acknowledge that the noble Earl is completely right. The disclosure of information of HMRC customers without their express consent or knowledge is a sensitive issue. The Data Protection Act sets out the framework enforced by the Information Commissioner and the courts. We intend that the department will have specific controls on the information-sharing and the duties of confidentiality, which are being enhanced by amending the Data Protection Act to guard against misuse of providing information. Indeed, that is exactly our intention; we will ensure that those safeguards are in place.

On Question, amendment agreed to.

Clause 126, as amended, agreed to.

Clauses 127 and 128 agreed to.

Clause 129 [Administration: Northern Ireland]:

moved Amendment No. 206:

moved Amendment No. 207:

I support the amendment, which has been very well introduced by the noble Baroness, Lady Barker. The amendment would ensure that the centrally negotiated and secured funding for NHS community pharmacy services continued. It does not impede local discretion and the development of local services to address those needs.

It is important to retain centrally secured funding, negotiated between the Department of Health and the PSNC, as the certainty of central funding enables pharmacy contractors—whether multiples or independents—to invest in services with confidence. Most important is that it provides them with a predictable financial context.

The All-Party Pharmacy Group, of which I am a vice-chairman, held a very long inquiry into pharmacy. We produced our report last year. One of our findings was that in order to expand NHS community pharmacy, as the Government and many of us wish to do, it was really important that pharmacies have the confidence brought about by a stable financial environment.

The Government’s White Paper on pharmacy, published very recently, sets out a wide range of good, new services that pharmacies will provide in future. The objective of expanding services requires a stable and predictable financial context, and the amendment will help to ensure that that will be the case.

I know just how much a pharmacy can contribute to the well-being and fabric of a local community. In my own village of Newick we have a pharmacy that does just that. Now it is under threat because the local GP practice has, unbeknown to the village, decided that it will dispense as well as prescribe. The village has risen up and is furious. We have leafleted every house, not only in the village but in the surrounding villages; we have banners; and we have the press and the media. In another debate, the Minister said that she sensed a campaign was coming on when the noble Baroness, Lady Gardner, was speaking. Our campaign is something that she would not believe. We are thinking of going to judicial review. We have had Acts of Parliament in 2006 and 2007 on patient and public involvement, yet in this case local people have not been consulted and have learnt about it through roundabout means—a leak. I hope that in future this sort of thing will not happen and that councils, such as my parish council, will not have to go to all the effort that it is going to because it has not been consulted.

This has been a rant because we feel very strongly. One of the interesting things is that the 2006 and 2007 public participation Acts, which were designed to involve the public, have not yet been enacted. We pass all this legislation, yet here we have a case where we could really use what this Parliament has done to involve patients and the public in important decisions. Acts have been passed but not enacted. I hope that the Government will get their skates on and improve that. I have quite disgracefully used this debate as a vehicle to put on record some things that are happening and how we are losing our local pharmacies because GPs, who are now very well paid, can see a way of increasing their income at the expense of local pharmacies. That reduces our choice of who we can go to for professional advice and the over-the-counter medicines that we so badly need, and I support the amendment.

Section 164 of the NHS Act 2006 allows the Secretary of State to authorise any primary care trust or other person to exercise the functions of determining authorities in relation to the making or varying of a determination on the remuneration of those providing NHS pharmaceutical services. Section 164(5)(b) sets out that the instrument of appointment may be contained in regulations. This amendment seeks to remove the current discretion in Section 164 and instead provide that regulations should set out the determining authority for remuneration of those services that are part of the national element of the community pharmacy contractual framework; namely essential services. The intention is to ensure that the Secretary of State will continue to determine remuneration for these national elements.

I am aware that the noble Baroness’s honourable friend in another place spoke on this, and he spoke to me about it recently. I recognise the concerns that this amendment seeks to address, and I hope I will be able reassure the noble Baronesses. The noble Baroness, Lady Cumberlege, knows that I am in sympathy with her remarks. I did not think they were a rant but were informative and helpful to the Committee in understanding the context of this amendment. In consulting on the proposal to transfer funding for pharmaceutical services to PCTs, we indicated that the Secretary of State would continue to set the fees and allowances for the national elements of the community pharmacy contractual framework in line with provisions in Section 164(3)(a) of the NHS Act 2006.

I am happy to state on the record that the Government remain fully committed to our view that fees and allowances for essential services and advanced services should continue to be determined nationally in negotiation with the Pharmaceutical Services Negotiating Committee and in discussion with the NHS. It is not sensible for pharmacy contractors or PCTs to negotiate such payments on an individual basis. That would place complex and inappropriate administrative burdens on the NHS and community pharmacy. For example, it could involve PCTs and pharmacy businesses operating complex payment and monitoring systems against different sets of fees and allowances. The level of fees and allowances for essential and advanced services will continue to be set nationally and payments to contractors must reflect that. PCTs will be unable to vary nationally agreed levels of funding. This approach mirrors that taken in other national primary care contracts, such as general medical services, for example. In the light of that explanation, I hope that the noble Baroness will withdraw her amendment.

I thank the Minister for that helpful reply. Both she and my honourable friend in the other place, who is a pharmacist, which I think is the word that the noble Baroness was searching for, will be relieved about that. This is about the protection of local pharmaceutical services, many of which are small and independent and provide much more to their local health economy than the mere dispensing of medicines. The Minister’s comments were helpful and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 12 agreed to.

Clauses 135 to 137 agreed to.

I beg to move that the Committee do now adjourn for 10 minutes and that we reconvene at 2.36 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was adjourned from 2.26 to 2.36 pm.]

moved Amendment No. 207A:

I very much welcome the amendment. The Government are to be congratulated on bringing it forward. With this amendment, they will fulfil their original intention, which was thwarted by the YL case in the House of Lords. That is very much to be welcomed. It was not only their original intention; when that intention failed, the Government promised to bring forward an amendment during the course of the Committee, which is what they have done.

I note that self-funders—people who pay for their own care—are not covered by the amendment. This is still an important issue, but the organisations that have been lobbying for this—Scope, the RNID and the RNIB, of which I am the chairman—are no longer calling for this in the Bill, and nor is the group including Age Concern, the British Institute of Human Rights, Liberty, Justice and Help the Aged. However, it remains an important issue and they and I hope that it will be possible to return to it in the future.

The Commission for Equality and Human Rights is anxious to be reassured that guidance will be published in England, Wales, Scotland and Northern Ireland so that people can understand their rights. The Age Concern, British Institute of Human Rights, Liberty, Justice and Help the Aged group would also be grateful if assurances could be given on the record that the following scenarios are covered: first, care home residents whose care is wholly funded by the NHS under the NHS continuing healthcare arrangements; secondly, care home residents who receive an NHS-funded nursing care contribution of £1,011 a week for care provided by a registered nurse; and, finally, people who are self-funding residents lacking mental capacity living in an institutional setting who are effectively detained by the institution—that is, the Bournewood-type cases.

It might seem inconsistent to ask for reassurance on that point having recognised that the case of self-funders is not to be covered in the Bill, but the point is that residents lacking mental capacity who are living in an institutional setting are effectively in a different category and are not in a position to make decisions for themselves. As I say, they are effectively detained by the institution. I invite the Minister to consider whether they should not be regarded as in a separate category from self-funders generally and whether they should be covered within the scope of this legislation.

I add my thanks to the Government for responding so wholeheartedly to the demands from various sides of the human rights lobby that private care homes should fall within this legislation. The noble Baroness, Lady Stern, has specifically asked me to express the appreciation of the Joint Committee on Human Rights for this response.

I was going to ask some of the same questions on publicly arranged care as the noble Lord, Lord Low, has just asked. Off the top of my head, however, I can think of the case of an individual who could not find a list of care homes in the vicinity but who was provided with one by a statutory social worker at a hospital working on behalf of the local authority which covered homes that relatives could come and look at. Like most of these individuals, he is funded by the public purse in the sense that he receives attendance allowance, which almost all care home residents receive, and nursing care payments. Does that constitute publicly arranged care in any way? It is not formally a payment under the National Assistance Act. It is important that we know this, because I reckon that about a third of official self-funders are paid for by the public purse to some extent, perhaps up to a quarter of their costs. I should like clarification on that. Perhaps we need to campaign on the other front, on self-funders, in other legislation, but we are very pleased about this.

I join other noble Lords in welcoming the Government’s move in this amendment and their recognition of a situation that was clearly wrong and harmful to many vulnerable people. I must also put on record my remaining regret that, although people might be in exactly the same situation in the same institution, one of them might not be afforded the same protection because he has a capital fund that may not be particularly large, even in today’s property market.

I wish to make two points, the first of which follows the comments of the noble Baroness, Lady Murphy. The term “publicly arranged” needs to be clarified. That could perhaps be done through the consultation process. The term could have a damaging effect on the assessment of needs by local authorities. Some local authorities already hide behind the potential financial impact on them of giving people advice as a reason for not giving any and for not performing assessments. We need clarity on that.

My second point has not been raised so far. Unlike many adults with disabilities or learning disabilities, many older people in residential care have conditions that can change rapidly, which is why they often wind up in the Bournewood gap. They go into a residential home because they are becoming slightly frail or unable to manage, then they experience physical or, more likely, mental deterioration. Will the consultation exercise which the noble Baroness mentioned include provision for reviews? These people’s personal circumstances can change. It is not unusual to find people in residential care who went in perfectly capable of managing their own affairs but who, because of deterioration, have wound up lacking mental capacity or are in the Bournewood gap. Although the noble Baroness got in her retaliation first on many other points, I do not think that she mentioned that. If she could address that point, I would be pleased.

I cannot understand why everyone is not covered by the Human Rights Act. What is the difference if you are self-funded or state-funded? You are a person, and surely all people should be covered. I hope the Minister will explain.

I reiterate that. It seems extraordinary that your human rights are governed by your financial situation. I thought that human rights were fundamental, but clearly that is not so. I know the small print that leads to this conclusion but I cannot but think it lacks justice. We should be seeking justice particularly for elderly people, though disabled people, too, have conditions that change. Those who are self-funders should be under the same sort of conditions.

The noble Baroness, Lady Greengross, raised this issue initially many months ago on the Floor of the House, and I welcome the position that the Government have taken. However, I should like to ask the Minister about the consultation she described as taking place on the outstanding issues. What will the nature of that consultation be and what is the timetable? When does she expect there to be some discussion on the outcome? Does she see some of the issues raised, in addition to those which have been welcomed, being addressed by this consultation?

Perhaps I may briefly add my own welcome to these amendments. The points I intended to raise have already been raised, so I will not repeat them. However, I took particular note of a point made by the alliance of Scope, RNID, RNIB and RADAR when they said that these amendments will certainly provide encouragement or, indeed, formal duties on the part of care homes to develop a culture of respect for the human rights of their residents. I think that that is most important.

As regards the apparent lack of justice mentioned by the noble Baronesses, Lady Masham and Lady Howarth, it does seem anomalous that self-funders should not have human rights protection. However, I wonder whether the Minister could help us in her reply by spelling out what the remedies are for self-funders, given that they do not have recourse to the Human Rights Act. There are remedies if someone who is funding their own care is subject to cruel or otherwise unacceptable treatment.

I shall try to address all the points that noble Lords have raised. I turn first to the issues raised by the noble Lord, Lord Low. As I said when moving the amendment, it is of course for the courts to decide who is covered by the Human Rights Act, as has always been the case. However, I set out the Government’s clear view that those who are placed in a care home by the NHS, which then pays for their care, are covered by the Human Rights Act.

The Government’s clear view would also be that any person detained under statutory powers in the Mental Capacity Act would have Human Rights Act remedies against the institution in which they were detained. Otherwise, as I have said, it is necessary to consider every case on its circumstances. That is true particularly of non-residential care, which may vary greatly.

The noble Lord asked also about guidance on rights. I can commit that we will work on guidance in England. We will need to discuss with our colleagues in the devolved Administrations what might be done there.

The noble Baroness, Lady Murphy, spoke about publicly arranged care. The amendment is expressly linked to the National Assistance Act 1948. It is the statutory function that matters. As I said when I opened this debate, the consultation will address precisely publicly arranged care.

The noble Baronesses, Lady Masham and Lady Howarth, mentioned people who fund their own care and their rights of redress. It remains fundamental that the Human Rights Act is about public functions. In other words, the legislation concerns the interface between the individual and the state. This is the philosophy that underpins the European Convention on Human Rights and therefore also the Human Rights Act.

The state must ensure that individuals respect each other’s rights, which is not the same as placing private individuals and enterprises directly under obligations which were designed to apply to Governments. It follows that the Human Rights Act is not the appropriate framework for regulating contracts arranged privately, without the state’s involvement, between care homes and private individuals or their families. However, the Bill will strengthen regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements which are in line with the spirit of the relevant provisions of the European convention. This will apply to all providers of regulated care and service users, whether they are publicly or privately funded. While these requirements do not confer on people using health or social care any individual rights of legal redress under the Human Rights Act, they should ensure that everyone receives care which conforms to the spirit of the convention rights.

The noble Baroness, Lady Howarth, asked about the timetable for consultation. As I said in my opening speech, it depends on the progress of these amendments. There is also the wider context of working towards a British Bill of rights and responsibilities. I cannot therefore give a definitive timescale, but my honourable friend the Minister for Human Rights is seized of the importance of this issue.

Does this happen in private and state prisons? Are some prisoners covered by human rights and others not? It seems most extraordinary.

All prisoners are covered by the same human rights legislation, whether they are in a privately funded or a publicly funded prison.

Then surely all care homes should be covered.

This is about a person’s private contractual arrangement with the service provider.

On Question, amendment agreed to.

Clause 138 [Direct payments in lieu of provision of care services]:

moved Amendment No. 208:

The noble Baroness, Lady Wilkins, is recovering from an operation. That is why she is not here today. Of course, I support the amendment.

The noble Baroness, Lady Masham, is always admirably brief and to the point in her remarks. I thank her—and, of course, we all wish the noble Baroness, Lady Wilkins, all the best in recovering from her operation.

Amendment No. 208 is aimed at safeguarding both the vulnerable person who lacks capacity, and the suitable person who may manage the direct payment on their behalf. I hope that noble Lords will agree that the spirit of this amendment is very much in line with the powers that we are already seeking to take in the Bill, and is therefore not needed. But I will deal with each additional power and, I hope, set people’s minds at rest.

As regards new subsection (3)(m), I can reassure noble Lords that a suitable person will not be forced to receive a direct payment on behalf of a person lacking capacity. Being a suitable person will not automatically mean that a direct payment will be made to that person; it is simply the first step in the process. Let me be absolutely clear on the record that no direct payment can be made to a suitable person unless they give their consent.

As regards new subsection (3)(n), under the current scheme, direct payments can be paid as part of a mixed package of support from the local authority. For instance, if a person enjoys receiving day care at a local authority-funded centre and is then reassessed as needing additional support, they may continue to receive day care provided at the day centre, while the additional funds, to meet other needs, are provided as a direct payment. I can confirm that it is envisaged that local authorities will continue to arrange mixed packages under the new scheme.

Person-centred planning, as dealt with in new subsection (3)(o), is a concept that runs throughout the provision of social care. The ministerial concordat, Putting People First, was also signed by the key local authority representative bodies, including SOLACE—the Society of Local Authority Chief Executives—which signals their commitment to the transformation of social care. Local authorities are being given £520 million over three years to fund the transformation programme set out in Putting People First. I hope that I have reassured noble Lords that local authorities and Government are already committed to greater person-centred planning.

As regards new subsection (3)(p), I agree fully that it is important to ensure that the right arrangements are in place with regard to vetting and barring and to ensure that the necessary checks are carried out, but also that people do not have to go through unnecessary bureaucracy to receive a direct payment on behalf of a person lacking capacity. I can confirm that it is envisaged that regulations, subject to a full consultation, will set out that where the suitable person is not known to the person lacking capacity, the local authority may be required to ensure that that person has undergone a CRB check.

As regards new subsection 3(q), we are taking regulation-making powers to allow us, if it were thought appropriate, to require local authorities to carry out periodic reviews of a decision about who will administer the direct payment. Setting out the monitoring requirements in regulations will allow us and local authorities to take into account the fact that some people will need less monitoring than others. For instance, a wife who has been involved in the care of her husband for 20 years may need less monitoring than an individual who may not know the person for whom they are receiving the payment.

I turn to a direct question that I was asked about how councils will ensure that a suitable person does not mismanage a direct payment. The regulation-making powers that we will have will enable regulation to set out conditions to be complied with by the suitable person, which may or may not be imposed by local authorities. In addition, it is envisaged that the vast majority of suitable persons will either be court-appointed deputies, donees of lasting powers of attorney or friends and relatives who may already be involved in managing and organising the care of the direct payment receipt. Anyone taking decisions for or acting on behalf of a person who lacks capacity must act in accordance with the Mental Capacity Act 2005. Anyone caring for a person who lacks capacity under that Act, who wilfully neglects or ill treats that person, can be found guilty of a criminal offence under the Act, punishable by up to five years in prison, a fine, or both.

I hope that the noble Baroness feels reassured by what I have said and feels able to withdraw the amendment.

I am most grateful to the Minister for giving an in-depth assurance in response to the points raised. I find it very reassuring, as will everyone else involved in the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 138 agreed to.

Clause 139 agreed to.

Schedule 13 agreed to.

Clause 140 agreed to.

moved Amendment No. 209:

I support the amendment which has been so ably moved by the noble Baroness, Lady Campbell. It is clearly founded on an important principle, that of portability of care, so that care moves with the person. If a person who needs care and support decides to move, they should be able to move with confidence that their care and support will move with them. All of us would agree that mobility—the ability to move where one wants to and live where one wants to—is intrinsic to independence. That is a principle that we should see reflected in this legislation. It has been missing for too long.

I shall speak also to Amendment No. 209A, which is tabled in my name. The Bill gives us a chance to discuss the problems caused by ordinary residence disputes. The severity of the problem is shown by the concerns expressed by a range of organisations, including the Voluntary Organisations Disability Group, the Local Government Association and the Association of Directors of Adult Social Services. I raised this matter last year, with the support of the noble Baroness, Lady Howarth, and others, during the proceedings on the Local Government and Public Involvement in Health Bill, and the Minister was as helpful as she could be. She promised to make a number of small changes to legislation, and they are in the Bill, but the Minister would probably agree that those changes are largely technical, and I do not think they will change a lot on the vexed question of ordinary residence, which has caused so much trouble over the years.

Each year, disabled people are prevented from moving home or moving from residential care to independent living because of bureaucratic delays and disputes about who should pay for their care. The root cause of these problems is the definition of someone's place of ordinary residence, whereby local authorities and primary care trusts determine which authority has responsibility for personal support for disabled people who live in their area. There is no legal definition of ordinary residence, and the guidance is unclear. Some local authorities are using this confusion to delay or avoid paying the costs of care for those for whom they should be responsible. The amendments that I tabled last year struck a chord with noble Lords who, speaking with great experience of the statutory and voluntary sectors, stressed that this problem has been crying out for a solution for decades. There was widespread support for the notion that it is a fundamental principle that the ability to change one's place of ordinary residence should not be dependent on purely administrative considerations or the convenience of health and social care systems and that a framework should be put in place for the transfer of funds between authorities so that the issue of ordinary residence can no longer be used as a basis for refusing to provide care and support.

Local authorities are responsible for social care, and in our mobile society cases inevitably arise where it is not clear which authority is responsible for a particular person's care. That can happen when care homes deregister, when young adults graduate from a specialist residential school, when people want to move from specialist care homes to supported living and in all kinds of circumstances. All these examples are covered by just one sentence of the guidance, which reads:

“If subsequently, by private arrangement, the person moves he may, depending on the specific circumstances, become ordinarily resident in the area of the local authority where he has chosen to live”.

It is little wonder that disputes arise. The department is aware of this and promised to update the guidance by 2004, but that has not yet happened. I would be grateful to hear from the Minister when she feels that the guidance will be updated and expanded in order to cover the variety of situations that give rise to these boundary disputes. Guidance cannot eliminate disputes entirely, so I am concerned also that disputes could drag on for months and even years. Amendment No. 209A is an attempt to deal with this situation more expeditiously.

The amendment, although its drafting is rather complex and its thrust may not be immediately apparent to your Lordships, would introduce a system under which disputes not resolved by the authorities within 60 days would be referred automatically to an ordinary residence panel for determination. The panels do not exist; they would have to be established by the Secretary of State and created by regulations. It would not be possible or necessary to lay out all the details in primary legislation. The Local Government Association, the Association of Directors of Adult Social Services and the Voluntary Organisations Disability Group, all of which I mentioned earlier as being concerned about these issues, support the system which the amendment would put in place.

The status quo is not acceptable. Something must be done. I hope that we will hear from the Minister that she has been able to reflect on the points that I raised at Second Reading and that she may be able to offer a solution that offers real hope of progress in resolving these vexatious and difficult situations.

I rise briefly to support warmly the amendment so ably proposed by the noble Baroness, Lady Campbell, perhaps in part for a personal reason. The principle embodied in the amendment is totally unexceptionable. After all, we have been beset for many years in a different field of the National Health Service by the problem of what one might call “postcode prescribing”. We have known over the years that many authorities in the NHS have been willing to prescribe certain drugs that others have not.

There is no doubt whatever that there is a significant unevenness of social provision throughout the United Kingdom. My younger daughter—even though she is now 57—was a senior nurse in an area in central southern England. More than two years ago, she suffered a very serious accident that left her with spinal and other injuries and a substantial degree of disability. She was in hospital for some considerable time, but when she returned to her own home in that same area, the quality of services and support available to her was frankly quite appalling. Happily, the family was able to arrange for her to move to a specially adapted home not very far from my own in Northumberland, where, by contrast, the services and support appropriate to a person with her degree of disability that she has received from the social services have been quite outstanding. The contrast could not be more striking. If she had moved in the other direction, there would have been a quite serious problem. The noble Baroness, Lady Campbell, has highlighted it and it could be corrected if the amendment were to be carried. The principle is very important: evenness of provision throughout the country.

I declare an interest as the chair of the new charity, Livability, which is a combination of the very old charities of John Grooms and the Shaftesbury Society. We recently ran a campaign called “Freedom to Live”. I apologise that I shall have to leave fairly soon to go and chair the board of Livability, but I felt that I must stay to speak. The noble Baroness, Lady Campbell, far from being inexperienced, as she described herself, made the most eloquent case for an amendment that I have heard for a long time. I congratulate her on that.

For the Government, this is one of two questions in the “too difficult” box, but they could be dealt with quite simply. The two questions are how you deal with someone who has complex difficulties and needs to have the freedom to live and how you move between sectors, which we are not dealing with here. That question is even more complex; if you want to move out of residential care into housing provision or supported living, it is nigh impossible because of bureaucracy.

All those things could be dealt with and we would not even need Amendment No. 209A if the amendment proposed by the noble Baroness, Lady Campbell, was agreed to. A person with complex disabilities might have a package that moved with him and an assessment might be agreed across authorities. I know that seems like nirvana because I have been a director of social services and know the difficulties involved. Ordinary residence and the need for the package to go with you have been fundamental subjects of debate since the 1960s, and we have still not resolved the issue.

If I want to move from one place to another, I can probably contend with the fact that the doctor may not be as good in one place as another and that the hospital in one place may give me a better service in certain areas than in another. But if you have profound difficulties with your physical condition, such as the noble Baroness deals with, it is crucial that what you have gained to live your life and the package that you have built up over a period of time is secure and can be taken with you to the next place. Otherwise, as the noble Baroness pointed out, you have no freedom to live.

There are other areas in which people’s human relationships are interfered with. One young man I know would dearly like to live with his girlfriend. He lives in residential accommodation and would find it very difficult to live independently. His girlfriend lives in a residential home at the other end of the country and, because there cannot be any agreement about how their packages can be joined together, they remain miles apart. We do what we can to ensure that they can meet up, but it is clear that their life quality would be enhanced hugely were it not for that difficulty. They have no freedom to live in their relationship.

The Minister is likely to say that the amendment may not be acceptable. However, I encourage her to go back to the Government and try to resolve these extraordinary difficulties that result in one section of our community having a quite different capacity for quality of life, despite being quite capable of leading those lives, than some of us enjoy, simply because we cannot sort out the bureaucracy of packaging. The cost to the nation as a whole is going to be the same, but it comes down to postcode and geography. I hope that some solution can be found to this very complex but manageable problem.

The cost to the nation of the amendment would be lower than the current costs because we have people who bounce in and out of hospital admission because their social system has run down and they have become depressed and physically ill in the process.

I sympathise completely with the intention behind Amendment No 209, which was so eloquently moved by the noble Baroness, Lady Campbell, and spoken to by other Members of the Committee. They will know that local authorities are already subject to statutory guidance, which sets out that they should co-operate to make appropriate services available to people moving from one local authority area to another. The issues raised are challenges to our care system. There is no question about that. The noble Baroness, Lady Campbell, knows more than anyone that this is an issue that involves changes to culture as well as resources.

The Government believe that a radical rethink of the care and support system is required, and at this stage we remain open-minded about the solutions the noble Baroness, Lady Howarth, has so ably described. We want to get the views of the public and a range of experts on the criteria that the new system needs to meet to inform our thinking to develop the range of options that will be presented in the future Green Paper. As correctly predicted by the noble Baroness, the process on Reform of the Care and Support System is under way. Last week the Prime Minister launched a public debate around the principle that will underpin the provision of care and support services in coming decades. A major part of that will be the trade off between local flexibility and the national standards that we are debating here. I cannot satisfy the noble Baroness except to say that we share the same intentions.

Moving on to Amendment No. 209A, I think that I can give more specific reassurances and action on these issues. I am very sympathetic to the concern of the noble Lord, Lord Low, about the difficulties that can arise for individuals caught between two local authorities that are unable to agree which is responsible for arranging their care. First, there is the issue of updating the guidance that exists to help local authorities decide which should pay for an individual’s care. I am happy to commit today that we will update the guidance by early 2009. I make just one caveat. During the revision exercise, it is possible that we will encounter wider issues that may impact on the ordinary residence rules that will be considered as part of the Green Paper review, but I shall look at them as part of that review and issue further guidance if necessary at that point.

I know that having better guidance in place will help to reduce the number of ordinary residence disputes. However, some will occur. They are currently referred to the Secretary of State to make a decision if the local authority cannot agree, but that is a long-drawn-out process. The amendment tabled by the noble Lord, Lord Low, is designed to deal with this problem by establishing a panel to make the determination instead of the Secretary of State. I fully agree with the principle of the amendment, but I think that we might be able to propose a more efficient solution which I am happy to commit to today.

We intend to bring forward proposals for resolving ordinary residence disputes more quickly by issuing directions using existing direction-making powers. Subject to views raised in a full consultation over the summer, the directions could include steps that local authorities should take to resolve the dispute initially and the point at which, if local authorities cannot resolve the dispute, it should be referred to the Secretary of State for a determination, as well as the documents that must be provided. We believe that it will be possible to issue agreed directions and have them in force later this year. We also reaffirm our commitment that the Secretary of State will aim to make a determination within three months of receiving all the papers from the local authorities involved. These proposals will ensure that the emphasis rightly remains on solving disputes at a local level, with referral to the Secretary of State as a last resort. I hope that in the light of those commitments the noble Baroness will withdraw her amendment.

I have listened carefully to the Minister as I suspected that she might say what she did, but I want to press her a bit further. The contribution of the noble Lord, Lord Walton of Detchant, was important in that it illustrated something that has not been mentioned but which is germane. I do not think that people move around the country because of the level of service that they think they are likely to get. The overwhelming reason for moving is to be nearer family and friends. Consequently a number of people move between England and Scotland. They do not move to Scotland because under the previous Administration there was a period of enlightenment during which personal care became free, but for other personal reasons.

The noble Baroness will be aware that there has long been a difficulty when people move because there is a difference between what local authorities and the NHS will pay for in Scotland and the situation which pertains in England. This matter was raised during the passage of the Health and Social Care Act 2001 and regulations were due to be brought forward, but they have not been. The situation has changed and become more complex because of the introduction of free personal care in England. Scottish authorities are not allowed to charge for personal care; English authorities are not allowed to charge for nursing care because of our rules here. I simply ask whether the Minister will address the issue in the time between the regulations coming forward and the consultation on the Green Paper. This affects quite a number of people, most of whom are readers of the Sunday Post, a DC Thomson newspaper; they are forever writing in and asking for advice on the matter.

The noble Baroness is right: this is a difficult problem and we will do our best to address it in the process of these discussions.

Before the noble Baroness, Lady Campbell, responds on the lead amendment in the group, perhaps I may respond to what the Minister said about my amendment. Her reply was most welcome and extremely positive and I thank the Minister and her officials very warmly for the work that they have done. A great deal of hard work has obviously gone into this issue in order to make such a positive response, which we all welcome.

I should like to pay tribute to the Voluntary Organisations Disability Group, the Local Government Association, the Association of Directors of Adult Social Services and all those who have worked very hard on seeking a solution to this problem. Before we finish on this group of amendments, can the Minister assure us that these organisations will be consulted at an early stage of implementation? They all have useful expertise to contribute. Ideally, of course, England and Wales would operate the same system. Will the Minister follow that up and use her influence to see whether we can get a parallel system in the Principality? Perhaps she will let us know in due course what progress her department is making in dealing with placements into Scotland.

However, whatever there is to be said about ironing out the additional details, I would like to leave with the Committee my warmest thanks and appreciation for the efforts of the Minister and her officials which have enabled her to make such a generous response to the amendment.

We will be consulting all the organisations concerned. They will make a huge contribution, I am sure, towards resolving this issue. We will be consulting the Welsh Assembly Government about the proposed changes and will be happy to work with them to establish a similar system in Wales if that is what the Welsh Ministers decide.

I thank the Minister for her reply and the noble Lords, Lord Walton and Lord Low, and the noble Baronesses, Lady Howarth and Lady Finlay, for their support. However, the Minister will not be surprised to hear that I am not entirely satisfied with her reply. She rightly informed us that last week the Government launched the deliberative debate on the future of social care. Indeed, I was asked by the Secretary of State to respond to the debate on the day. However, this is, I think, the seventh national deliberative debate or consultation on the future of social care in which I have been involved over the past 10 years. There is lots of consultation, lots of talk of culture change—gosh, I should like a bit of culture change—and lots of what local authorities should be doing under guidance, but, sadly, no movement whatever on the issue. Unless there is a move to address the issue with the urgency that I feel it now deserves, whether by means of legislation or Section 7 guidance, I give notice that I will return to it on Report, when I may seek the opinion of the House. It is time that we consulted, and we need to do something a little more substantive. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 209A not moved.]

Clause 141 [Power of Secretary of State to give financial assistance]:

On Question, whether Clause 141 shall stand part of the Bill?

At this stage of our deliberations I do not wish to take up a great deal of time on whether this group of clauses should stand part, which noble Lords will have worked out are probing amendments on which to base a debate. It is important to question the policy being moved forward in this part of the Bill. Noble Lords will know that these clauses give the NHS the power to fund the establishment of social enterprises to deliver health and social care services.

First, I put on the record that I do not have anything against social enterprises. I have not had any particular involvement with social enterprises and they are, in theory, a good thing. One problem I have with them is that it is not clear what is and is not a social enterprise. If noble Lords were to look in detail at Clause 142, which specifies what is to be considered a social enterprise for the purposes of this Bill, they might, like me, conclude that it is pretty well possible for any body or organisation to be one.

That leads me to my first concern. I have no doubt that there are third sector, voluntary sector or private sector bodies which can deliver some NHS services more efficiently and effectively than the NHS. My problem is that those organisations can do that principally because they are allowed to cherry-pick the cases they deal with. Noble Lords who have been here long enough will remember all the discussions we have had about ISTCs. However a social enterprise chooses to define itself, it has at its heart a business imperative. Although it may exist for good reason and to develop good causes and have an ethical heart, it has to be profitable. Albeit that the profits are not disbursed to shareholders, it has to make a profit. A social enterprise cannot indefinitely sustain bad risks, and that means that it cannot provide a universal service.

I seek to question the Government’s policy that lies behind this and to extract some indication of which parts of the NHS provision they think should be put out to other provision in this way, and whether they have considered that in doing so they must inevitably be concentrating bad risk further on those parts of the NHS that retain responsibility for direct provision. If there is one, can the Minister point me to the policy document that addresses those issues? I apologise to noble Lords, as this is a speciality interest, but it is very important for social policy.

I welcome this opportunity to explore this issue, and I will try to be brief in my remarks. I need to say from the outset that the noble Baroness and I look at this in different ways. In the view of the Government, this is about building a diverse marketplace for healthcare provision, so we start from a different point of view. Social enterprises, the voluntary sector and the private sector play a part in that. I am happy to make available as much information about what social enterprises do and what the definitions are as the Committee wants to have. I declare an interest as a former chair of the Social Enterprise Coalition, a position that I held for five years until last autumn. I can bore for Britain about social enterprises and am happy to do so, but I shall not do so now.

The benefits of social enterprises are very apparent. The Bank of England, the DTI, the Treasury and Office of the Third Sector have all undertaken research and published reports about this. They highlight the problems facing social enterprises and the wider third sector in accessing appropriate funding and finance. That is what these clauses seek to remedy. The lack of appropriate forms of finance available to social enterprises is a major barrier to the entry, sustainability and scalability of social enterprises. A survey by the DTI’s small business service showed that social enterprises were more likely to be discouraged from applying for finance than other small and medium-sized enterprises. The aim of these clauses is to allow the Secretary of State, where appropriate, to help social enterprises overcome those barriers and give financial support to qualifying bodies that deliver health and social care services. They allow the Secretary of State to fund qualifying bodies that deliver related services to healthcare and social providers.

I shall not go through each of the clauses saying what they do because that would probably not be appreciated by the Committee at this stage, but I am happy to write in detail to Members of the Committee about this. The intention is to enable us, in due course, to run a competition for an independent fund manager, possibly a social enterprise, and expert bodies to work with us to manage a social enterprise investment fund that will allow the further development of social enterprise and access a greater range of social investment expertise. The final approach will depend on developments over the next year and the review of the operation. The Secretary of State will use the power in Clause 147 to set up the company and the fund. These clauses will help us achieve our vision for the reform of health and social care—a vision that calls for a diverse range of providers, including social enterprises, so that we can increase choice for patients and drive up the quality and responsiveness of services.

I thank the noble Baroness for her answer. I appreciate that she was trying to be brief but her comments were very technical and specific, whereas the questions that I wished to pose concerned the wider strategic and political decisions.

I still think it is somewhat strange that a universal service funded by the taxpayer will have its most profitable part—which is what it would be called if it were in industry—hived off to other providers. I simply make the observation to the noble Baroness that most social enterprises, or things that call themselves social enterprises, that are successful are either commercial companies or organisations that have a massive amount of government funding, either local or national. I suggest to the noble Baroness that the transactional costs of moving services out of the NHS to independent providers—albeit social enterprises—have not been included in the calculation. However, perhaps she and I can discuss that another day. I simply wish to bring to general attention the fact that this provision remains in the Bill because it has had no attention so far.

Clause 141 agreed to.

Clauses 142 to 148 agreed to.

Clause 149 [National Information Governance Board for Health and Social Care]:

moved Amendment No. 210:

I have every sympathy with the intention behind these amendments, seeking as they do to ensure that people’s confidentiality is preserved. First, let me stress, as I have previously set out in a letter to noble Lords, that the National Information Governance Board, in conducting its role in relation to providing advice to organisations processing confidential personal information, will neither hold any clinical records, on paper or electronically, nor have access to any existing or new databases of patient information. In general, it would be unlawful for NHS or social care organisations to disclose to the board any confidential personal information. As a means of preventing the board from requesting confidential personal information, we think that Amendment No. 210 is unnecessary, as such a request would not be made and would not be complied with.

The Secretary of State is currently advised by the Patient Information Advisory Group, whose responsibilities are conferred by this Bill on the National Information Governance Board. The advisory group has established a framework that governs the use of patient information by researchers and others, ensuring sensitive data are held securely, are used in the public interest for specified purposes and are destroyed when no longer required by the recipient. Although the National Information Governance Board will determine how it will oversee these arrangements, it has indicated that it intends to work within the framework established by the advisory group that it will replace. The Academy of Medical Sciences has stated that these arrangements are essential for supporting research where obtaining consent or using anonymised information is not possible. We envisage an important role for the board in providing advice to the Secretary of State, the NHS and other bodies that process patient information, but we do not envisage any circumstances in which it would be necessary for the board itself to access personal information. Amendment No. 211, which seeks to prevent the National Information Governance Board from having access to patient information, does not therefore seem necessary to ensure that confidentiality is preserved.

It is also important to stress that the board will not be expected to produce advice on information governance issues simply at the behest of the Secretary of State and that it will also have powers to determine for itself when it is necessary to produce advice. For example, the Secretary of State might ask the board to provide the NHS with advice on, say, data security following a high-profile leak of personal information. Alternatively, the board may become aware of bad practice at a particular NHS organisation and think it appropriate to provide specific advice. Amendment No. 211 would remove the enhancement requested by those currently performing the future role of the National Information Governance Board.

I shall write in detail on the questions raised by the noble Earl about the thinking behind this because it would probably not be welcome if I went into that kind of detail at this point in the Committee. But I shall write and circulate the letter to the Committee.

I am grateful to the Minister for her reply, which in many ways I found reassuring. I look forward to receiving her letter in due course. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 211 not moved.]

Clause 149 agreed to.

Clauses 150 and 151 agreed to.

[Amendment No. 212 not moved.]

Clause 152 agreed to.

Schedule 14 agreed to.

Clause 153 agreed to.

Clause 154 [Orders and regulations: Parliamentary control]]:

moved Amendments Nos. 213 to 215:

moved Amendment No. 217:

moved Amendments Nos. 218 and 219:

moved Amendment No. 219A:

I completely agree with the noble Baroness that there should be clarity about the differing affects of the provisions of the Bill and I thank her for the amendments, which would insert a helpful table showing those differences. It would be unusual for this kind of explanatory table to be included in a Bill, but I have been advised that a similar table might be added to the Explanatory Notes and I undertake to do just that. Her suggestion is one from which we could learn when bringing Bills of this kind before Parliament. She is absolutely correct and I undertake to do my bit to help push this along. I hope that my response will satisfy the noble Baroness and allow her to withdraw her amendment.

I am delighted. I know that the Secretary of State for Wales and Welsh MPs know about this, so I will support it. On behalf of everyone in Wales, I say thank you formally. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 158 agreed to.

[Amendment No. 219B not moved.]

Schedule 15 [Repeals and revocations]:

moved Amendments Nos. 219C to 224:

moved Amendments Nos. 225 and 225A: