House of Lords
Monday, 1 February 2010.
Prayers—read by the Lord Bishop of Norwich.
To ask Her Majesty’s Government what is their response to the Consumers’ Association’s campaign to improve banking services for customers.
Everyone in the country will benefit from better banking services. The Government are taking action in the areas identified by Which?. For example, the Financial Services Authority has introduced new business conduct rules for retail banking with effect from 1 November 2009. A review of the sale and distribution of retail savings and investments is addressing structural problems in how products are sold. Work is under way to improve standards of complaints handling. These and other measures to improve the customer experience support the campaign of Which? and will help to restore trust in the banking service community.
I thank the Minister for that response. I assume that the Government will be present at or at least encourage the meeting on 4 February, when the public will be further consulted by Which?. In the mean time, are the Government convinced that the banks have at long last learnt a few lessons and will really try to help personal customers and SMEs come out of this recession?
I am sure that the Government will encourage the event on 4 February, and we are delighted to see Which? sponsoring this inquiry. I and other members of the Government will give evidence.
As for the need for the banks to focus on the needs of customers, I can do no better than to quote the noble Lord, Lord Roberts of Conwy, in his contribution last week, when he talked of the need to put the customer back at the centre of the banking relationship. The banks are beginning to appreciate this and understand that sustainable growth and strength is best achieved by meeting the needs of their business and private customers and moving away from esoterica and the creation of toxic instruments, which may have appealed to those with a strong mathematical background but were really quite distant from servicing the needs of the economy. The noble Lord, Lord Roberts of Conwy, had the right message for all banks: focus on the needs of your customers and, if you do that, your business will prosper.
The Minister expressed his support for Which?. Does that mean that when the Financial Services Bill comes to your Lordships' House, the Government will support the amendments that Which? is promoting on credit cards—for example, on unsolicited limit increases and to ensure that the most expensive debts are automatically paid off first, not last?
I thank the noble Lord, Lord Newby, for his question. I have not studied in detail the submissions of Which? in connection with that Bill, which will come to your Lordships' House fairly soon, but there are provisions in the Bill that deal with unsolicited credit cheques, which have been the bane of many people on low incomes, who are tempted to cash these cheques and move into debt in a way that is unwise. No doubt we will also look at details around the charging regime for credit and debit cards.
My Lords, Which? refers to the increasing and unhelpful consolidation of banks—some of which, of course, happened with the connivance of the Government when Lloyds took over HBOS. Do the Government accept that there is insufficient competition, which operates, as Which? claims, to the detriment of consumers?
The primary cause of the increased concentration of banking was of course the move to undermine the mutuals by encouraging them to demutualise, and I believe that that was done not by this Government but by a previous one. To be more constructive, though, as I know the noble Baroness would always wish me to be and as I always seek to be, we welcome the arrival of new competition in high street banking, as we have seen with the recent announcement from Virgin, with Tesco’s significant commitment to become a major force in retail banking—we know how successful that organisation can be when it puts its might behind commercial success—and with the disposals that are to be made by the Royal Bank of Scotland and Lloyds bank. We see an expectation of stronger competition. I agree with the noble Baroness, however, that it would be good for the economy if there were more competition in the banking sector, and the Government will make efforts to facilitate that.
Does my noble friend agree that for many people—particularly, but not exclusively, poor people—banking services can best be provided by the development of credit unions? Are the Government now happy, following the initiative that he took in writing to the British Bankers’ Association, that banks are adequately playing their role in promoting credit unions?
I share my noble friend’s great support for credit unions; he has devoted much time, energy and influence to promoting the case for growth in their activities. After a recent debate in this Chamber I made contact with the major banks and their trade association to encourage them to make further support available for credit unions, both through funding and through seconding employees so that they share knowledge and access to systems. I think that the banking sector would be wise to see this as an opportunity where, again, it can address some of the reputational and trust issues that the industry currently faces by showing a willingness to support credit unions, which do so much good in taking banking services to the previously unbanked.
How do the banks propose to support the interests of ordinary customers who cannot receive more than about 0.5 per cent on a deposit account?
Interest rates are set by the Monetary Policy Committee. Low interest rates are entirely right for supporting economic activity, but I appreciate that these rates are very low for those who depend upon their savings for their income in retirement. This will require imaginative solutions from the banking sector. We know that the retail banking interest rate market is very competitive—there are plenty of products on offer now with interest rates of over 4 per cent—but this morning, together with the shadow Chief Secretary, I attended a launch by the Stock Exchange of a new facility to make access to corporate bonds more attractive for retail savers. There need to be market-based solutions to that issue as well.
Taxation: Income Tax
To ask Her Majesty’s Government what assessment they have made of the number of those paying the higher rate of income tax who have left, or plan to leave, the United Kingdom tax jurisdiction in the current and next financial years.
In asking this Question, I declare an interest in that I am chief executive of London First.
The Government do not forecast emigration by tax band. We are committed to maintaining the competitiveness of the UK economy.
The Chancellor recently stated that the 50p top rate of income tax was not a matter of ideology. If in practice it will do little to increase tax revenue and instead may drive away many of those contributing the most to the Exchequer, what is it a matter of?
It is a matter of meeting the finance requirements at a time when the public sector has a very large deficit. The broadest shoulders must, quite rightly, bear the greatest burden. We are talking about less than 2 per cent of the population by income, a section which has enjoyed an increase in earnings at more than double the median rate over the past 10 years. However, it is not a commitment of ideology. This Government wish to see a reduction in the higher rate of taxation as soon as it makes sense from the point of view of prudent macroeconomic management.
My Lords, can the Minister indicate whether the first Minister, Secretary of State, et cetera, et cetera—the noble Lord, Lord Mandelson—was speaking for the whole Government when he said that the top rate of income tax at 50 per cent was going to be a temporary measure?
In her supplementary question the noble Baroness has already quoted the Chancellor of the Exchequer saying it is not a matter of ideology. I have also said that we wish to see a reduction in the top rate of taxation as soon as it makes economic sense. I suggest to the noble Lord, Lord Forsyth, that it is not possible to drive a wedge between the First Secretary, the Chancellor and myself on these matters: we are at one. That gives us greater credibility. It may well be a route that the Opposition Front Bench wants to try—although as I warned last week, we have to continue to listen to our wireless very carefully to keep up to date with Tory thinking on matters. We have seen this over the weekend: now we are looking forward not to an age of austerity but to one of slow and modest cuts in public expenditure.
My Lords, the Question refers to people who are leaving the country, possibly as a result of tax levels. It is normally suggested that people go to Switzerland, particularly if they are bankers. Has the Minister had any discussions with the Swiss authorities over their attitude towards high levels of remuneration, in particular bankers’ bonuses?
The Swiss taxpayer has of course had to pay a huge sum of money to support UBS after its collapse. One would need to be very careful about taking into one’s financial system those who were seeking to escape from good, effective, prudent supervision and regulation. From my own perspective, if there are people in the hedge fund community who find that the new regulatory climate is too hot, invasive and demanding in the UK and want to go elsewhere, that is their choice, but I would warn those who take them in of the menace they could represent.
My Lords, according to the World Economic Forum’s report on competitiveness, the UK was ranked fourth in terms of the lowest tax burden and tax evasion in 1997, and 84th in 2009-10. Does this have something to do with the Government’s policies of high taxation?
The UK has the lowest rate of corporate tax in the G7 at 28 per cent. The tax-to-GDP ratio is 36.1 per cent, which continues to be below the EU15 average and the G7 rate. At 18 per cent, the CGT rate is extremely low, and we continue to take measures through the tax system to encourage new business. I do not think the answer lies in taxation.
Does my noble friend recall that from the date the Labour Government were first elected, some years ago now, people threatened to leave the country if it happened? They threatened again to leave the country if the Government were re-elected and, when they were elected a third time, still threatened to leave. Is my noble friend aware, as I am, of the number of people who repeatedly made those threats who are still around—some of them on the Opposition Benches?
My noble friend’s observations resonate with my own: the people who often threaten to leave are also those who keep telling me how critically important it is to maintain confidence in the UK banking system, and then go on to tell me that the best way of doing that is to pay them large bonuses.
Will the Minister please tell me how many British pensioners are living abroad who now have their pensions paid in devalued sterling?
Excellent as my briefing book is, I am afraid that it does not extend that far. I will have to check the information with officials and write to the noble Lord, Lord Selsdon.
Does the Minister’s briefing book tell him what percentage of higher-rate taxpayers have to go abroad before the overall tax take drops with this higher rate rather than increases?
No, it does not, but we have made adjustments for the behavioural consequences of a new higher rate of taxation and accordingly have significantly reduced the anticipated tax take. We still believe that it will be beneficial. The precision of the answer that the noble Lord seeks clearly depends on the rates of income of the individual people who chose to go overseas. It is clear to me that very small numbers of people appear to have gone overseas as a consequence of the increase in the highest rate of taxation. I remind the House that it applies to less than 2 per cent of the working population.
My Lords, does the Minister recall the Conservative’s phrase “We’re all in this together”? Are the Conservative Benches now implying that some of us want to bale out instead?
The Minister cannot answer for the Conservative Benches.
I will allow the noble Lord's question to stand and make no further comment on “We’re all in this together”. Clearly, we need to resolve this because “We can't go on like this”.
Health: Herbal Medicine
To ask Her Majesty’s Government whether they will introduce a statutory registration system for the practice of herbal medicine in the United Kingdom before April 2011; and what assessment they have made of the consequences of not doing so.
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as patron of the British Register of Chinese Herbal Medicine.
My Lords, we recently consulted on whether and if so how to regulate herbal medicine practitioners. We have received more than 6,000 responses to the consultation. These are currently being analysed and a report is expected to be with Ministers by March 2010.
We are aware of the requirement for the UK to comply with European directive 2004/24/EC, including the end of the transitional period at 30 April 2011, and we will take this into account in reaching our decision.
My Lords, I am most grateful to the noble Baroness for that reply, which suggests that she is doing her best to be helpful. However, are the Government aware that some 25 per cent of the British population use over-the-counter herbal medicines and that some 5 million people visit a practitioner? Do the Government accept that, if they do not fulfil their promise made as long ago as 2001 to bring in statutory regulation by April next year, the whole of this activity will be forced underground, the public will be at risk and a large number of small businesses will fail?
The noble Lord is right to point to the dangers if we do or do not regulate. If we do not go down the route of statutory regulation, we will consider creating a national scheme under the derogation of medicine legislation, which would allow practitioners to continue while we resolve this issue. If we do regulate, the noble Lord knows that it will take time for those regulations to be laid because this is a complex area. We would have to use that derogation as well. We are well aware of the timescale and the risks involved.
I declare an interest as having chaired the House of Lords Select Committee inquiry into complementary and alternative medicine some years ago. Does the Minister accept that some of the most powerful and effective remedies that are used regularly in medicine today are of herbal origin? However, certain remedies sold over the counter have been shown to be dangerous. For example, some traditional Chinese herb preparations contain a large number of different items, including on occasions aristolochia, which has been shown to be a seriously dangerous preparation that can cause serious renal damage. Is it not therefore in the public interest to introduce statutory regulation in order to be sure that practitioners of herbal medicine have been properly trained in scientific method and ensure that those who have not had such training can no longer practise?
My Lords, the noble Lord points to the important reason why we must reach a decision on this matter and take action. These practitioners pose a greater risk than other complementary therapies because they involve skin piercing and so on. Acupuncture, herbal medicine and traditional Chinese medicine are the alternative medicines under consideration here. The noble Lord is right that central to our decision is how we protect the public from poor practice and use this as an important lever for driving up the standards of practice.
My Lords, I declare my interest as chair of the Council for Healthcare Regulatory Excellence, which promotes right-touch regulation. Does my noble friend agree that right-touch regulation must always focus on public protection and patient safety, not on promoting the interests of practitioners from whatever area?
My Lords, my noble friend is absolutely right. We made clear in our 2007 White Paper, Trust, assurance and safety, that public protection should be the overriding reason for professional regulation of every sort. This is about protecting the public from poor practice. As I have said, this is the best way of protecting the public from unscrupulous and poorly practising practitioners. Statutory regulation is not the only way of doing this and it may not be the most appropriate. In the next month or so, Ministers need to decide whether we go down the statutory route or look for some other way to deliver this protection.
My Lords, I declare an interest as president of the Parliamentary Group for Integrated and Complementary Healthcare and as patron of the Foundation into Research into Traditional Chinese Medicine. Is the Minister aware of the devastating effect on the herbal sector were statutory regulation not to occur by the time that the European directive on traditional herbal medicinal products becomes fully implemented in April 2011?
My Lords, I specifically asked the department what will happen in April 2011. The public will still be able to access over-the-counter herbal medicine. Where herbal practitioners prepare unlicensed herbal remedies to meet individual patient needs, they will not be affected by the European herbals directive. The noble Lord rightly points out that where practitioners buy in manufactured herbal medicines and products, as with any other medicine they will require the appropriate product licence. Transitional protection afforded to such manufactured herbal medicines comes under the directive, which runs out in April 2011. After that, it would not be lawful for those practitioners to commission manufactured unlicensed herbal medicine. However—this is the point I made to the noble Lord, Lord Pearson of Rannoch—we are considering the possibility of creating a national scheme under a derogation in medicines legislation that could allow practitioners to continue to commission unlicensed manufactured herbal medicine.
My Lords, how many practitioners are likely to need to be registered and what will be the cost of registering them?
My Lords, I am afraid I do not have those figures. The number of manufacturers who are third-party practitioners is relatively small, but they would be severely affected were we not to solve this problem by April of next year.
My Lords, I declare an interest as a member of the Foundation for Integrated Health. Do the Government recognise that accurate diagnosis is absolutely key to any kind of prescribing or intervention? They would do well to look at models of the practice of herbal medicine in other parts of Europe.
My Lords, the noble Baroness raises an important point. The department is aware of what is happening in other parts of Europe. The UK has a well developed alternative medical sector. I understand that it is bigger than anywhere else in Europe. We have specific issues to resolve.
To ask Her Majesty’s Government what action they will take on the recommendations of Lord Justice Jackson’s Review of Civil Litigation Costs.
My Lords, we are very grateful to Lord Justice Jackson for his remarkable report, which makes significant recommendations for reducing costs in the civil justice system. We are now actively assessing the implications of Sir Rupert’s proposals and how they should be taken forward. We will work with the senior judiciary and others to consider the options for reform and we will set out a more detailed timetable once we have completed our initial analysis.
I thank my noble friend for that reply. I recognise that it is too early for the Government to make a definitive decision, but does he recognise that there are serious and fundamental flaws in the present situation, particularly with regard to costs,? Too often, costs are much too high and constitute a real deterrent to many, especially claimants. Does he recognise that?
Indeed we do. There is a balance to be struck in ensuring both that appropriate claims can be brought to justice and that costs are proportionate. Sir Rupert’s report suggests that those objectives have got rather out of balance, with some costs becoming disproportionate. We will seek to ensure a better balance as we consider how to take the recommendations forward. My noble friend is right to say that, in some cases, claimants might currently be deterred from bringing claims because of the level of the defendant’s costs that they might have to pay if they lose the action. The Jackson report deals with this in a number of ways, such as through judicial cost management. We are considering how these should be taken forward.
Does the Minister accept that the rule of law in any democracy is meaningless without access to justice and that the proposed cuts to civil litigation funding by the Government will deny many people access to justice?
I do not recognise that at all as being the true position. If the noble Lord is referring to cuts in legal aid, let me say to him that there are some very marginal cuts in civil justice on the books, but we are determined to make sure that the vital part of legal aid, which is spent on social welfare law—giving legal advice on debt, housing and employment matters—is maintained, particularly at a time of recession.
My Lords, Lord Justice Jackson specifically indicated that claimants for personal injury incur undue deterrence when seeking to pursue their claims in the courts because of the rule that the loser pays the winner’s costs, which may be considerable in those cases. Does my noble friend agree with the Jackson report that, if the loser is the claimant, that rule should no longer apply?
My Lords, Sir Rupert has made various recommendations concerning costs, particularly about what is described as qualified one-way cost shifting in cases of this sort. That expression means that a defendant will always pay the costs of a successful claimant but a losing claimant will pay only such of the defendant’s costs as is reasonable for him to pay in the circumstances of the case, including the financial resources of the parties and their conduct in the dispute. We are well aware of Sir Rupert’s recommendation for a shift in those types of costs. I am afraid that, again, we have to look in detail at what he is proposing and its interaction with other important recommendations. We will also have to consider what further consultation may be necessary on that point.
My Lords, can the Minister say how long he anticipates that the initial consideration, which I fully accept is required, will take? Of course, how long it takes depends on what arrangements are being made to consider the extensive and generally welcome recommendations made by Lord Justice Jackson. I hope that sufficient resources will be allocated to this. I disclose my interest as the author of a report that bore the title Access to Justice. I recall that considerable resources were required before the noble and learned Lord, Lord Irvine, whom I see in his place, was prepared to give final clearance to my recommendations.
My Lords, if I may say so, the two people who have been most involved in improving our civil justice system over the past 10 or 15 years are both in the Chamber—the noble and learned Lord, Lord Woolf, who has just spoken, and my noble and learned friend Lord Irvine of Lairg. Between them, they have succeeded in making our civil justice system infinitely better than it was. However, it is 10 years since the Access to Justice Act was passed and it is only right that we should look to see whether improvements can be made. Sir Rupert has found that there are some that can be made.
As for timing, I have to be careful because some of Sir Rupert’s suggestions require a great deal of analysis. One problem is that he saw his report as a package—and so may want all of it implemented or none of it implemented—but some parts of it could perhaps be implemented earlier. We have to decide between those two difficult choices.
My Lords, may I for once offer my congratulations to the Ministry of Justice on offering full consideration of this report, which came out only two weeks ago and needs a great deal of consultation? May I recommend that the Minister passes on such suggestions to his colleagues in the Department of Health, who might have done the same with their Personal Care at Home Bill?
For a moment I thought the noble Lord was making a serious point about the Jackson report, but I am afraid I was disappointed by the end.
My Lords, alas we have now reached 30 minutes.
Arrangement of Business
My Lords, with the leave of the House, my noble friend Lady Kinnock of Holyhead will repeat the Statement entitled “Afghanistan Conference and Yemen Meeting” immediately after the speech of the right reverend Prelate the Bishop of Norwich on the Second Reading of the Personal Care at Home Bill.
Criminal Justice Act 2003 (Mandatory Life Sentence: Determination of Minimum Term) Order 2010
Motion to Approve
That the draft order laid before the House on 25 November 2009 be approved.
Relevant document: First Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 26 January.
Representation of the People (Northern Ireland) (Amendment) Regulations 2010
Motion to Approve
That the draft regulations laid before the House on 2 December 2009 be approved.
Relevant document: 2nd Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 26 January.
National Security Strategy
That the Commons message of 13 January be considered and that a Select Committee of ten members be appointed to join with the Committee appointed by the Commons as the Joint Committee on the National Security Strategy, to consider the National Security Strategy;
That the following members be appointed to the Committee:
L Cope of Berkeley, L Fellowes, L Foulkes of Cumnock, L Harris of Haringey, L Lee of Trafford, B Manningham-Buller, B Ramsay of Cartvale, L Sterling of Plaistow, B Symons of Vernham Dean, L Waldegrave of North Hill;
That the Committee have power to agree with the Committee appointed by the Commons in the appointment of a Chairman;
That the Committee have power to send for persons, papers and records;
That the Committee have power to adjourn from place to place in the United Kingdom;
That the Committee have leave to report from time to time;
That the reports of the Committee shall be printed, regardless of any adjournment of the House;
That the Committee have power to appoint specialist advisers;
That the evidence taken by the Committee shall, if the Committee so wishes, be published; and
That the Committee meet with the Committee appointed by the Commons on Tuesday 9 February at 5.30 pm in Committee Room 2A.
Motion agreed, and a message was sent to the Commons.
Live Music Bill [HL]
Order of Commitment Discharged
That the order of commitment be discharged.
My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Personal Care at Home Bill
That the Bill be read a second time.
My Lords, this is a small Bill with one substantive clause, but it will have great significance for thousands of the most vulnerable adults and older people. I want to start by considering who this Bill is intended to support.
For those with the highest care needs, this Bill helps to end the lottery of personal care charges. It enables us to give them the peace of mind that their personal care will be provided free of charge, wherever they live. The Bill means that those who have been through a significant incident—an operation, a bereavement, an accident—will be encouraged to receive intensive support to prevent their needs deteriorating. It will enable them to be helped to remain healthy and independent, in their own homes if they wish, and to extend their quality of life and years of life.
It is important to set out what the Bill does. Its substantive clause will amend the Community Care (Delayed Discharges etc.) Act 2003 so that the Secretary of State is enabled, by regulations, to require local authorities to provide personal care free of charge indefinitely to people with the highest care needs living at home. The criteria for defining those with highest care needs will be set out in regulations, with further detailed workings of the scheme to be placed in statutory guidance. These regulations are intended to come into force from October 2010.
We have had and continue to have a wide-ranging discussion about the Bill. A consultation process is taking place. A wide range of stakeholders have joined the debate and added their support to the Bill, and are working with us on the best way to implement it. We issued a consultation document in November which outlined the principles of our proposals. This week we intend to make available a working draft of the regulations, as they might look when laid, based on these proposals. These will assist stakeholders in their understanding of the details of the scheme. The draft regulations are subject to further change in the light of the stakeholder responses as we continue with the consultation process until the end of February. The consultation will close on 23 February, at which point the Government will analyse and consider those responses. We expect the final regulations to be laid soon after Royal Assent.
The NHS was created to end the unfairness that people with the greatest needs faced the highest costs, and that people who had the least were in danger of going without their needs being met at all. Today we all agree that this unfairness exists in social care. If you develop dementia—rather than cancer or heart disease—in old age, you are yet to find the freedom from fear that was promised by the NHS. Reform of care and support is the only fiscally responsible strategy. Failure to reform will lead to huge unmet need and pressure on public finances, within both the NHS and local government for years to come.
We all know that the demographic pressures are rising. Year by year, more people will come into a care system which cannot fully cater for their needs. When the NHS was created there were eight working adults for every person retiring. Today there are four. By 2050 that figure will have fallen to just two. We can expect that by 2026 there will be 1.7 million more adults who need care and support. One in five of us will need care that costs less than £1,000 during retirement. One in five will need care that costs more than £50,000 and, in the worst cases, it could exceed £200,000. We cannot predict our risk, so it is hard to protect ourselves against it. The need for bold, far-reaching reform is undeniable. That is why we have proposed to create a national care service, but this is a major reform and, while it is essential, the earliest possible date that this can be implemented is 2014.
The Bill will enable us to do something—the right thing—now: to give real help to some of those with the highest care needs, and to take steps towards a greater reform. These steps follow the progress that has already been made in recent years with respect to social care. The Bill will build on that progress to create an unstoppable momentum as we move towards the greater reform of social care that is so clearly needed. For those who point to the rising costs of free personal care in Scotland, I point out that the situation there is not comparable to what we are proposing here. The Bill is a step towards greater reform of social care, but is also targeted at helping only those with the highest care needs.
The first aim of the Bill is immediate action for 280,000 people with the highest care needs, including those with dementia or Parkinson’s disease. Many of these people will already have been paying large amounts out of their own pockets for a number of years to fund the cost of their care. Currently, an estimated 80,000 older people in the highest need receive free personal care, but 40,000 pay part of their costs and 50,000 pay all their costs. Among younger adults, an estimated 90,000 receive free care, while 20,000 pay all or part of their own costs. The Bill will help to end this lottery and remove the enormous and unfair financial burden on these people and their families.
Take the example of an 89 year-old woman from Lowton, near Warrington, with very high personal care needs as part of her overall care package. She has a number of visits during the day and one later in the evening, with a care worker attending all visits to ensure safe moving and handling. The overall cost of the care package is extensive. Under measures enabled by the Bill, her personal care—the greatest proportion of that care, estimated at 85 per cent of home community care costs—will be free of charge.
Currently, charges for all personal care at home are potentially means-tested, whereby local councils can determine the amount that people have to pay, in accordance with national guidelines. Community care assessments are carried out to determine the level of a person’s needs, based on the criteria laid out in guidance. Despite this, levels of support and charging vary widely across the country. The Bill is about trying to create a fairer system by continuing to provide support that people may use flexibly to support them in the way they want. The Bill does not in itself contain any provisions related to direct payments because it does not need to. The existing legislation ensures that this flexibility of support can continue in relation to free personal care at home, if that is what people want.
We want to ensure that support goes to people who need it most. Those facing the greatest burden are often those on middle incomes who have savings which will last just a year or two. While these people who are currently funding their own care have relatively high incomes for their age group, they are by no means among the most well off in society. Indeed, the main beneficiaries will be those on middle and below-middle incomes. Typically, the people who require personal care services are likely to be more than 75 years old, live alone and be generally in poorer health. This measure is not just compassionate but progressive and redistributive.
The second feature of the Bill is to encourage reablement support to help another 130,000 people after a fall, when their health deteriorates, or following a period in hospital. Reablement may mean physiotherapy and personal support to help people learn how to perform daily tasks again after an illness or injury. This could, in some cases, mean using technology such as alarms or electric pill dispensers to improve safety. Often such measures have significant outcomes. In other cases, there could be adaptations to make a person’s home more suitable for them to live there comfortably. In some places this work is already going on and showing its worth.
I give an example from the Wirral, where a lead on reablement is being taken. A 77 year-old woman had been dependent on carers for two years when she was admitted to hospital for aortic valve surgery. She had become used to doing very little for herself. She was sleeping downstairs, and used a bowl of water in the lounge and a commode to meet her personal care needs. On discharge, she received three visits a day from the home assessment and reablement team to help with her personal care. They helped her to practise using the stairs and encouraged her to undertake daily tasks such as opening the curtains, putting on the washing and making her own lunch. Over a six-week period, the visits gradually decreased and she is now living independently with no interventions from social services. That intensive support has absolutely paid its way.
In this way, the Bill aims to enable people to retain their independence and reduce costs, with potentially beneficial effects on their health. The Bill will ensure support for people to remain economically active by enabling the provision of support and control which families and carers need to balance work and their caring role. As we know, it is the carers who are often the unsung heroes. As someone’s mobility and general health deteriorates, it is they who step in to offer greater and greater support.
We want to build on the invaluable work on prevention and intervention that many councils have already begun to support people to live independently in the community. This is a vital part of these proposals. It must rely on sensible and effective partnership and decision-making between local authorities, by people who need care services and with their care partners. The solutions must be dignified and not imposed insensitively.
The research indicates that investment in interventions across the partnerships for older people pilot programme has produced an average £1.22 saving in emergency bed days for every £1 spent. These projected efficiency gains are on top of the £1 of additional service benefit from addressing older people’s presenting needs. By extending a hand to those with lower-level needs, we can help to reduce isolation and keep people active and, by doing so, we can prevent people slipping to the point where more intensive care and support is required. This will reduce the costs of care for individuals, including those who continue to fund their own care. It will help people to avoid hospital admissions—and, perhaps, a premature move to residential care—and to stay independent and well in their own homes.
I turn to funding. There has been a great deal of speculation and misinformation about this Bill, particularly on funding. I should like to take this opportunity to explain our approach. We estimate that the measures will cost £670 million in the first full year, £240 million of which will be provided from the Department of Health’s central budget—not from the NHS—and the rest by local government efficiencies. We know, as many of your Lordships will, that the Association of Directors of Adult Social Services, or ADASS, has some concerns about that overall figure and has recently conducted a survey. The response that it received was from fewer than half of its members. We continue to have confidence in our estimated figures; perhaps I might set out why.
First, our figures were the result of independent analysis undertaken by the Personal Social Services Research Unit at the London School of Economics. To reach those estimates, detailed modelling was undertaken across the population to try and estimate those people who are currently not receiving services. We have always been clear that it is an estimate and that, naturally, there have to be some inherent uncertainties with that. Indeed, in some areas there may be less of a cost impact than we are estimating; in other words, we have erred on the side of caution. For example, the ADASS survey shows that estimated hourly costs of care are lower than those that we have used. We also believe that there will be some reduced demand as a result of the reablement services that we are putting in place.
Along with the scope for further efficiency gains, this will be considered as part of the normal spending review process. It is right that councils should play their part alongside central government to help deliver this commitment to free personal care, and they have been widely involved in the consultation and stakeholder events which have so far accompanied the Bill. I reiterate the point made by my right honourable friend the Secretary of State for Health in another place: it is completely incorrect to say that any of that money is coming from cutting disability benefits, nor is it coming from the cancer research budget. I should like to put that scaremongering to bed right now.
The Bill is about putting more money into the social care system now. The funding is much needed, prudent and targeted at those with the highest care needs, helping them to live at home for longer, which is where the great majority of them tell us that they want to be.
I am sorry to interrupt the noble Baroness, but I may have misheard her. Could she clarify what she said about the central government contribution in the first full year? I think that she said it was £240 million and that she meant £420 million.
The noble Earl is right; it is £420 million. I spoke that figure back to front, and £420 million will be provided from the Department of Health.
The Bill recognises that those with the greatest needs cannot wait. This Bill is not the whole answer, but it is a bold first step and I commend it to the House.
My Lords, this Bill has given me much to think about, which is why I have added my name to the speakers list for today’s Second Reading debate. I had intended to listen to other speakers and welcome the wide variety of points that had been raised, but speaking so early in the debate I am not in a position to do that. It was helpful to meet the Minister and her team last week to discuss the Bill, but that left me with a number of concerns. I intend to present my own personal view, as I have had some relevant experience through local and regional government. I declare a personal interest in that my eldest daughter was diagnosed with multiple sclerosis 28 years ago, so she has a long-term disability.
It is easy to welcome the concept of free personal care at home, and I do so without hesitation. Everyone is in favour of motherhood and apple pie, so who could oppose the idea behind this Bill? To take any other view would be opposing kindness and humanity. What concerns me is that this is being brought forward in an ill considered way and that the money will simply not be available to honour the promises of the Bill and the expectations that are being raised for the people who stand to benefit. The timing and speed of the Bill are also unfortunate. Bringing it forward at the last moment of this Government raises my suspicions that it is just electioneering.
A long time ago, I was chairman of social services at Westminster City Council and I represented the Greater London Council on the Association of Metropolitan Authorities’ Social Services Committee. The relevance of the Social Services Committee, in particular, was that it coincided with the first disabled persons’ legislation, championed and introduced by Alf Morris MP, now a Member of your Lordships’ House. We were faced with suddenly having to find all the people who would qualify for help under the new Act. It was clearly impossible for us to achieve this 100 per cent at once, as we had neither the staff nor the means. As a first move, we set out to survey 10 per cent of our residents, and during this time many people previously not known to us came forward. It took years and a large part of our budget even to begin the process. It is no different now. Ensuring that those who need help are the people who get it is a perennial problem.
Today, many of the people who would benefit from the Bill would be known to social services, but not all. Those meeting their own costs at present may have been assessed years ago and their cases will have been filed away after it was decided that they did not qualify for free care. It will be a time-consuming process to trace these records, which could be long out of date. The cost for local authorities simply of determining exactly who is to be covered under the Bill will be high. I do not underestimate the work involved and I am concerned that local authorities’ budgets are already hard-pressed. Sadly, I am concerned that those who stand to benefit from the Bill will be let down when their expectations are not met.
Members of the House will have had briefings from many different groups which will be closely involved in implementing the law. They mostly seem to welcome the concept, as I do, but they all seem to raise different concerns. I shall quote some of them. Age Concern says:
“We are concerned whether local authorities will be able to achieve a further £250 million efficiency savings without any detriment to services for other people”.
I heard on the radio today that it is believed that the cost will be double that estimate. The Royal College of Nursing seeks,
“assurances that this potentially temporary measure will not adversely impact on the plans for longer-term reform which all parties recognise is needed”.
On funding, the royal college asks,
“which Department of Health budgets the contribution needed to fund the measures in the Bill will come from”,
and adds that,
“there is still no clear indication where the remainder of the money needed will be found”.
“What will happen if local authorities, whose social care budgets are already under significant pressure, cannot find their share of the budget needed to deliver the Bill’s commitments?”.
It also says:
“The RCN is particularly concerned about the possibility of unintended consequences caused by the proposed joint funding arrangements”.
Again, I recall very clearly from both my social services and my health experience that joint funding was one of the most difficult things ever on which to get agreement.
The Equal Opportunities Commission puts forward 27 points. I shall not go through them all but point 6 states:
“The Commission has some concerns about the practical issues that might arise”,
“It is difficult to see how local authorities could meet the cost of this measure from efficiency savings, without any detriment to social care services and other local services”.
It is also concerned about reablement, regarding it as unfair that,
“making free personal care conditional on the take-up of a reablement package raise”—
I think it should be “raises”, but I am quoting from its text, so I am using the word “raise”—
“serious inequity issues”.
Reablement is clearly a new word, as whenever I put that word into my computer, it rejects it as incorrect.
In its point 12, the Equal Opportunities Commission urges the Government to ensure that the forthcoming White Paper covers,
“how it will be properly funded”.
I agree with its point 17, which states that,
“some fundamentally hard decisions need to be made to achieve long-term solutions, and they can only be made through debate and consensus”.
That is what I think is essential: debate and consensus. Why this rush now after so many years of this Government?
I am less happy about the EOC’s point 23. It wants to ensure that,
“persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement”.
I agree that it should be on an equal basis with others, but what exactly does that mean? Most people do not have unlimited choice as to where they live, so perhaps that phrase does not mean too much. People are constrained in their choice, often by their personal income and, sometimes by access to work or other reasons. Many people like to stay where they are, where they are familiar with their surroundings or have happy memories. Some of those people are now living alone in large properties which are not really suited to their needs. In some cases, the properties cannot have the necessary adaptations made to make them practical for a person in need of personal care.
In London, in particular, there is a desperate shortage of family-sized social housing, and many, particularly older people, continue to live in large properties with very high costs for heating and maintenance. I suppose we could consider such persons as the equivalent of “bed blockers” in National Health Service hospitals. It is not easy to face moving after decades in a property, but it must be in the local authority’s and the community’s interest to provide suitably sized units adapted for disabled living or personal care, and ideally with warden supervision. I believe that many people would be willing to move if such alternatives were available. That would free up some of those large homes for families who desperately need them. I have met a number of people who are delighted with how much easier living is when the accommodation is suited to their needs. For those living alone, it is very reassuring to have someone check daily that you are all right.
In Australia, I saw a number of properties where an individual could buy a lifetime occupancy of one such property in a sheltered community, which was bought back by the charity or other owning body on the death of the occupant at an agreed value according to the number of years of occupancy. There was quite a waiting list for those homes. There were similar schemes for rental homes, but some people who have owned their home are very reluctant to go somewhere where they feel that they would lose that ownership. I thought that that scheme was a good one.
To cite Carers UK,
“ this is the first time that people who have savings or assets such as a house, will be entitled to free care from the state … at a cost of £670 million per year”.
Carers UK has called for greater clarity about the expectations placed on carers, as it believes that in many cases the assessment process makes assumptions about carers' availability and willingness to provide care. It makes the point that,
“it is also important that local authorities do not now focus on personal care needs to the exclusion of the wider needs of the person receiving care and their family”.
I frequently meet people whose family members are now in receipt of care. Although they appreciate the help that they are receiving, the often elderly person complains that their carer comes at six o'clock in the evening to help them get to bed. They really want to stay up until they have seen the 10 o'clock news, they have no wish to go to bed so early, but it is the only way to fit them into the crowded schedule of visits that the carer has each evening. A 24-hour service will be necessary to provide care to suit all receivers of care. If it is intended to help people to live in their homes in the way they wish to, and to satisfy the new extra demand, it will be necessary to have a large number of extra carers and nurses. How and when will these be trained? Who will meet these costs and how long will the training take?
Carers UK asks,
“will the process of assessment ensure that all people who need assistance with personal care receive the value of this care—either paid through a direct payment or through the delivery of free care—even if the family currently provides this care, but needs assistance with other services?”.
The issue of assessment processes is raised by many organisations in terms of time, reliability and regular updates. It seems that even cases currently receiving benefit will have to be reassessed. How will the Government help local authorities to limit the number of times reassessment will be required? There are so many questions that can be asked and so much need to go into these matters more thoroughly. I have quoted briefly from organisations that have sent me their comments and I am sure other speakers will pick up different points from those briefings. One day in the Commons has not been enough to consider the Bill properly. I hope your Lordships will ensure that it gets the full and careful consideration that is essential.
My Lords, I am pleased to contribute to the debate on this short but extremely significant Bill. Free personal care at home: who in their right mind would not support this fundamental principle? Indeed, free personal care at the point of delivery has been at the heart of independent living campaigns for more than 30 years.
I declare a personal interest: without state-funded personal care support I certainly would not be here with you today. Moreover, I could potentially benefit from the Bill’s provisions directly—and, boy, I could do with the cash that I currently hand over in charges, which are massive.
However, it is not about me today. For me, personal care is not only about getting up in the morning and going to bed at night; it is about my basic human right to live with dignity and equality among my peers—and even my noble Peers. Thousands of people require intense personal care to stay alive, in exactly the same way as they need healthcare. For people like us they are both equally vital to existence. When I am being put on my ventilator or assisted when I am choking, I do not consider whether it is a health or personal care need; it is just essential human support for me. I have never understood why one is free and the other is charged for; after all, we have no choice to say, “No thanks, I’ll manage without”. Often, to be severely disabled is to be poor, as we are expected to pay for the privilege of doing all the things that most people never even think about—eating, popping to the loo, scratching your nose and even breathing. Does any other noble Lord consider those acts every day? I do, probably about 10 or 12 times a day.
We should welcome the principle in the Bill before we begin to criticise it because it is good and it is right. What else should we welcome—beyond, of course, the attractive free element? I am still thinking about what I might spend the extra cash on. The Bill demonstrates the Government’s commitment to enabling people with high support needs to stay in their own homes. It is hard enough dealing with advanced motor neurone disease or Alzheimer’s without having to leave the familiar surroundings of your own home and to move to a new and strange environment to get the care you need.
Another reason I welcome the Bill is that it will make it easier for the NHS and local authorities to work together. Again, that line between health and social care really does not exist. Partnership working between health and local authorities has been a policy objective for many years under Governments of both persuasions, but means-testing for social care has remained the elephant in the room. It is an obstacle to joint provision and integrated working. For the group covered by this Bill, this barrier can begin to be removed and that is to be welcomed. Nevertheless, partnership has to involve a third party. May I ask the Minister what guidance or regulations will be put in place to make sure that such an integrated assessment will include service users? There is a strong history of user involvement, choice and control in social care assessments which has yet to take off in healthcare.
I will now move on to a few concerns. From my reading of the Bill’s intent, people with critical levels of need will be divided into two groups: the critical and the critical-plus. I am still deciding what group I am in. Perhaps noble Lords might advise me. The second group will receive free care. The other may be charged for similar levels of support. There is great potential for discrimination to occur here between almost identical groups. Will the Minister seek advice from the Equality and Human Rights Commission on whether this approach contains an element of discrimination?
As former chair of the Social Care Institute for Excellence and co-founder of the National Centre for Independent Living, I am also concerned that part of the assessment for free personal care will depend on how many activities of daily life you cannot manage without help. The institute and the national centre have been major supporters of the Government’s policies for independence and personalisation. They focus on the things disabled and older people can do and encourage them to be as independent as possible. This Bill, I am afraid, puts a financial premium on proving how incapable you are. I call this the “deficit model” because it creates perverse incentives to present as more dependent in order to be eligible for rationed services.
I am now going to hand over to the noble Lord, Lord Wright, as agreed by the usual channels.
At this point, Lord Wright of Richmond continued the speech for Baroness Campbell of Surbiton.
Last year when I was a commissioner at the EHRC, I helped draft its policy statement on social care. We called it From Safety Net to Springboard and argued that the deficit model of assessment should be abandoned and replaced by one which promoted independence and autonomy for everyone in the caring relationship. We proposed assessments for support, which meant that carers and disabled people were no longer caught in a social-care safety net of dependency, but instead given support which promoted active citizenship, like working, volunteering, interacting socially, and so on. I do not think the springboard formula is reflected in this Bill.
However, the Minister may say that the Government have anticipated the problem and plan to offer people with the highest levels of need a period of reablement before assessing their eligibility for free care. This may help them regain abilities that they have lost, but the formula would take them out of the group who would qualify for free care. What evidence do the Government have that shows that reablement works in these circumstances? If you fail to reable enough, would you have to repeat the programme? Would reablement monitors be appointed to make sure that the people with the highest levels of need were trying hard enough to regain their lost abilities? Perhaps the Minister could clear the fog on this one. Most people with progressive conditions such as motor neurone disease or my own condition are going only one way. Are we to be seen as reablement failures?
I have one final question for the Minister before ending—some may call it my hobby-horse. The Government say that there will be a standardised assessment tool to assess eligibility for the new entitlement. Should I assume from this that the care package will be fully portable, following the recipient wherever they decide to live?
I welcome some of the fundamental principles behind the Bill, but, for now, it throws up more questions than answers.
My Lords, we must be the first generation in human history in which a substantial number of people retire and then find themselves fully occupied both babysitting grandchildren and looking after even older parents. Last week, a man who is now 70 and well retired talked with me about the care of his mother in her late 90s, who was still in her own home and who valued her independence, but whose needs he was anxious about his own capacity to meet. There is a good side to this, of course, since those with no one to care for do not always feel liberated as a result, but caring for those in the greatest need can, as we all know, be emotionally, physically and spiritually exhausting. Yet people do it, frequently out of love and loyalty even more than duty. Those with advanced dementia or Alzheimer's, Parkinson's or motor neurone disease often become needier very gradually. That seems to be why their carers often do not receive the right degree of support; they often simply do more gradually. Then they find it impossible and the person being cared for has to give up the simple but effective therapy which comes from being at home. The distressing final year of my father's life might have been ameliorated if this Bill had been in place. I therefore welcome it, although not simply through personal experience.
The moral status of any society must be judged by the way in which it treats its weakest and most vulnerable members. In ancient Israel, the care given to widows and orphans was unusual, but was derived from a belief that every human being was made in the image and likeness of God. In our own age, it is the way in which we care for those least able to help themselves, so that they can have some quality of life, which is the test of our common humanity. The people who care for those in greatest need must have some quality of life as well. Who could dissent from the direction of travel of this Bill? The moving testimony of the noble Baroness, Lady Campbell of Surbiton, illustrated why it would be cruel to those and their carers whose hopes have been raised by the publication of the Bill to reject its provisions.
Why then can I raise only two cheers for the Bill? I think that it is because someone with a single, exaggerated virtue in their personality often seems lop-sided; and there is definitely something lop-sided about the Bill. Others will be able to judge much better than me whether the financial estimates add up or the efficiency savings are achievable without harming some other group of vulnerable individuals. Even if we get a more precise definition from the Government about the qualifying criteria for assistance and how those needing significant help are defined, there can still be perverse consequences arising from this Bill’s exaggerated virtue.
It is a virtue to encourage people to remain living at home and to receive personal care in that environment. It is what most people want and what I would want. They often want it because it enables them to remain living with spouses or other close relatives. Receiving the cost of such care is not simply a financial blessing. It can be a strong incentive, perhaps even an inducement, to receive care at home. Faced with the choice between receiving free personal care at home or having to pay for such services somewhere else, who would not opt for the former? In those cases where carers, often close relatives, may really have to make that choice, what assurances are there that the most appropriate care setting will be provided for these vulnerable people? Remaining at home may not be the best setting for some people, but would it be right if leaving home would incur a financial penalty? That penalty might even be felt in the future by those who would benefit from the estate. It is appropriate to indicate from these Benches the perverse effect of human sin on virtuous aspirations.
The proposed measures in this Bill could lead to a two-tier system in funding arrangements. I assume that the Government have concluded that universal funding is simply too expensive, and that would be understandable given the current experience in Scotland. It also seems that finding a suitable mechanism to manage both personal care at home and support for those in residential homes is simply too complex to offer at the present time. But in choosing to promote the real interests of a significant group of people, the needs of others may be left unaddressed. The Government have promoted this Bill as a first step towards a national care service, but it is not at all clear on what basis this has been chosen as that first step. Why exaggerate this virtue? Why not wait until other complementary steps can be put in place? The big care debate has scarcely been concluded. The valuable and varied contributions of its many respondents cannot surely have been adequately evaluated, so why such haste in bringing forward this one proposal?
Issues of fair funding and the universal provision of services are immensely complex, as the outcome of the Royal Commission on long-term care demonstrated over 10 years ago. I fear that there will be a plethora of exaggerated virtues on display in the run-up to the next general election, and that is why I shall be supporting the amendment to the committal Motion in the name of the noble Lord, Lord Warner. In relation to the Bill, the task of this House must surely be to shape this legislation so that it does not have unforeseen and undesirable consequences, and so to assist in the valuable formation of a national care service with truly balanced virtues.
Afghanistan Conference and Yemen Meeting
My Lords, with the leave of the House, I shall repeat a Statement made earlier today by my right honourable friend the Foreign Secretary in the other place on the Afghanistan conference that took place on 28 January, and the Yemen meeting the previous day.
“It is a grim but important feature of all discussion on Afghanistan to remember the loss of life, coalition and Afghan, in the past eight years. As I saw for myself again two weeks ago in Kandahar, Lashkar Gah and Kabul, British troops are showing fortitude beyond measure, and their families support beyond compare, that deserves the recognition of the whole nation.
The stakes are high, not just for those serving in Afghanistan, but for all the Afghan people, for the south Asian region, for the credibility of the NATO alliance and, ultimately, for our national security. As I explained when I spoke in this House on 14 January, 2010 will be a decisive year for Afghanistan. With a new Government, a refreshed counterinsurgency strategy and a commitment to increase international troops by 60,000, the Afghans and their allies now have the chance to reverse the momentum of the insurgency, if the military and civilian effort is directed towards a durable political settlement in Afghanistan. That was the impetus behind the decision taken by my right honourable friend the Prime Minister to convene the London conference. Our aim was to mobilise international resources, military and civilian, behind a clear political strategy to help deliver the ambitious agenda that President Karzai set out at his inauguration last November. Our goals are threefold: to win over the active support of more of the Afghan population; to split the insurgency; and to encourage Afghanistan’s neighbours to become part of the solution.
Following my consultations in Pakistan, Afghanistan, Washington, Istanbul and Brussels, representatives from over 70 countries and international organisations travelled to London to attend the conference. The communiqué, which was agreed among all conference participants, provides the detail of what was agreed. With respect to security, the focus was on the Afghan national security forces. The growth and development of the indigenous security forces is intended to give the Afghan population the confidence to resist Taliban bribery and intimidation. Afghanistan now has almost 200,000 soldiers and police, who are already assuming greater responsibility in military operations. But the London conference agreed new, more ambitious targets to increase the Afghan national security forces by over 50 per cent by October 2011 by training 70,000 additional members of the Afghan National Army and 38,000 more police.
The conference also marked the beginning of the transition process, agreeing the necessary conditions under which we can begin, district by district and province by province, the process for transferring responsibility for security from international to Afghan forces. The intention is for some provinces to transition by late 2010 or early 2011, on the road to meeting President Karzai’s target that within three years Afghans should have taken the lead and be conducting the majority of operations in insecure areas. With additional troops, Afghan and international, the insurgency will come under increasing military pressure. President Karzai is launching a peace and reintegration programme for those who can be persuaded to switch sides. The rest will face growing military danger. It is essential that all the ethnic groups of Afghanistan are given a route back into Afghan society, as long as they respect the Afghan constitution and break links with al-Qaeda. We support all efforts towards this goal. The peace and reintegration trust fund, announced last Thursday, is the vehicle through which the international community will provide financial assistance. Already $140 million has been pledged for the first year.
Governance and development were the second priority for the London conference. Local and provincial government in Afghanistan is chronically weak. Less than a quarter of Afghanistan’s 364 governors have electricity and some receive only $6 a month in expenses. That is why the conference agreed to provide additional support to train over the next two years 12,000 sub-national civil servants in core administrative functions. If the Afghan Government are to win the support of more of the population, they need to govern in their interests, so the commitments they made at the conference to take steps to end the culture of impunity are important. They have promised to strengthen the independent High Office of Oversight to investigate and sanction corrupt officials, to bring their laws in line with the UN Convention Against Corruption, and to invite a group of Afghan and international experts to develop benchmarks for progress and report regularly against those benchmarks. Their first visit will take place within the next three months.
These promises must now be translated into rapid action. The international community again pledged its support on Thursday, and for the first time it said that, once key conditions are met, it will increase the proportion of development assistance channelled through the Government, and will support the Government to meet those conditions.
Development assistance is important in its own right but it will also help to draw people away from the insurgency and the drugs trade. That is the significance of Thursday’s announcement that Afghanistan will receive up to $1.6 billion extra in debt relief from major creditors and that there will be a new IMF programme from June 2010. The legal economy, notably agriculture, needs substantial support. The progress in reducing drug production is also welcome in its own right.
The third element is relations between the countries of the region. The situation in Afghanistan is destabilising south Asia. Crime, drugs, terrorism and migration spill across its borders. There is a growing awareness within the region that the status quo in Afghanistan benefits no one. Afghanistan’s neighbours also increasingly accept that no country within the region, let alone the international community, will allow Afghanistan to become a client state.
In these twin changes—a recognition that a client state is out of reach for all, and that an unstable state is damaging for all—is the seed of our shared interest. This shared interest should be the basis for greater regional co-operation. Each neighbour needs to know that its restraint and co-operation will be reciprocated, so they need reassurances about each other’s behaviour and intentions. That is why last Tuesday I attended the regional summit in Istanbul to discuss how Afghanistan’s neighbours can support stability in Afghanistan and enhance regional co-operation. At the London conference, the Afghan Government requested that the relevant regional bodies develop a co-ordinated plan for Afghanistan’s regional engagement as soon as possible. The prize of regional co-operation is immense: Afghanistan’s neighbours cutting off the lines of funding, support and shelter that stretch across Afghanistan’s borders. This is why the regional element of a political strategy will be given greater emphasis over the coming year.
Mr Speaker, this political strategy and the agreements reached on Thursday need to be pursued with drive and determination and without delay. The Afghan Government will host a further conference in Kabul later this spring. By then, President Karzai will need to have made real progress on security, governance and development. The international community, too, has an important role to play in ensuring effective implementation. That is why three new international appointments are being made—at the UN, in the EU and in NATO, where the NATO Secretary-General has created a new NATO senior civilian representative to strengthen co-ordination of development and governance work, and our ambassador in Kabul, Mark Sedwill, took up this role on Thursday—to create greater unity of civilian command.
Afghanistan and Yemen are 2,000 miles apart; they have diverse histories and different cultures and are fighting different enemies. But there are common themes. In both cases the lack of development, weak governance and the absence of security provide a vacuum for extremists who threaten our shores. In both cases, these underlying, long-term causes must be addressed.
The purpose of the London meeting on Yemen on 27 January, as agreed with President Saleh, was threefold: to forge international consensus about the challenges that the country faces; to build impetus behind the economic and political reform agenda; and to improve the international co-ordination of support for the Yemeni people and Government.
The Government of Yemen were represented by Prime Minister Mujawar. The Foreign Ministers from the Gulf Cooperation Council countries and the key regional and international partner nations all participated, alongside representatives of the European Union, the United Nations, the IMF, the World Bank and other international institutions.
The Prime Minister gave an honest appraisal of the challenges his country faces—“brutally honest”, in the words of the US Secretary of State. The threat from al-Qaeda has put Yemen in the headlines, but it has long been the poorest country in the Arab world, with a growing population, fast dwindling oil and water reserves, an armed conflict in the north, and increasing instability in the south.
First, all present committed to support the Government of Yemen in the fight against al-Qaeda. The meeting welcomed the recent UN sanctions committee decisions on designation and called on all states to enforce the terms of the designation under UN Security Council Resolution 1267.
Secondly, the meeting agreed to engage in further helping Yemen to address its broader security challenges, including through increased international support for the Yemen coast-guard.
Thirdly, Prime Minister Mujawar confirmed that his Government would continue to pursue their reform agenda and start discussion of the IMF programme. The director of the IMF made a compelling case for the way in which economic reform could be supported by the IMF.
Fourthly, participants agreed concrete action to improve the disbursement of aid, and the GCC secretary-general called a meeting of Gulf and other international donors to share analysis on the barriers to effective aid disbursement and establish a joint dialogue with the Government of Yemen on their reform priorities. This meeting will take place on 27 and 28 February.
Fifthly, the 25 countries and organisations represented also agreed to establish a Friends of Yemen group to help the Government implement their national reform agenda. Two working groups—on economy and governance, and justice and law enforcement—will report to the first Friends of Yemen meeting.
Conferences and meetings can seem a long way from the daily dangers of IEDs in Lashkar Gah or the 40 per cent unemployed in Yemen, but neither problem will be resolved without coherent plans confidently advanced by sovereign Governments with huge support from the international community. As a result of last week’s efforts, there is a new confidence and clarity. The test is to turn these words into deeds. That is what we are now committed to doing”.
That concludes the Statement.
My Lords, I thank the Minister very much for repeating this admittedly pretty long Statement. I take the opportunity, once again, to offer condolences from this side of the House to the bereaved families of those brave soldiers who have been murdered in Afghanistan, and repeat our praise for the fortitude of our Armed Forces. I will take the issues raised by the Minister in reverse order.
First, on Yemen, we welcome the meeting and the plans for a follow-up meeting in Riyadh later this month. Obviously, addressing the problems in Yemen will require sustained support from the whole international community and from the Gulf states in particular. I ask straightaway what steps have been taken to involve neighbouring states directly, both in sponsoring internal peace in Yemen, which is lacking, and in accelerating financial and economic support for this desperately poor country. I understand that unemployment is over 40 per cent, if indeed that measure can be made at all.
At the meeting last week a new Friends of Yemen process was launched, as the Statement has told us. Can the noble Baroness tell the House what role the UK will play in this process, and exactly who the members of that group will be? What is her assessment of whether the Government of Yemen will now take the urgent and concrete action or the political and economic reform that they have pledged? It is a difficult question, I know, but may we have her judgment?
I now turn to the more preoccupying issue at the moment of Afghanistan, although things may change. After eight years and five major conferences, it is stating the obvious that the situation in Afghanistan remains an immense challenge. We hope that the timing and location of this London conference has helped to meet that challenge. We are all committed to ensuring sufficient stability in Afghanistan so that Afghans can look after their own security without presenting a danger to the rest of the world. Obviously, to that end, the new strategy set out by President Obama the other day must be given time and support to succeed and must be accompanied by a viable political process alongside the military efforts.
I want to deal with three main areas in my response: first, the military and security strategy, then the political strategy and, finally, the timetable for the transition to Afghan control. Indeed, I seek assurances that those three areas do not undermine each other and do reinforce one another. First, we welcome the decision by other countries to commit additional manpower, especially the announcement from Germany. How many of the 9,000 additional non-US forces announced will be stationed in Regional Command South, where the hardest fighting has been? Will every effort be made to ensure that the commanders’ use of these forces will not be hampered by restrictive rules of engagement? How many of the additional 10,000 Afghan troops for Helmand, which the Prime Minister announced back in November, are now in place and when will that deployment be complete? The conference communiqué also urges countries to give more support to the Afghan National Police. When will the detail of the support be made more specific? Can the Minister confirm that there is, alas, still no agreed national strategy for the reform of the police? When does she expect that that will finally be in place?
On the civilian aspects of the strategy in Afghanistan, we welcome the appointment of a new NATO civilian representative and a new UN special representative. I understand that there is to be a new EU special representative with strengthened powers, as announced by the noble Baroness, Lady Ashton, in the conference. What has been done to ensure co-ordination of the work of these new officials to avoid the duplication of the past and give the unity and coherence to international efforts so often called for in this House by the noble Lord, Lord Ashdown, and others?
On the political strategy, is the Minister confident that the postponed parliamentary elections will now go ahead in September? Does she agree that the fairness and credibility of those elections is of huge importance, given what happened in the previous presidential elections, and does she think it is the true intention of the Afghan authorities to run a seriously improved electoral process? How realistic is that aim given the unique tribal and cultural patterns of Afghan society?
The communiqué and report mentioned that President Karzai will host a grand assembly or Loya Jirgah within six weeks and that the invitation will be extended to the Taliban. Can the Minister say what the objectives of the assembly will be and how those tie in with NATO strategy? Can she assure us that there will be moves to involve the Pashtun tribes fully in this process, because there will be no progress without them?
A major focus of the conference was on the new peace and reintegration trust fund as well as a new IMF support programme. It has been reported that the fund will total $500 million. Is that right, and what contribution is our own country making to that fund? May we have a little more detail on how the money will be used, how its expenditure will be overseen and what mechanism will be in place to ensure that the funds will not be misappropriated? Who will be responsible for the distribution at regional level and how will oversight and follow-up be ensured? Can the noble Baroness update us on the poppy and drugs issue beyond what was in the original Statement? How will the large and welcome Japanese commitment of $5 billion over five years to Afghanistan be dovetailed with the other development strategies?
It is well known that Taliban elements operate in Pakistan’s border area as a threat to both Afghanistan and Pakistan—and the rest of us as well. Does the noble Baroness envisage any of these funds being channelled to the Pakistani Government for the same purposes? We understand that five Taliban leaders have been removed from the UN sanctions list as part of the reconciliation process. Is she confident that the security implications of that have been fully assessed? Are other removals planned?
Finally, on the handover plans, the communiqué says that the goal is for Afghan forces to take responsibility for physical security within five years. Meanwhile, President Karzai says that the training and equipping of Afghan security forces may take up to 10 years. I think I heard him say on the radio that they will need outside assistance for up to 15 years. Does the noble Baroness share those assessments? Above all, what specific steps has the conference achieved towards recognition that this is not just a western problem? Afghanistan’s near neighbours, such as Turkey, Saudi Arabia, Pakistan and maybe even China, must be involved if progress can be made with them. I agree with the communiqué statement that the prize of regional co-operation is immense. One day, a less aggressive and negative Iran might be involved constructively. It could be said that the dewesternisation of this whole problem may be the only and best path to peace.
Many of the commitments made at the previous London conference on Afghanistan in 2006 have never been met. The British public are now waiting to see whether progress can really be made and to assess whether our military effort and high sacrifice are truly worth while. This time round, they must see a clear sense of direction, purpose and aims, and in this they must not be disappointed.
My Lords, I thank the Minister for repeating the Statement. We are all conscious this week that we are struggling to recover ground lost between 2002 and 2005 when we failed to concentrate, as we should have done, on Afghanistan. We are reminded in the Iraq inquiry at the present moment why we lost those years. We now find ourselves in difficult circumstances trying to make up the ground in economic development and political and social reconstruction. I note the Statement’s reference to the problem of corrupt officials and endemic corruption within Afghanistan.
On the peace and reintegration trust fund, I will repeat some of the questions of the noble Lord, Lord Howell, and expand on them. What percentage of the peace and reintegration trust fund will the United Kingdom be providing? Which governments apart from the Government of Japan will be the other major contributors, given that Britain is making one of the largest military contributions to Afghanistan? I very much hope that others will provide other forms of support.
Throughout this engagement, my party has stressed that we cannot resolve the problems of Afghanistan without the broader regional context. That applies to both Pakistan and Yemen. Pakistan is intrinsically linked to this. Since the Indian conflict with Pakistan is so central to Pakistan’s existence, India has to be brought in closely, too. I am told that Iran presently provides useful support to the Karzai regime. We know that Iran is actively concerned with Dari speakers in western Afghanistan. In the complicated relationship we presently have with Iran, we need to remember that Iran is a potentially positive player in the future of Afghanistan. We should not allow other dimensions of our relationship with Iran to pull across that. Saudi Arabia also has a close relationship with Pakistan. I hope that the Minister can assure us that we are in active consultation with the Saudis on the role that they can play in bringing peace to the region.
The noble Lord, Lord Howell, mentioned Russia, China and the northern neighbours, as well as the Gulf states, which have contributed to the problems of Yemen by expelling the expatriate Yemeni workforce after the invasion of Iraq. Clearly, those states have to provide considerable contributions to dealing with the problems of Yemen. Yemen itself stresses that we are talking about the wider region. The radicalisation of Islam and the failure of Arab state regimes in political, social and economic development have been set out clearly in successive Arab Human Development Reports—this applies not just to Yemen but to a range of other countries. I note that the regional conference was held in Istanbul.
We are talking about the problems of the region, but the foreign fighters in both Yemen and Afghanistan come from west Africa, Indonesia and parts of the former Soviet Union, as well as from the United States and Europe; they travel out there to study and become radicalised. Will the Minister assure us that we are not overcommitting to the military support of the current regime in Yemen, which has been in power for a very long time, and to a military response alone? We also have problems with corrupt officials. I was told the other week that advanced weapons supplied to Somalia are being bought and sold, with end-user certificates provided, through Yemen and that the Yemeni army is involved in this trade.
Does the Minister accept that it is urgent that we address the wider Arab/Israel Middle East conflict as a major factor in the radicalisation of young men across the region? As part of that, we need to distinguish the British approach from that of the United States, which, sadly, continues under the Obama Administration to show a remarkable lack of understanding of the complex politics of the region. I am sorry that NATO and the EU have not agreed to support a common representative. Can the Minister say anything about the efforts of the British Government to agree a common NATO/EU representative in Afghanistan and why, sadly, we failed to achieve one? The Statement began by referring to how crucial the outcome in Afghanistan is to the future credibility of NATO, so will the Minister at least take back to the Foreign Office the question of how far, in discussing the future of NATO and the NATO strategic concept, we may find ourselves bound up with the future US position on the Middle East, which is one of the most delicate issues for the future of the alliance?
My Lords, I thank noble Lords for their questions and contributions to what is clearly an extremely important debate at this time. The noble Lord, Lord Howell, raised the issue of Yemen, where, of course, chronic poverty and unemployment contribute to the instability of that country. I can confirm that no cash promises were made at that meeting, which was well understood by the Yemeni representatives. However, there was a commitment to work with the IMF and an understanding from the states that were present and others that it would be necessary to work closely with Yemen.
The outcome of the London Yemen meeting consisted of five agreements. The first concerned Yemen and the IMF, which I have mentioned. Secondly, as was mentioned in the Foreign Secretary’s Statement, it was agreed that the Gulf Cooperation Council would meet to discuss the regional role that could be played in supporting Yemen. An international commitment was made to support Yemen in fighting against al-Qaeda and to help Yemen to address broader security issues. It was agreed that the Friends of Yemen group would be launched to offer targeted help in those areas. I am afraid that the detail of the group has not yet been worked out; it is being prepared, but the outcome is not clear.
On Afghanistan, the noble Lord, Lord Howell, raised the issue of security and asked how the transition of responsibility would work. The Afghan national security forces have already taken on the lead for providing security in Kabul. They also led the successful security operation that ensured that last August’s presidential election took place despite the insurgents’ stated aim to prevent it. As noble Lords will agree, transition is a gradual process, so setting timetables at this time is not possible. The pace of transition will vary from area to area, because it is based on conditions on the ground, the Afghan forces’ ability to provide security and the necessary agreement of both the Afghan Government and the international community—the UN, NATO, et cetera. As the Prime Minister has said, it will be necessary for the UK to remain until the job is done. The more the Afghan forces can take responsibility for security, as the Prime Minister said at the end of last year, the less the coalition forces will be needed and the sooner our troops can come home.
On the training of the security forces, 100,000 Afghan troops have been trained and there will be 134,000 Afghan troops and 109,000 Afghan police helping to protect the Afghan people. Last week, the Joint Coordination and Monitoring Board agreed to further increases in Afghan troop numbers, which will bring Afghan security forces to over 300,000. This is far bigger than our present coalition forces. UK troops run Afghan army mentoring, which is important—as is the mentoring of the police—throughout Helmand, including in US areas.
Over 90 per cent of ISAF operations are now conducted in conjunction with the Afghan army. That army is starting to take the lead in independent operations, which is a major step towards the goal of self-sufficiency and national security. President Karzai has promised that Helmand will be a priority for Afghan deployments, and I can reassure noble Lords that we are pressing him to honour that agreement. As to how many US troops will be deployed in the south, since President Obama announced the outcome of his review in December 2009, 40,000 additional troops have been pledged to ISAF, at least half to the south, and non-US contributors of 10,000 troops are deepening their deployment, where that is appropriate and possible.
On the issue of overcommitting in the Yemen, which was raised by the noble Lord, Lord Wallace, insecurity and instability there will have a significant impact on regional security. It is important that all in the international community step forward to help the Yemeni Government, as I think the noble Lord would agree. We are not alone in providing support to Yemen and we believe that it is necessary to do so. Studies have shown that every one dollar spent on pre-conflict work saves four dollars in post-conflict rebuilding. If I have not answered all the many points made, I will do so in writing.
My Lords, I have questions on Afghanistan. Russia has been extremely helpful in terms of overflying rights. Has it made any more commitments to assist the effort in Afghanistan? Secondly, strategists increasingly think of Afghanistan and Pakistan together. To what extent has this been reflected in the new appointments which my noble friend mentioned? Finally, on the Afghan diaspora, over the past decades some of the brightest and best of the Afghani professionals—doctors, engineers and so on—have left that country for the West. Did the conference look at ways and means of attracting back to their country some of those members of the Afghan diaspora, many of whom will have now taken root and have family commitments in the West? Have we considered short-term contracts to facilitate the return of members of the diaspora back to Afghanistan?
I thank my noble friend. I understand that Russia has engaged seriously and consistently with the processes that have been taking place in relation to Afghanistan. I do not have any information on the Afghan diaspora; I can only presume that, as is the case for the Somali diaspora, for example, every effort is being made to draw those people into the process and ensure that they have a constructive and positive contribution to make to the efforts of others in their country.
My Lords, I, too, thank the noble Baroness for repeating the Statement.
I raised this issue on 19 November and, unfortunately, the Government studiously avoided answering my point about the extra training that members of the new Afghan army would benefit from. I had the privilege of visiting our troops in Afghanistan a short time ago, and of meeting members of the new Afghan army. Perhaps it is the village schoolmaster coming out in me, but it struck me that the provision of education for young Afghan soldiers would attract them to join the army. Looking at army pay, they can earn as much money fighting for the Taliban. Is it not important that we increase the educational opportunities for Afghan troops, so that when they return to their own villages they have status and become exemplars for their communities? I would be grateful if the Minister could tell us how that might be accommodated. I received one Written Answer recently which suggested that they received one week’s educational training. That does not strike me as realistic. I hope that the noble Baroness will agree with me on that point.
I thank the noble Lord. As someone who is also an ex-teacher, I very much value his point about the importance of education and the contribution that it can make to creating an army that is able to deal more effectively, and with greater understanding, with the reasons why it is doing what it is doing. We know that from experience in our own country. I promise to look into the issue more fully. I do not remember signing an Answer to such a Question, but I promise that I will look closely at the noble Lord’s point, because it is very important.
As of December 2009, 100,000 Afghan troops have been trained. I imagine that a great deal of lengthy education was probably neither possible nor feasible. However, we ought to take into account the need to provide that extra effort to ensure that the troops are better able to protect the Afghan people.
My Lords, the Statement by the Foreign Secretary seemed to be a mixture of depressingly real facts and, equally depressingly, wholly unrealistic aspirations. I shall raise one aspect, of which the Minister ought to have some professional knowledge.
During Operation Panther’s Claw in July, parliamentary colleagues and I had the opportunity to visit Afghanistan. The Minister will remember that her right honourable friend the Foreign Secretary told the House of Commons, in the final debate before the House rose for the summer, that some 90,000 Afghan troops were already trained. However, he revealed that only 450 of them had been persuaded to join Panther’s Claw. Some 15,000 coalition troops were engaged in that ultimately unsuccessful operation. Why, therefore, do the Government have any confidence that, merely by training more relatively low-grade—as has been suggested—Afghan troops, they will be able to persuade them to confront the Taliban at a time when, to them, at least, the Taliban will appear to be winning?
Did the noble Baroness not feel some shame when she signed a Written Answer to me and, subsequently, a similar Written Answer to my noble friend Lord Lawson of Blaby, saying that the Government were unable to state the total cost of our military operations in Afghanistan because the MoD did not keep its books in that way? Will she take steps to ensure that the MoD sorts itself out, and will she provide that information, which must be crucial when judging what we can and cannot do?
I thank the noble Lord. I point out that answering Questions is often not possible, not because the MoD or anyone else does not keep its books properly, but perhaps because the nature of the Question made it very difficult to answer in the way that the noble Lord requested. Perhaps resubmitting a Question may be the easier way forward in terms of providing a clearer answer to the noble Lord.
On the security situation, we continue to work with the Afghan national security forces, and that is about improving security for the Afghan people. Many operations by ISAF and the Afghan security forces have been successful when they have been under the control of the Afghan Government. It is unfair and unsubstantiated to claim that there have been failures of the nature that have been described. What my right honourable friend the Foreign Secretary was pointing out in the Statement was that in the London conference we sought more clarity on some of these issues and greater understanding that it is necessary for us, for instance, to talk to the Taliban. We need to work with the Afghan Government to separate people from the hard-line ideologues and draw them down into the domestic political processes. That was the objective of the London conference and it has been addressed very well. It makes not just the coalition forces but the Afghan leaders and people feel a lot more hopeful about their future. We should not underestimate that and should not have cynical views about what has been achieved.
Perhaps my noble friend would agree with me that the recent holding back of the attack on central Kabul was very successful and a good example of the progress being made by the Afghan army. On a wider issue, will she expand a little on what she said about Yemen? She referred directly to the rule of law or legal institutions. This is more than a regional problem. There is a belt of countries, from the Horn of Africa, through Yemen, the Middle East, Afghanistan and some of the central Asian republics, where the two central problems are the lack of any legal structures, other than very basic ones, and serious corruption. One can throw in democracy, but it is not always a stabilising force, as are the rule of law and battles against corruption. Can my noble friend say more about the European Union’s role whereby it could use its experience and resources to help those countries develop sophisticated efforts to deal with corruption and develop more structured forms of the rule of law?
I thank my noble friend. I am keen to state the extreme importance of the European Union in these matters. The high representative attended the London conference and was extremely interested in and supportive of the efforts that have been made to deal with Yemeni and Afghan issues at that conference. It is absolutely right to say that the resources of the European Union and its support for building regional integration and the efforts of the Yemeni Government to meet some of the chronic poverty, unemployment and other issues that they face would be very important. The Friends of Yemen group will offer targeted help, alongside the European Union and the coalition more generally, in areas of most need.
My Lords, it is good that we support the Afghan army, but there is a danger that we in the West rather overemphasise its operational capabilities and its leadership. To this extent, also, to hold the hand of friendship and parley with the aggressor, the Taliban, before we have it on one knee—or, preferably, two—is rather dangerous. We are dealing with a very proud people. Some will be attracted by land, money and jobs, but the talk in the coffee and tea shops of Quetta in Pakistan and elsewhere is very much that the Taliban is not losing but is in the ascendancy; that it is winning, and that the fact that we want to talk to it shows a weakness on our part.
I ask the Government, then, to beware. We are dealing with people who admire and respect power and strength, and we have to show that we have both. As a nation, we are actually fairly weak in some of those departments. I would be rather careful about meeting the Taliban and thinking it a friendly gesture when, at the time, it thinks that it is because we are weak. The reason that the President of Afghanistan asks for, and suggests that he will require, help for 10 to 15 years is entirely because of his weak government, and the fact that he does not get out among the tribes and realise that it is a tribal situation.
With the greatest respect to the noble Baroness, I believe that the Foreign and Commonwealth Office does not, in many ways, have the experience or the capability to know what the Taliban is really up to. We will find that it is like all guerrilla armies; it will go when it wants, leave when it wants and come when it wants, strengthened in purpose. It is a difficult situation and I do not mean to be depressed by it, but there is great work to be done and still a lot of fighting to get over.
I thank the noble Viscount, but I point out that our forces are in Afghanistan to prevent the return of al-Qaeda. The best way to achieve that is to create a secure and stable Afghan state. Our core strategy remains Afghanisation, which means training up Afghan security forces and getting them to take a lead role. We should continue with the mentoring partnering approach; I can assure the noble Viscount that that is creating improved opportunities for moving things forward. It is only when Afghan troops and police can secure Afghanistan for themselves that our troops will be able to come home.
As for the views of Afghan people, a BBC opinion poll of Afghans was released on 11 January where it is evident that the people of Afghanistan feel that they are benefiting from the clear progress being made in their country. It showed that the people of Afghanistan consistently rejected the Taliban, which, they clearly understand, only offers violence and destruction for them. Instead, they welcome the Government of Afghanistan, the international community and the initiatives that have been taken.
We are in Afghanistan militarily to prevent it becoming, once again, a safe haven for terrorists to threaten the UK and the rest of the world. That is a fine objective, and one which we all have to unite behind. By creating a stable and secure Afghanistan, the people of Afghanistan can also benefit from improved governance and a better social and economic situation. That has to be worth doing and is an imperative for us at this time.
My Lords, I shall follow on from the question of my noble friend Lord Marlesford. We know that the Afghan National Army is making far better progress than the Afghan National Police, but of course we will have to place great reliance on both forces. Is the Afghan National Army now able to undertake autonomous battalion-level operations at night?
I think I may have to write to the noble Earl with the answer to that question.
Perhaps I may follow up an area of questioning from the noble Lord, Lord Howell, which—I say this in the nicest way—I do not think the Minister covered in her response. I refer to the whole area of responding to the more moderate Taliban elements, who we hope will come over to us. Can she say what planning or thought has gone into that? Will there be monitoring stations or similar receiving stations in each province? Who will handle the monitoring of individual Taliban who approach? Will they have to hand over their weapons? Has any thought been given to whether money will be paid out to them immediately or whether it will be phased over a period, and who will then be involved in the subsequent monitoring of the elements of the Taliban who have come over to us?
My Lords, all this will need to be led by the Afghan Government, because it is their initiative that will be funded by the trust fund. However, careful monitoring of the processes will take place. As I said earlier, it is about identifying those who are not the hard-liners and are far more likely to be enticed back into the domestic political processes. I think that we have to work with the Afghan Government in providing not “reconciliation and reintegration” but “reintegration and reconciliation”. The first process has to be building towards the reintegration of these individuals and then beginning a reconciliation process. It will involve exercises similar to those in other countries where the surrender of weapons, renunciation of violence and so on played a part. All those aspects of dealing with the transformation will be very important. Of course, the reintegration must be Afghan-led and inevitably it will be funded by the international community.
Personal Care at Home Bill
Second Reading (Continued)
My Lords, I was a little uncomplimentary about this Bill in the Queen’s Speech debate on 26 November. The more I discover about it, the less I like it, as Members of this House will know from the letter that my noble friend Lord Lipsey and I circulated and from my Motion on the Order Paper. I shall be blunt. This is a seriously flawed Bill that has been inadequately discussed and scrutinised, and it takes us down an unaffordable path. It has been put together in a great rush in the search for clear blue water to place between Labour and the Conservatives. In my view, the Bill is not a step towards the wider reform of adult social care that we need and that the Department of Health has been seeking over the past two years or so; it is a political gimmick that the Government are trying to ram through Parliament before an election without proper scrutiny of what it will result in.
Let me be clear at the outset about my position on free personal care at home. I have a track record in this area, having spent six years as a director of social services, helping elderly people to stay in their own homes as long as possible. I am proud of that record. Like many people in this House, I would favour free personal care at home for more people if it were affordable. However, at present it is not. Even when the public finances were in a better state than now, the Government turned their back on tax-funded free personal care: in 1999, with the report of the Royal Commission on Long-Term Care of the Elderly; again in 2006, when Sir Derek Wanless produced his report; and most recently in July 2009, when the Government published their own Green Paper which “ruled out” free care paid by the taxpayer. Page 18 of that Green Paper is the reference.
Cometh the electoral hour, cometh the man. When the public finances face what the Institute of Fiscal Studies has described as “two Parliaments of pain”, the Prime Minister decides to tell the world that we can afford more free personal care at home, a few months after he signed a foreword to a Green Paper with seven other Cabinet Ministers acknowledging that we cannot afford to pay for free personal care. He ruled out that option.
I remain in the position I have been in for some time: that it is unaffordable at present. I am really pleased to see that the Liberal Democrats have acknowledged that it is not affordable at this time. The Conservatives remain a little inscrutable on the subject—they seem to have a preference for insurance—but they have not made rash promises that may be very difficult to deliver. I am grateful to the right reverend Prelate for what he said about not promising what you cannot deliver. I think that promising elderly and vulnerable people and their families something which is not affordable or deliverable any time soon is a rather cruel deception, and I certainly do not want any part of it.
I turn now to the affordability and costs of the Bill. The Government say that it will cost £670 million a year, with £250 million being funded by local authorities—to which I will come later. In an admittedly incomplete survey of 132 local authorities by the Association of Directors of Adult Social Services, the Government figures are shown to be significantly understated. ADASS states that the annual bill will be at least £1 billion—some 50 per cent more than the Government’s estimate. The final cost could be even higher.
The difference is because the Government have seriously underestimated how much care per week many of the people with critical care needs will require. It will not be over just six hours a week at an average cost of about £100 a week, it will be many more hours with costs ranging from £200 to more than £400 a week. The case that my noble friend cited in introducing the Bill sounded to me like it would require a lot more than six hours a week to keep that person in their own home. The Government's cost figures take no account of increased demand year on year, and little account of rising service provider costs. Their impact assessment states that there will be a 1.5 per cent annual increase in service volume from demography, and a 2 per cent annual increase in price for wage increases. In a Written Answer to me, the Government declined to accept that there will be any increase in demand, or that providers could put up their prices by more than 2 per cent a year.
Although this is not directly comparable to the Scottish situation, the Government's stance flies absolutely in the face of the evidence from that social experiment, if I may put it that way. In Scotland, when home care became free, the costs doubled in four years between 2003-04 and 2007-08. The number of people claiming went up by 36 per cent in the same period. In the last of those four years, cost increases by providers were about 15 per cent in a single year. The Government's proposal will create a perverse incentive to have free home care rather than means-tested residential care, so why they regard it as unlikely that there will be increased demand totally eludes me. It is also worth noting that in Scotland, a debate has begun on the affordability of free care.
I turn briefly to the uncomfortable position in which the Bill places local government. In a written reply to me of 27 January, the Government stated that gross current expenditure on adult social services in the past three years went up by 1 per cent, 0 per cent and 3 per cent in real terms. That compared with a nearly 15 per cent real- terms increase in NHS expenditure for the same period. My understanding is that from this less than generous position, local authorities must now find a further 4 per cent efficiency savings and their share of the £670 million. If it turns out that the Government’s estimate of £670 million is wrong, it looks to many people in local government—they are understandably concerned about this—that they will have to pick up an even larger tab at a time when many of them will also be losing income from the many people who pay charges now. This is an uncomfortable position for all members of ADASS and the local authorities they work in. Parliament is entitled to press the Government much harder on their costing figures and assumptions. My noble friend the Minister rather brushed this aside, relying heavily on the PSSRU. We should listen more carefully to the guys and gals who will be running this system in local authorities up and down this land.
These are all matters where we might reasonably have expected to discuss in Committee some of the technical issues in more detail after the Government had completed their consultations on the content of the regulations and guidance and had given some indication of their response. Likewise, some of us have concerns—the noble Baroness, Lady Gardner of Parkes, referred to this—about the administration of the scheme and its added complexity. I do not have time to go into all these issues today, but the volume of assessment problems for local government and front-line staff could be quite considerable in this exercise. As I understand the Government’s intention, this is all to be completed, over the summer holidays, by 1 October—and yet the Government want us to be in Committee on 22 February, before they have completed their consultations and responded to the concerns expressed.
Given that none of the new arrangements is in the Bill but are left to regulations and guidance, this seems to me to be—I do not use the term lightly—an abuse of parliamentary procedures for the proper scrutiny of legislation, especially in light of the limited scrutiny in the Commons. Simply passing to us some draft regulations—which the Government say will not be the finished business—to look at, without hearing how the Government are going to respond to the points made to them by many expert people in their consultations, is not sufficient. That is why I have tabled a Motion on the timing of the Bill going into Committee. I shall speak to that Motion at the appropriate time but I hope the Government will think again and give ground in this area. I am grateful for the support for this of the right reverend Prelate the Bishop of Norwich.
The Bill will complicate an already complicated assessment system, which is itself under review following criticism from CSCI in 2008. The Government’s impact assessment at paragraph 5.21 admits that the “wealthiest older people” are the main beneficiary group. If we want to do more for carers, as I am sure many noble Lords do, there are better ways of doing so much more cheaply than by spending £670 million a year. The costs of implementing the Government’s proposals under the Bill look to be over £1 billion a year—the Government have not disproved that estimate—and will continue to go up faster than the Government’s estimates. The Bill is unaffordable given the current state of the public finances. We owe it to a younger, taxpaying, working population not to impose an unaffordable financial burden on them as our population ages. There is an inter-generational social justice issue around this area of activity and I urge the Government to get back to their Green Paper, work with the stakeholders and the other parties and try to secure much more consensus on the funding and service reforms needed for adult social care, rather than wasting more time on this Bill.
My Lords, I agree with every word the noble Lord, Lord Warner, has said—not surprisingly, since we have been working non-stop on this for several weeks now—and with his remarks about the right reverend Prelate the Bishop of Norwich, who hit the nail on the head. Not every piece of legislation that goes through this House is perfect but some pieces of legislation stand out because, by common consent, they prove disastrous. I am thinking of the Local Government Act 1988, which introduced the poll tax, and of the Dangerous Dogs Act. I could go on, but that would bring me into the term of office of the Government of which I have hitherto been a loyal supporter. However, as someone who has worked in and around these Houses for 38 years, I believe that this Bill will prove to be a contender for the worst of the lot.
Bad legislation has certain characteristics. When first proposed, it sounds great. Behind it usually rests an overtly political purpose. It usually has the dogmatic backing of the Prime Minister of the day. It is usually subject to insufficient consideration in Government and rushed through Parliament. We legislate in haste; we repent at leisure. All these are characteristics of the Bill before us today. There was no policy process. Or rather, there was but it was usurped by the Prime Minister’s rabbit-from-a-hat trick at the Labour Party conference, which I was unfortunate enough to witness. There was no government consideration or any ministerial collective consideration worth the word. As the Government were consulting on the Green Paper on the subject—a very good Green paper produced by the Secretary of State, Mr Burnham—the Prime Minister announced as the Government’s firm policy one which directly contradicted that Green Paper. Then, after a few days during which Whitehall reeled in unparalleled confusion, this Bill was cobbled together with costings which have disintegrated under scrutiny and regulations which leave all the vital decisions to be taken without parliamentary scrutiny, not even the affirmative resolution procedure in the two Houses of Parliament. After Second Reading, the Bill was rushed through the Commons in a single day of perfunctory debate and now the Government want to rush it through the Lords.
That brings me to the role of your Lordships’ House. We are rightly wary of challenging the will of the elected House but we are charged with a duty to ensure that legislation is well scrutinised and as fit for purpose as it can be made. This is particularly the case when a general election is pending and the temptations facing elected politicians are so very great. Our role is not necessarily to say no, but to give space for pause and reflection. If ever there was an area where cross-party consensus was desirable, it is long-term care. There is a parallel here with pensions, which for years were bedevilled by party conflict but have now fortunately been resolved in the wake of the Adair Turner commission. If people are to plan for their future, they need to know where they stand—not for today, not for tomorrow, but for decades to come. If some of the most vulnerable people in society are to be protected, there has to be clarity and consistency—not for today, not for tomorrow, but for decades ahead.
I am sure I share a part of the blame for this, but progress towards such a consensus has been slow, dating back to the division in the royal commission, chaired by the noble Lord, Lord Sutherland, on which I and my noble friend Lord Joffe sat. Milestones along the way included the Wanless report in 2006 and, notably—I have said how much I support it—the Green Paper published by the Government. Hope was there; a route map to a consensus solution was there; but the Prime Minister chose at his party conference to tear it up.
Everybody who knows anything about long-term care knows that it needs more money. The 2 per cent real increase in budgets being provided by the Government is not enough to cope with the ageing of the population, let alone to provide the better services that older people deserve—that goes just as much, if not more, for disabled people. If the Bill provided a decent sum of money—perhaps not £670 million—to improve care services, no one would cheer more loudly than me and its other critics. However, we are not getting more care; we are getting free care. As the Government’s own impact assessment for the Bill shows, that will benefit the wealthiest among older people and not the less wealthy.
I shall say a word in supplement to what my noble friend Lord Warner said about Scotland, which has adopted an experiment in free personal care, including free personal care at home. I am aware that whenever I refer to this the noble Lord, Lord Sutherland of Houndwood, whom I greatly respect, rebukes me for getting it wrong, so, rather than quote myself, I shall quote two independent researchers, Margaret and Jim Cuthbert, members of the Public Interest Research Network at the University of Strathclyde, writing in Public Finance magazine. They confirm the figure given by my noble friend Lord Warner, showing that the cost in Scotland has doubled. They note a further fact about Scotland: that it is the cost of care at home that has gone through the roof, not the cost of care in residential homes. Taking account of the danger that, because of the Bill, people will choose to come out of residential homes and stay in their own homes, they expect that the cost in England will rise from £580 million in the first full year to £1.73 billion five years later. The cost will have trebled and it may treble again. There is no easy way to stop that cost exploding, this at a time of the most difficult fiscal retrenchment.
The researchers refer to the unintended consequences in Scotland; namely, that those who get a little help with lighting the fire or getting groceries have had their services squeezed to pay for free care. Expenditure of this kind has fallen 24 per cent in the past two years despite the rising elderly population. I could go on. It is a fiasco for Scotland, which the Prime Minister’s Government now want to repeat for England.
Can we please call a truce on saying that the Bill will be paid for through efficiency savings? Local government and central government have eye-watering efficiency savings to make already. If Ministers think that, every time they dream up a new policy which they think could win some support, they can wave a magic wand called “efficiency savings” and the money will come flowing into the Exchequer, and the money tree will blossom in the Department of Health, they are talking complete rubbish. This Bill, if we allow it to go through in its present form, will mean increases in taxation or cuts in services or both, and that at a time when we are already going to get increases in taxes or cuts in services or both to deal with the nation’s fiscal crisis. I ask the Government, if they have a shred of honesty left about them any more, to come clean about the cuts that will follow from this Bill and not pretend that, somehow or other, the money that Gordon Brown wants will drop from this tree in the Department of Health.
Some noble Lords may say, “Yes, it is costly, but there is a price for fairness; these people need fair treatment”, and, of course, I agree with that. I shall therefore outline for noble Lords the fairness encapsulated in the Bill. Councils will have to spend far more on care, so they will have to intensify what they are already doing: cutting back, as they have in Scotland, on the little bit of care that people need to stay fit and healthy in their own homes in favour of concentrating resources on those with the greatest care needs. Is that fair?
Let us look at the people the Government are helping. There comes a time when people with the greatest care needs such as those with advanced dementia and so on reach a point where care at home is no longer an option, certainly not an affordable one when 24-hour care is required, and they need to go into a care home. On that day—and for many it is the saddest day of their lives—they will find that not only do they have to leave their home, they have to dig into their pockets to pay the full cost of the care they are moving into. Is that fair? What of families who find themselves torn between the desire to do the right thing by mum and the fact that if they do—by letting her go into a care home when she needs to—their inheritance is going to be blown away? Is that fair? What of local councils that want to respect the rights of people to remain in their homes wherever possible, but know that if they can get them to go into a care home, their care will be paid for by themselves as individuals and not by the council? Is that fair? What of the hard-pressed taxpayer who will have to pay for all this? Is that fair, when the money will go largely to benefit better-off old people in the last years of their lives? There may be arguments for this Bill, although I find it difficult to discern them, but fairness does not seem to me to be among them.
I referred earlier to the fact that I have spent 38 years in and around the Houses of Parliament. For two of those years I had the great privilege of working as a lowly adviser to James Callaghan, whom many noble Lords will remember in this House, at No. 10. Many of your Lordships will also remember the winter of discontent, even if many outside this place have forgotten it, and the Government’s appalling poll ratings with an election coming near. The Government were facing a vote of no-confidence in the Commons. We advisers cobbled together a scheme whereby we could win that vote with the support of the Ulster Unionists—at a price. It was £80 million to provide a gas pipeline under the Irish Sea. Rather pleased with ourselves, we put it to Jim. His response—he put it bluntly so I will paraphrase—was that he was not going to do something contrary to the national interest in order to try to get his party out of a hole. I know what would have happened to any aide who had dared to suggest to Jim Callaghan that he should adopt the policy encapsulated in the Bill before the House today as his election loss leader.
My Lords, I thank the Minister for explaining the Bill. Having recently heard the Secretary of State for Health, Andy Burnham, speak to Cross-Bench Peers about this Bill, I have no doubt of his genuine wish to see this legislation help those most in need of care. He told us that the care his own mother had received was far from ideal.
My husband was ill for many years as the result of strokes, Parkinson’s disease, diabetes and, eventually, a cancerous tumour. I can assure your Lordships that care at home is very expensive and has to be well organised, reliable and tailor-made for the individual. My husband’s wish, like that of many people, was to live at home. At the end of his life, we had a traumatic time when the out-of-hours doctors over the weekend let us down. Also, we could not set up a drip to give him antibiotics as he had a problem with swallowing. He died in the A&E department of a local hospital which could not retrieve his medical records as it was a Sunday. By that time, pneumonia had taken hold. Community care for people with long-term conditions has a long way to go to make it better and safe across the country, as it is now.
With our personal experiences, it is not surprising that Andy Burnham and I feel that the present system should be made much better, but I have several queries relating to the Bill before us today. First, what will reablement consist of and how will it be given to a person in their own home? If a person is suffering from Parkinson’s disease, for example, they may need physiotherapy, speech therapy and occupational therapy. They will also need their drugs monitored. If their home is in a rural location, it will be very expensive in terms of the time of those professionals travelling from place to place. There can be long waiting lists for speech therapists, for example; how will the social services obtain the necessary staff? Reliable assessments can be difficult when people are elderly, frail and disabled. They can have good days and bad days.
I have had personal experience with the North Yorkshire wheelchair service. Equipment can be vital for disabled people, yet communication in that area is appalling. When I tried to make contact last week, the only people in the office were a secretary and a volunteer. Pressure sores, which can be very serious, are estimated to cost the country several billion pounds a year, yet the wheelchair service, which supplies wheelchair cushions for prevention of pressure, is known as a Cinderella service. If the Government could make it efficient and quick, with staff who knew what each individual patient needed, much aggro and waste could be saved. This is one reason why I have my doubts whether the aspirations of the Bill will be distributed fairly across the country. All existing services should be made better first, or it will still be a postcode lottery.
Secondly, the Bill seems to be concerned only with very severely affected people. Does the Minister not realise that sometimes a little help can make the difference of enabling people to stay in their own home? There needs to be far more flexibility. What will happen if only the severely affected people are helped? This will be unfair and impractical.
Thirdly, who will do the assessments? Will there be a right of appeal? All Bills of this nature should have a clear definition so that it is transparent who will benefit from free personal care, otherwise there will be much dissatisfaction and an even greater postcode lottery. Parkinson’s is a long-term condition, and many people would benefit from preventive measures such as therapy services, aids and equipment, long before they develop critical levels of need. They would like to see this type of support extended to all who need it. They are also concerned that the process described in the consultation document on regulations and guidance is overbureaucratic, requiring people to undergo a period of intensive support before their assessment, followed by an assessment of their needs and then a separate assessment of their personal care needs. A three-stage process would be prone to waiting lists and confusion. It is essential that the process is as streamlined as possible. How long is the estimated time of the whole process before a decision is made for each individual once they have been assessed?
The Parkinson’s Disease Society recently published the results of its largest ever survey of its members and found that one in four needed personal care services, but one in five was not receiving it. Also, their needs included home helps, house adaptations, equipment and medical expertise. It is evident that social care is drastically underfunded, and more help in the home is welcome, but the concern is about where the new money is coming from. I have heard that it may be coming from research—but which research?
We desperately need more medical research in many fields—to mention just one, high-risk neuroblastoma, an aggressive cancer in young children. It is a devastating condition for the whole family as it is rare and difficult to diagnose. Much more research is vital at this very moment. One does not want to see the Personal Care at Home Bill taking much-needed research money. Somehow the money must be found without robbing Peter to pay Paul.
There is no doubt that more specialist nurses and therapists will be needed if assessments are to be correct. As many of these conditions are neurologically based, the UK desperately needs more neurologists. I was told recently that the UK ranks alongside Albania in the percentage of neurologists to patients. We need more support for the centres of excellence dealing with these patients, who are often difficult to diagnose and need their drugs monitoring by experts. They also need personal care at home.
The Bill may be short but the implications are huge. It needs careful consideration and cannot be done on the cheap, otherwise many mistakes will be made and there will be many disappointed people.
My Lords, I welcome the Bill. For too long we have neglected the care particularly of elderly people but also of the disabled of all ages. This is a great step towards the introduction of a national care service. It guarantees free personal care at home for the most seriously disadvantaged. We are promised a White Paper on the broader issues in the next few weeks.
I am sure that the Bill is also welcomed by carers. I have been a carer myself. I know that personal care at home is what most of the long-term ill want. Few want to go into a care home. In my own family, I had to promise my mother when she was ill in hospital that she would not be sent to a care home; she wanted to go back to her own home as soon as she possibly could. The same was true of my husband, who was in need of personal care in his last years. In his case, I approached the local authority because I felt that I needed assistance. Someone came to see me. I pointed out to her that we had at that time a scheme entitled care in the community and there was an obligation to assist people in my situation. “Yes,” she said, “but it is within available resources. Our resources here are limited, so we’d be obliged if you would do the best you can for yourself”. I was willing to pay but they did not have people to do the work, so I did help myself. A neighbour recommended a local woman who had caring experience. I saw her and arranged to pay her. She came every day, and together we looked after my husband until he became too ill and had to go into hospital, where sadly he died a few days later. I tell this story because I think local authorities must have the requisite resources to provide the services envisaged in the Bill—not just money, but also people.
There is also a need for better interaction between the services available and information for families. This is important for people who, perhaps later in life, find that they are faced with having to care for a partner or a relative. I recall being phoned by an old friend whose wife’s condition had worsened. He was really quite desperate: “I don’t know what to do”, he said. I was able to give him some advice, which he took, and I am glad that in those circumstances the local authority has been very helpful, and assistance is being provided to an ageing woman who has a spinal disease and is immobile, and is also blind.
With this Bill, which I have said before is a first step, the Government are ultimately offering us a national service which will be able to ensure that people requiring care can receive it in their homes, plus help for them to be as independent as possible. Savings will be made because fewer people will require residential care.
Care homes are desperately expensive. They are not always of as high a standard as many would like; there have been reports to that effect in recent years. Insurance schemes are currently being advertised so that people of modest incomes can afford such care should they ever need it. Many are worried that this may mean selling their homes. Local authorities only pay for residential care in cases of absolute poverty, and then at the lowest level they can find. The Government believe that arranging for people to receive care in their own homes will be very much cheaper, as well as being much better for the vulnerable people concerned.
Of course, there has been some opposition to the Bill—we have heard some of it this afternoon—mainly on grounds of possible cost. However, we should be prepared to accept the obligation involved in the care of disadvantaged and vulnerable people. This is a first step towards a new national scheme, and it is directed at the care of those most in need. Issues about eligibility have been raised, notably by the Local Government Association. No doubt this is a matter that could be further explored; the LGA believes that the number of reassessments is likely to increase, as people who have been provided with care by unpaid family carers will come back into the care system for free. The eligibility system, it says, will increase the work of social care staff, as decisions will have to be taken as to who is and is not eligible for free personal care. No doubt the Minister will respond to that in her reply.
These comments from the LGA highlight how much we rely on family carers providing all the work involved for nothing. I cannot help feeling that this is a bit of an imposition. We know what a drain this can be on family resources. It is not surprising that carers’ organisations fully support the Bill, but there is far too much reliance throughout the system on what families are able to do.
I recall that when I was in hospital following an operation some years ago, the floor manager came to see me to tell me that I was going out the next day. When I protested that I was a widow living on my own, and would be unable to cope if I left hospital so soon, her immediate reaction was, “Haven’t you any relatives?” I responded that none lived near. She asked me who lived nearest, and I said the nearest lived in Wiltshire—I live in London. She told me she could let me have another day and I could phone my relatives in Wiltshire and get them to collect me. I was able to do that, but many older people live entirely on their own with no relatives able to assist.
We should not base our care services on the assumption that relatives can always be available to provide help. This is increasingly less likely. Family members no longer live close together. The Government’s Bill recognises that, and attempts to deal with it. It is a first step towards providing social care, and I fully support what the Government are endeavouring to do in this much neglected area.
I oppose the amendment: it will simply delay the Bill. We know what many organisations think, because they have already told us. Many of the objections, as we know, seem to be about cost. I believe that we should simply get on with the proposals outlined in the Bill; and I welcome the Bill.
My Lords, I declare an interest as president of the Local Government Association—I here express support for amendments to the Bill that the LGA will be promoting but which time does not permit me to address now—as chair of the All-Party Parliamentary Group on Housing and Care for Older People and chair of the Hanover Housing Association, the country's largest provider of extra- care housing for older people. At this stage of the Bill, I must confine my remarks to my specialist subject of housing.
The Personal Care at Home Bill is predicated on the home being suitable for high-level care to be delivered there. Regrettably, the design and/or construction of many homes makes them quite unsuitable for those with the highest care needs. If you need help with washing, toileting, dressing and so forth, you are likely to need a home that is highly accessible. There must be no steps to the front door that become hazardous in icy weather and which are impossible for anyone with a Zimmer frame let alone a wheelchair, and no inadequate heating systems, poor insulation or huge fuel bills that can all render a property too cold or damp for a frailer occupier. Personal care at home is not a realistic proposition in a house with no downstairs bathroom where the recipient of care has to crawl or be carried upstairs.
If the design or condition of the property makes it impossible for someone with care needs to stay there, a move to residential care can become an expensive and usually unpopular necessity, so entirely commendable efforts to support personal care at home must start with an assessment of whether the home in question rules that out as a practical proposition. Of course, the ideal may well be a move to a well designed, light, bright, fully accessible and adaptable, highly energy-efficient apartment with care available if and when it is needed. Such places are far more common on the European mainland, as I saw in the summer when visiting Sweden, Switzerland, the Netherlands, Denmark and Germany as chair of the governmental Housing our Ageing Population Panel for Innovation—HAPPI for short.
We have some excellent examples in the UK, including high-quality extra-care apartments where personal care is on tap as required, and a few retirement villages that can also supply a range of health, fitness and social facilities. I am grateful to the noble Baroness, Lady Gardner, for speaking eloquently on the value of building excellent retirement housing for sale or rent thereby helping younger families by freeing up underoccupied housing.
However, for the great majority of older people it will be by adapting their existing accommodation that personal care at home becomes feasible—such as adding a downstairs bathroom, putting in handrails and easy-to-turn taps, better heating, emergency call systems to summon help, stairlifts and so on. Because we know that the cost of adaptations in these cases can be repaid by savings to the NHS budget, switching more resources from health is well worth while.
Andy Burnham, the Secretary of State for Health, talks rightly of joined-up thinking and integration of providers and provision of health and care, but the third leg to the stool, housing, must also be addressed. Of the £670 million rather loosely estimated as needed to fund the Bill’s measures, I note that £130 million is to be set aside for reablement, which is excellent work in helping people, including some of those leaving hospitals and residential care establishments, to live at home. I am told that the pot of funding incorporates something for home adaptations, including installing assistive technology with sensors to monitor those, for example, with early dementia. But I note that the calculation of £130 million is based on each of 130,000 recipients getting £1,000, equating to 30 hours of specialist home care.
On the face of it, that leaves no room for any spending on the home itself and without any such spending there will be considerable difficulty in implementing the Bill. My plea, therefore, is for the third leg of the stool—housing as well as health and social care—to receive recognition in the Bill, with proper assessment of the suitability of the home as well as of the individual and with funding for home adaptations, perhaps switched from the health budget, where these are necessary. After all, it cannot be too much to expect the Bill to address housing concerns when it has the word “home” in its title.
My Lords, I was a member of the Royal Commission on Long-Term Care for the Elderly, which reported in 1999, and with my noble friend Lord Lipsey, co-authored the minority report of that commission in which we opposed the case made by the majority for free personal care for all, financed from taxation. The opposition came from us despite our high regard for the chairman of the commission, the noble Lord, Lord Sutherland, and other members of the commission.
While we were naturally attracted by the concept of free personal care for all who needed it, the rationale of our opposition was that, having regard to the constraints on government expenditure, all available funds should be spent on improving the quality and range of care of those who could not afford to pay for it rather than to provide free care for those who could afford it. I emphasise to the noble Baroness, Lady Campbell, that this opposition to the Bill has nothing to do with opposing free personal home care, but everything to do with the equitable allocation of available resources for all those who need such care.
After the commission reported, the Government agreed with our minority approach and in a statement to the House on 2 July 2002, my noble friend Lord Hunt of Kings Heath, then Parliamentary Under-Secretary at the Department of Health, said in rejecting the recommendation of the majority of the commission on this view:
“We chose a different course because we believed that if we instituted free personal care, we should not produce a single extra service as a result but would benefit many better-off people”.—[Official Report, 2/7/02; col. 123.]
That has been the policy of the Government for the past 10 years and it is difficult to understand why at this stage government policy is being changed.
When in July last year the Government published for consultation their Green Paper Shaping the Future of Care Together, which was to be followed this year, after consultation, by a White Paper, it seemed that a carefully considered and appropriate process was being followed by the Government to determine future strategy and funding for such care, which in practice covers a wide-ranging, complex and interlocking set of issues. Against that background, the Bill before the House, which piecemeal addresses the single issue of funding free personal care at home for those who can afford to pay for it, cannot seriously be addressed without taking account of the funding for other interrelated parts of social care.
The Green Paper considered in great detail the various funding options for social care, and until a government decision is made on which option is to be followed, it is irrational to decide on additional funding for extending free personal care. Indeed, if the funding option for care finally chosen by the Government is insurance, which is one of the three recommended options in the Green Paper, there will be no purpose whatever in having put in place the legislation proposed by the Bill, which seeks to make it free.
The failure of the Bill to be set in the context of a holistic policy of social care will create inconsistency in an area where none exists at the moment, leading to a number of perverse incentives. Presently, people who can afford to pay for care are obliged to do so both for care at home and in care homes. Making home care free will create an incentive to demand such care even where it may not be in the best interests of the individual.
Malcolm Johnson, Visiting Professor of Gerontology and End-of-Life Care at the University of Bath and Emeritus Professor of Health and Social Care at Bristol University, has worked on these issues for 35 years. His research concludes that for old and often sick people towards the end of their lives, going into a care home is often not the worst option. He points out that the majority of such people—some two-thirds—are women living alone. Their social networks will have been eroded, including by the death of contemporaries. They are unlikely to have family members living close enough or willing to visit daily. They may be blind, have lost their hearing, be incontinent singly or doubly, or have lost mobility. Frequently they will suffer from two or more of those disabilities.
Public services typically offer these people little more than six hours of care a week, and nothing at weekends. For such people life is isolated, consisting of large chunks of time sitting around, perhaps in physical and often in mental discomfort, waiting for carers who may or may not turn up on time. One could reasonably conclude from this research that it would be in the interests of some elderly people to be provided with free care in care homes rather than free care at their homes. This issue needs to be considered as part of a coherent care policy.
Other perverse incentives arise from the Government’s funding proposals. I will not dwell on the injection of significant additional funding by the Government at a time when their own funding is under such pressure, as so incisively analysed by the noble Lords, Lord Warner and Lord Lipsey. Rather I shall focus on the proposal partially to refund the cost by relying on efficiency savings from local authorities. Many cash-strapped local authorities will be unlikely to find these savings and will resort to perverse incentives such as diverting those with the highest need into means-tested residential care, increasing charges for non-personal care, or limiting free care to those with the most severe needs, thereby denying access to individuals with moderate or in some cases substantial care needs.
Previous experience also suggests that some of these local authorities will seek to make cost savings by decreasing the fees they pay to independent care providers, which provide 80 per cent of care homes for patients. This in turn will impact adversely on their lower-paid workforces, where there is already an annual staff turnover of 24 per cent. This will adversely affect the quality of care that the elderly folk in these homes receive.
For these and all the reasons raised by noble Lords who have already spoken, in particular in the eloquent address by the right reverend Prelate the Bishop of Norwich, it would damage the Government’s reputation for responsible legislation to proceed with a Bill on an issue that they put out for consultation before the conclusion of that consultation process and which fails to take account of their own overall policy on social care—yet to be determined. I urge the Government not to proceed with this Bill.
My Lords, I come at this Bill as a doctor who has for some 30 years worked in the community as a specialist with older people. I feel passionately about the serious inequities between the provision of health and social care and the seriously unjust system we have at the moment, so you would probably think that I would like this Bill. I am also quite supportive of the policy objective to allow more people to remain in their own home for as long as possible and to support them with adequate personal care there—although I take to heart the point of the noble Lord, Lord Best, about the appropriateness of the home circumstances.
I collaborated in a good deal of research with the government-funded Personal Social Services Research Unit—the PSSRU—over many years. More than 20 years ago we demonstrated that the policy objectives of this Bill were feasible even for the most heavily dependent, if—I stress “if”— the appropriate personal case management was applied flexibly to each case and if there were real choices available. This is a good moment to pay tribute to the fantastic evaluative research that PSSRU does. However, it has always been careful to point out that fidelity to a successful model is important in getting the right outcome. This Bill is based on no such evaluative project. As the noble Baroness, Lady Gardner of Parkes, and the noble Lord, Lord Lispey, said, it is a piece of electioneering, presented at party conference as something that would rally support. Most older people’s organisations naturally support this Bill; after all, who in their right mind would turn down more money to enable the most dependent to stay in their own home?
Yet this is a horrible Bill. It is socially divisive, bureaucratically retrograde, provides financial incentives to choose one sort of care when another might be preferable, moves money from the most financially disadvantaged to the wealthier sections of society and will be a nightmare to implement. Instead of using this opportunity to develop an innovative state/public and personal partnership approach to the business of personal care, the Government have stepped in during the process of their evaluation of the Green Paper and rejected the development of a realistic and practical formula in the interests of headline popularity. As I say, they have not even finished the consultation on the Green Paper which carefully outlined a whole range of options around which we could build a political consensus.
In the small print of the modelling exercise paper on the costs of this Bill, PSSRU has itself hedged it round with some caveats. The modelling exercise depends on choosing exactly the right levels of assessment of activities of daily living, which I will come on to. I expect that any of your Lordships will have looked at the proposed scheme of assessment which will determine who gets the jackpot and who does not. It looks just like the Poor Law scheme of 1834 to determine the deserving and undeserving poor. In this case we will have a magic lift-off point. If you have four prescribed activities of daily living down then you are eligible; if you have only three activities of daily living down, sorry, but you will not be. As the noble Baroness, Lady Campbell, pointed out, this sort of deficit assessment is a truly divisive and horrible tool.
Apparently there will be a nationally agreed assessment tool, although who knows who will administer it? I suspect it will be the same workforce which does the current fact assessments. Can anyone remember what happened in the last attempt to devise a nationally agreed joint single assessment tool between the NHS and local authorities? It was a nightmare, taking three years to agree and then implement. Does no one remember the eligibility criteria for NHS continuing care? I used to see all the appeals against the final judgments of the tribunals on the contested cases in the north-east London area. Most of the cases were so arbitrarily unfair, particularly against people with dementia, that it made one weep. This Bill will have exactly the same effect.
Let us turn to these activities of daily living. The PSSRU modelling is all based around these assessments. First you have to go through the fair access to care assessment, as now, and then you are subject to the reablement services if possible. I do not know what they are, but I have a pretty good idea. This will be a tool for delay and procrastination, of course, but it has a rationale. Then the ADLs will be assessed. This is crucial. I will mention them all, as they are listed; it is not so much what they contain as what they leave out that is important. The ADLs are eating and drinking, toileting, washing/bathing, dressing, oral care, skin and hair care, plus another, which is the prompting and supervision of a person who is unable to make the decision for themselves about the ADLs on the list. The list excludes cleaning, housework, shopping, laundry, transport, sitting services and so on.
I am detailing these because, although it is true that the number of ADLs that people are unable to do correlates well at population level with demand for care services, they are not good at individual level. A body of research, largely from the United States, has shown how inappropriate these eligibility criteria can be for many people with dementia. For example, a patient with profound Lewy body-type dementia can suffer from serious behavioural disturbance, aggressive and deluded outbursts and wandering and can need 24-hour supervision from relatives who are effectively imprisoned in their home and yet they might not be disabled to the point of having more than one or two activities of daily living points on this scale. What happens in a case like this? It has to be interpreted by very sophisticated, well trained assessors, who are willing to use their common sense and to fudge in order to get people into the criteria. Just as hundreds of appeals are upheld every year against mean-minded assessments of night and day rate attendance allowance, this assessment will also generate hundreds of appeals, because the system will be a bureaucratic nightmare and a profound letdown for many who may assume that they will be eligible.
The financial incentive to stay put and not go into residential care will, I believe, be a serious and insuperable difficulty. Families will understand very quickly how to maximise their future inheritance. While it is usually right for people to stay at home, it is sometimes right, as we heard from many contributors today, for people to enter residential care, especially when dementia is advanced. There should be as little distinction as possible in financial burden for relatives between care at home and residential care. Without that, decisions are skewed away from choice made on clinical and social grounds to those made on financial grounds. This Bill fails on these criteria.
Finally, I turn to matters of social equity. My objections are not simply on the large financial costs. Heavens, I have been quite a psychopath in my time about winkling out of social services and healthcare more than my patients’ fair share of the budget, so I have no guilt if I winkle out of the Government more than a fair share for this very needy cause. However, I believe that the Bill undermines the mechanisms by which we can reach a consensus on meeting a grave and growing social issue. We must find some fair middle way of funding care that is neither old-fashioned means-testing nor frankly unaffordable universal coverage. We are in a big enough mess with the NHS, which inevitably will have to be addressed at some point. Providing public funds, irrespective of assets and income, for all those living at home will transfer wealth to better-off members of society and their heirs at the expense of those most in need. Already we are aware that many people who receive attendance allowance simply do not need it. Such a proposal as the one in the Bill is extraordinary when the Government are groping towards a welfare system that promotes social equity.
We need a partnership between public and private sectors. That was made clear by Wanless and by extensive research by Julian Le Grand and others and it was ably outlined today by the noble Lords, Lord Lipsey, Lord Warner and Lord Joffe. Elderly people increasingly want the dignity of choosing for themselves the type of care that they receive by buying it rather than by having assessed care packages. That is the brilliance of the Government’s approach to personal care funding, whereby people can buy their own. Already a third of elderly people pay for their own care and it is estimated that this will rise to more than a half over the next 20 years. However, not a single penny of this extra state funding would go to improving standards of care for elderly people. The Bill will transfer vast sums of money out of the public purse to those who are currently deemed to be able to afford their own care. Since very little of the preserved assets will be spent by disabled elderly people themselves, the state will secure for elderly people’s heirs a better inheritance for the future. Is that the objective? I think not.
It is very hard to hope that this Bill will fall, because undoubtedly some older people with profound difficulties will be helped in the short term. However, I think that the funding will rapidly come to an end, as the Bill is not practical. I fear that this sticking-plaster solution will act as a deterrent to the creation of a more comprehensive solution to our profound problem. A Bill with this title is needed, but this is not it. If the noble Lord, Lord Warner, presses his amendment this evening, I shall support him.
My Lords, I declare an interest as vice-president of Carers UK. I want to give a carers’ perspective on this Bill, but let me be clear about what I mean when I use the word “carer”, as there is an increasing tendency to conflate it to mean both the families, including the neighbours and other informal carers who provide care free of charge, with what I would properly term “care workers”, or those people who are paid to provide care. I will talk about the informal sector.
This Bill will, for the first time, provide for people who have savings or an asset such as a house to be entitled to free care from the state. As Carers UK has been campaigning for that for many years, naturally I support it. It will help families to meet the costs of care, which can be very high and which contribute to the poverty faced by disabled people and carers. A survey of 1,700 carers in December 2008 found that 66 per cent were spending their own income or savings to pay for care. It also found that 74 per cent of carers were struggling to pay essential utility bills and that, because of the costs of care, 52 per cent were even cutting back on food.
Carers UK research has always found that carers want to care for their elderly and disabled relatives at home whenever possible. They also want to ensure that the person for whom they care gets the best possible care, which usually means looking after them at home, as that is what both parties want. This Bill will support those wishes. However, realising the desire for people to receive care in their own home should not be based on the assumption that families will provide the levels of care, which may be inappropriate given their circumstances or detrimental to their health or well-being. We need clarity about the expectations placed on carers, as the noble Baroness, Lady Gardner, reminded us.
One in five carers is currently giving up paid employment in order to care, so removing one element of the cost that they face will help families to manage their finances and remove some of the stress of caring. Carers, of course, have strong views about charging for care. They want an element of care to be free of charge. As I said, Carers UK has been campaigning for this since the introduction of community care in 1993. Early research in 1995 found that, as a result of councils increasing charges, one in four carers and their families were experiencing hardship and that around one in seven were cancelling services. In the 1995 research, three-quarters of carers surveyed thought that a guaranteed package of services should be free irrespective of income. I am pleased to say that that research was carried out for us by the noble Lord, Lord Warner, who said that,
“by the year 2000, all carers providing over 35 hours per week should have access to a respite care programme which provides regular weekly and some weekend breaks together with an annual holiday”.
He costed this at £1.4 billion per year and said that,
“public expenditure of this kind looks a good bargain compared with the alternative of letting carers collapse and taking those they care for into residential accommodation at a cost to the public purse that would put 20p on income tax”.
He suggested that guaranteed care should be free of charge to carers. The report was very influential and widely circulated at the time. We were very grateful to the noble Lord, Lord Warner.
As we know, criticisms have been made of this Bill. The debate in the House of Commons suggested that families would give up caring in order to receive free care. The evidence published by the Joseph Rowntree Foundation two years ago, after the implementation of the model in Scotland, found very little evidence of this. Most families continued to provide personal care because this is what they preferred to do. The modelling provided by the Government mirrors that.
We consistently underestimate the willingness of families to provide care and overestimate their desire to get out of the caring situation, however hard that situation may be. Carers are the absolute antithesis of what people are wont to call “broken Britain”, and politicians would do well to remember that.
To give noble Lords a case-study, Alan has cared for his wife for many years since she had a stroke. He is now in his late 60s. They have applied for continuing care, but have been turned down, and they have spent down their savings to pay for care. The wife is severely disabled—she needs to be moved several times in bed, and regularly stops breathing and needs to be resuscitated. She needs help with all forms of personal care. Alan says, “if I had got free personal care years ago, it would have made such a difference to my life. I am sick of poor quality care and having to pay for it as well”.
The Government have said that this Bill is a stepping stone towards the longer term goal of a national care service and I certainly welcome that vision. This Bill is by no means a solution to the problems that we face with social care—I am the first to admit that—but it is a step along the way. The view that I have taken for years about changes to the social care system is that change should be incremental, not revolutionary, and should come—salami-like—in small, sometimes very small, slices. That was the case with all the legislation for carers. The first carers Act in 1995 was not what I or carers wanted, but it was step along the way. It could be used as a launching pad to argue for other, greater rights for carers, and that has proved to be the case.
I know that the White Paper on social care is expected soon. It will be important that the Government look in that at the wider picture, and not just at alleviating stress at the heaviest end of need. For example, would support put in earlier mean that fewer carers would break down and that families would thereby be enabled to go on caring for longer? Would reablement and more independence for older people make it easier for their families to continue in paid work? People giving up paid work to care for a relative is a cost to the economy and to business which we can ill afford at the moment. Can the Minister assure me that the White Paper will look at the wider economic impact for families, rather than merely at expenditure with regard to residential and NHS costs?
There is no doubt that carers have concerns about the Bill. The evidence from some councils is that they are poorly assessing disabled and older people by assuming that families will provide care. This is against the current legislation, but it is also short-sighted, since it can lead to families struggling without appropriate help, as I have already said. Most carers want to continue to provide care and will continue to do so. However, they do not wish to be taken for granted and they do want their needs and support to be taken into account when looking at what services will be provided to the person being cared for.
Can the Minister assure me that the Government will ensure that guidance on this Bill clearly states that local authorities should not assume carers’ willingness and ability to care, but that they should check with them that they are able to do this? Will the Government stress in their guidance that the sustainability of the caring role must be carefully considered in assessment? If the carer is at risk of breakdown because insufficient support is provided, this will result in enormous costs for several people rather than limited costs for a few. I also seek assurances from the Government that if this Bill becomes law its operation will be regularly reviewed.
Finally, I remind your Lordships that all the significant charities and third sector organisations supporting carers and older people have issued statements in support of this Bill. They said:
“Care charges for those with critical needs are often a crippling cost to families already struggling with the financial impacts of illness or disability. This Bill would mark an historic end to means-testing and charging for some of the most vulnerable people in our society to provide for their most basic care needs. The older and disabled people, families and carers we represent have long called for an end to charging for care services—and”,
“would not forget if this opportunity was missed to end unfair charges for those most in need.”
There is no doubt, they go on, that,
“the care and support system is in need of a complete overhaul, and this Bill does not come close to solving the inequalities, inconsistencies and profound funding challenges”,
which we face.
“However the principles set out in this Bill are a vital first step in reforming social care”.
I hope your Lordships will remember that.
My Lords, I confess to a number of interests. I am president of Alzheimer Scotland and of Scottish Care, and I do some work with the English Community Care Association.
That being said, some of us have waited 10 long years. We looked for a response from the Government to the royal commission report on The Funding of Long-Term Care for the Elderly, and response had we little. Indeed, it was so little that a rump of Members, after five years, sent a reminder to the Government. The message of the reminder was, generously I thought, “Well, you don’t like what we recommended—have you an alternative?” They had, after a fashion, but I characterise it as follows: it promoted a postcode lottery; there were thousands of complaints to the health ombudsman, who in key cases ruled against the Government; resulting compensation payments ran into hundreds of millions of pounds; there was much articulated discontent; and for many real, often silent, suffering and puzzlement because they could not understand and work with a far too complex and unfair system. There was, I would suggest, no recognisable policy, but just a series of unfortunate happenings.
As a result, one has reduced hopes and expectations. Some of us had hoped, hearing that a Bill was coming, that we might at least have half a loaf; better than no loaf at all, as the old saying is. Perhaps the Wanless report offered more than that, but it was turned aside. However, now we have a Bill, admittedly a short piece—indeed, one might say, a modest piece, something of a morsel, perhaps even a crumb. Unfortunately, no longer a crumb from a rich man’s table, but I shall return to that. What about this morsel? Is it to be rejected, to be postponed until it is stale, and in its staleness nibbled into extinction by the mice rumoured to be invading the Back Benches of this House? What are we to make of this morsel, this crumb, this “legislative opusculum”, as one of my friends put it? In terms of evaluation, I am among those who welcome this morsel, but noble Lords must understand I am a hungry man. I digest the crumbs with alacrity, and I do not want to leave them to go stale for the mice to nibble into extinction.
I hasten to add that the most important feature of this Bill is not on the face of it. I hope that the Minister will speak plainly and put things on the record on the critical element, which is the context and promise the Bill offers of a new direction of travel towards a national care service. I know there are many problems with setting that up—there were problems in setting up the health service—but are they problems to be faced, or to be recounted and the Bill withdrawn prematurely?
I remind the House what a national care service minimally involves. It involves a single point of entry to a system of assessment of need, not to a bureaucracy or clutch of different funds which you might raid if you have expert advice but not if you have not. It involves a single point of entry. When the royal commission sat, this was one of the biggest cries that we heard from those whom we met in large numbers throughout the country. I know that there are dangers—my noble friend Lady Murphy has pointed these out very fairly—but it needs a single set of criteria of eligibility, pointing towards a degree of equity and fairness. Without a single framework, we will be back to a postcode lottery and divisions that we should be fleeing from. Such a service needs a single point of commissioning. I came to realise that this is what all the talk about personalisation of the service means. The person in need of support—the carer—or the person needing care needs to talk to an individual about what is to be commissioned and what the needs are.
Behind this, it needs a single budget—a budget that will reflect that need. That budget will need to be portable so that you can, if necessary, move around the country. This point was made very well by the noble Baroness, Lady Campbell of Surbiton. The provisions made will then follow you, and you will not enter again the morass of renegotiating on five or six different fronts. It is important to treat the needs of older people equitably, with no artificial distinctions set by the way in which we administer the money and care. There are three different sources of funding for care for older people: the health service, local authorities and the Department for Work and Pensions. Are these flowing in the same direction? I have not seen the evidence, but I have seen plenty of contrary evidence. The Government have been unwilling to tackle a single budget. It is too difficult. There has been sucking of teeth up and down Whitehall as the Government say “How could they suggest such a thing?”. I will listen with great interest to what the Minister has to say about what many of us are currently saying to her about the shape of a national care service and its preconditions.
There are plenty of counterarguments; we have heard them all and some are very good. I pay tribute to the noble Lord, Lord Best, who is unduly modest. The sort of schemes being outlined by, for example, the noble Baroness, Lady Gardner of Parkes, are of the type that he was instrumental in putting together when running the Rowntree trust. A very large sum of money—over £20 million, I understand—was invested in creating a care village, effectively, where one could do exactly the sort of thing that the noble Baroness, Lady Gardner, rightly holds up as a good example. The noble Lord knows what he is talking about. What he says about housing is very important; I am completely with him on all of that.
We have heard much about the bad legislative and governmental process. I am no more than a spectator to personal grief within the Labour Party on this. What grief and agony transports between individuals there is a matter for consenting adults in private, rather than in public. Of course the Bill comes from a bad legislative process. Of course it is inadequate. However, it is not the first Bill of which that has been said and doubtless it will not be the last. It must be improved massively—of course it must—but it will not be improved by being put on the back burner. I say to the right reverend Prelate the Bishop of Norwich, who suggested that waiting and considering are important: of course they are. However, we do not all have the biological constitution of Methuselah. We have waited a long time already. Perhaps we would like to see some action that might lead to a policy. There are those who say of such a wait that the amendment that might be tabled is not a wrecking amendment. They have said it in an email that I received, as, no doubt, did the Minister. If I were a cynical man, I would say, “Pull the other one”, but I am not so I will not comment.
Those who argue against the Bill rightly raise questions of affordability. This is not affordable; there is much that we are doing that is not affordable. It is suggested that in Scotland we are talking about affordability again. We have never stopped talking about affordability. It has been a constant discussion and so it should be. However, if we are talking about what is and is not affordable, why do we seem always to start here? We can whip up a headline about the cost of long-term care of the elderly. I give a few alternatives because affordability is often assumed to be within the constraints of these three sources: the National Health Service, local authorities and the Department for Work and Pensions. This country’s financial position transcends that. We should look more broadly at priorities across government, not within artificially constrained government departments.
On affordability, national identity cards are not at the top of my list. These were initially budgeted at perhaps £1 billion to £3 billion but the LSE came up with an estimate of £18 billion. These things are very elastic. There is our current foreign policy and the associated defence costs. I do not suggest that we stop having decent defence, but it is a matter for discussion. Malcolm Rifkind makes that point in the Times today, stating his own conclusion. These are major issues. Are we overextending ourselves or are we not? This should be talked about when we discuss affordability and priorities. The bureaucratic costs, including consultancy in the current health service structures, are massive. Rewards and payment for general practice have escalated without any obvious benefit. I speak as someone who looks for a general practitioner sometimes in vain. The cost of merit increments for consultants is massive for the health service; is it something that we can continue to operate with? I am sorry to any consultants who happen to be present, but it is an issue of affordability. We are talking about priorities. Dare I even add public sector pensions, which doubtless many of us in this Chamber benefit from? Finally, I add to my short list—noble Lords will have their own—an elected House of Lords, which will cost more money but seems to be pushed up various groups’ list of priorities.
Cost is now a matter of priorities across government. That is the one thing that we are learning from the huge financial constraints that we find ourselves under. We cannot opt out and say, “Just a little bit here or a little bit there”. We have to look again. I am in no doubt that the outlook for the next few years is very sombre. It will be a time of real cuts, but we are looking for a national care service and a means of dealing with all the problems that have been paraded around the House today about how we are not serving the needs of the elderly well—and we are not. If we are looking for a solution to that, I suggest that we incorporate the costs of providing for the needs of the elderly in a single budget, covering the health service, the Department for Work and Pensions and local authorities. Then we sit down and ask where the cuts will fall.
At the moment, folk see the rather tall poppy of care of the elderly threatening to grow again and want quickly to slash it and cut it down. It should be incorporated with other matters and then a decision taken. In my view we cannot afford the health service that we have, but when the cuts come—as I believe they will—they should not start with the elderly before looking at the rest. There should be a rounded discussion. I am not asking for false and unsustainable prioritisation of the needs of the elderly; I am asking for them simply to be taken into the same pot. However the decision is made, and by whatever form of deliberation, fairness, equity and rationality should lead the discussion.
I did not want to talk about Scotland but I have been goaded, or prompted, into it. I am sorry; I have to do this for just a couple of minutes. I sometimes think that I hear the following, adapted from Animal Farm: Scotland bad in the area of care for the elderly, England good. Perhaps that is occasionally permissible and, sometimes, I regret to say, justifiable in Wembley or Twickenham, but is it fair to give that impression of what is happening in Scotland? There is not a sense of national catastrophe, as there has been in the hysterical language that we have heard. The myth is that Scotland is a spendthrift country which has become more profligate since devolution. The fact is that at the time of devolution—and, indeed, 10 years ago in 1999—Scotland spent 16 per cent more per head on public expenditure. In 2009, Scotland still spent 16 per cent more. There has been no escalation as a result of that policy of devolution. Scotland operates within a cash-limited budget. English public expenditure has increased by exactly the same amount—16 per cent. It is true that it starts from a different baseline, but it is more or less true that there has been the same increase for Wales and Northern Ireland. The rate of increased spending is no different in Scotland. The idea of profligacy is not correct.
The reason that Scotland spends more is of course due to the Barnett formula, which, as we have learnt this afternoon, was introduced by a Labour Government who possibly were advised by the noble Lord, Lord Lipsey. If you want to tackle the larger expenditure on the public sector, look at the Barnett formula. I am open to that as a suggestion—indeed, I make it. It would be a very odd policy to say to Scotland, “We’ve got this formula; it’s a bit funny but we are not willing to change it. You get all this extra cash, but you may not spend it on social care for the elderly. You can spend it on anything else that you like”. Scotland lives within cash limits, just as everyone else does. That means that it has to take decisions not to do things that we are going to do down here.
I shall give a good example. Last year, we improved what I can only call the raising of the school leaving age in England. It was suggested that that will cost £750 million in the first year of operation. I bet that that is an underestimate. While it may be something that England can afford, Scotland cannot, because it is spending its money in other ways. There are other aspects of expenditure in Scotland that I could examine, but I shall not because I have used up my time.
This Bill points forward. It is weak, it is inadequate, and it has been presented at the wrong time—it should have been put through 10 years ago—but it is the best crumb that I have, and I am going to live with it. I commend it to noble Lords.
My Lords, like the disability organisations with the main interest in this Bill, I welcome its intention to support severely disabled people to remain living in their own homes and the fact that it highlights the urgent need for a national care service that is fair and sustainable to be established. But, like other noble Lords, I have serious concerns about the perverse incentives contained in the Bill. These have been sufficiently rehearsed and I shall not repeat them. I will, however, cover much the same ground as that referred to by the noble Lord, Lord Best, in his excellent speech. I hope noble Lords will agree that it is worth re-emphasising.
The Bill focuses our attention on providing better help for people with high support needs to be able to remain in their own homes. I greatly welcome that. However, what is notable is the absence of any reference to the adaptation of the home in which the person with high care needs is to be supported in order to live. In my view, any new arrangements to meet the cost of personal care at home must also integrate a system for fast, effective provision of home adaptations. That, at the moment, is sorely lacking in many parts of the country. My noble friend Lady Andrews did a great deal to rectify this situation during her time at the Department for Communities and Local Government with the excellent strategy report, Lifetime Homes, Lifetime Neighbourhoods. That work needs to be built on and fully integrated into the health and social care support available for disabled and older people.
As Care & Repair England points out in its latest report, Time to Adapt, the issue which makes the greatest contribution to enabling independent living for disabled and elderly people for as long as possible, and reducing the cost of their care, is housing adaptations. Not surprisingly, making sure that someone can, for instance, get to and use a bathroom, to wash and go to the loo, is often pivotal in enabling people with high care needs to remain living at home. That is the purpose of the Bill.
Adaptations impact directly on the cost of care because they enable the disabled person to do as much as possible for themselves and they make the giving of personal care much easier for paid staff and unpaid carers. It is in the interest of the best use of public finances, let alone in the interest of the dignity of the individual, that adaptations are fully integrated into the proposed system of free personal care.
The research undertaken by the University of Bristol for the Office for Disability Issues in 2007, entitled Better Outcomes, Lower Costs, set out the evidence for this. It showed that timely adaptations and appropriate equipment can produce direct savings to the public purse in terms of the amount of home care required, hospital admissions and delays in discharge. Adaptations also directly lessen ill health among care givers; for instance, by reducing the numbers of strained backs from lifting. That report also showed how better outcomes for the individual can be achieved with the same level of expenditure. For example, if for the same amount of money a disabled person can have frequent visits by a carer to help them to use the loo and wash, or can have an automatic loo and level access shower to use whenever they please, the latter will, for the vast majority of people, be far preferable. In short, if free personal care is to be provided for those with the highest needs, then, in order to make best use of public funds and to ensure that the care at home is of the best possible standard for the individual, housing adaptations have to be an integral part of the assessment and provision that is made.
The Government propose that this Bill is,
“the first step towards setting up a new National Care Service—a simple, fair and affordable care system for everyone”.
This is laudable and in keeping with one of the most broadly welcomed proposals in the social care Green Paper—that of clearly defined, universal entitlement. If the Bill is the first step towards a national care service and a move away from the uncertainty of variable local provision, then steps also need to be taken to create an integrated, health and social care linked national adaptations service. The need for such a service was argued by Sue Adams of Care & Repair England at a recent meeting of the All-Party Group on Housing and Care for Older People, and I am indebted to her for her help.
Currently, disabled and older people face a bewildering array of possible local systems when they need help with urgent home adaptations. While there is indeed a national legislative framework in place defining eligibility for help with adaptations through disabled facilities grants, the degree of flexibility for local housing authorities in the implementation of the framework results in highly variable local delivery. As the Audit Commission noted at the same all-party meeting, while there have been improvements in the provision of assistance with small items of equipment and minor adaptations, larger disabled facilities grant-funded adaptations systems are, in a significant number of authorities, simply not fit for purpose.
Many disabled people have to wait years for adaptations help. The result is not only extra costs to health and social care, but suffering for individuals. Older and disabled people face the undignified situations of living, sleeping and eating in a single room with a commode in the corner and being strip washed in the kitchen. Carers are put at risk by having to carry people upstairs and lift them in and out of bed, when, for a few thousand pounds for a stair lift or hoist, their lives would be transformed.
Changes to the disabled facilities grant system, announced in 2008 and phased in over 2008-10, offered local authorities even greater local flexibility. While this will result in improvements in some areas—the Foundations report, Adapting for a Lifetime, cites a number of positive examples—in other areas, DFG help will decline. The ending of the legal obligation to match government funding for DFG has already resulted in some local authorities reducing their DFG budgets. More are expected to do so in the next financial year, despite the very welcome increase in national grant. The adaptation help that a disabled person can expect will become determined by where they live. This is totally contrary to the aims of increasingly universal provision of personal care at home that this Bill heralds.
While home adaptation is not currently in the Bill as drafted, the Bill could still provide the incentive for reform to remedy the current incoherent pattern of provision—a reform that is urgently needed. I hope that my noble friend the Minister will acknowledge the necessity that, in shaping the future of personal social care, the central role of home adaptations must be integrated into any new systems.
My Lords, I am not sure whether this is a modest or an immodest Bill, but it certainly has much to be modest about. Free personal care at home for those in greatest need sounds like a marvellous idea. As others have said, who could possibly be against that? Yet the moment that you begin to look at what is proposed, it immediately becomes clear that it is not quite what it seems. The more you look at it, the more it becomes clear that it has some quite untoward consequences, which have not been thought through. Although the idea of free personal care at home is initially attractive, I fear that, as enshrined in this Bill, it is overwhelmed by the arguments that have been deployed by the noble Baroness, Lady Murphy, and the noble Lords, Lord Warner, Lord Lipsey, Lord Joffe, and others. It is hard to say anything fresh at this stage of the debate, but perhaps my remarks will come as a handy summary for the Minister before she winds up.
For a start, it is not really free personal care at home for all those who might need it. The Bill introduces a right to free care at home for only a proportion of those whose needs are assessed as critical, because they require help with four or more activities of daily living. Thus, only a small proportion of those who need social care will benefit from the provisions in the Bill. The Bill also provides an entitlement to 30 hours of intensive reablement support over six weeks. What is the relationship of that entitlement to the general right to free care at home introduced by the Bill? For those whose needs are severe enough to put them in line for the free help offered under the Bill, that is hardly intensive. They would certainly need more support, and for longer. The kind of people we are talking of here probably need round-the-clock help; what is offered would barely scratch the surface. What is the position of those who receive reablement support but do not qualify for free personal care after the six weeks are over? Those are just some of the questions about which there needs to be a lot more clarity.
The additional cost of the measure is set to be substantial. On the Government’s reckoning it is £670 million a year, with £420 million to come from NHS budgets and £250 million from local authority efficiency savings. However, as we have heard, ADASS has estimated that double that will be required from local authorities. What will be the effect on NHS and local authority budgets, which may already be helping people to stay in their homes for longer? What will be the effect of funding free personal care at home, for those with the highest need, on services provided to those with moderate or even substantial needs? One possibility is that they could incur the double whammy of having their attendance allowance—even their disability living allowance, if aged under 65—taken away to fund social care generally under the reforms presaged in the Green Paper, and having the level of social care support they receive degraded at the same time. In practice, the money will have to be found, in whole or in part, through service cuts or, possibly, charges. That could further fuel the pressure for an ever more restrictive process of fair access to care services.
What about the practicalities of implementation? The impact assessment accompanying the Bill estimates that at least 70,000 people who currently do not receive formal social care services will be eligible for free personal care from October. The Royal College of Nursing argues that if the changes are to be successful, substantial and immediate investment in community nursing will be necessary—on top of the Government’s estimates that I have already referred to. I suppose that it would say that, but there are worries all the same that, with only nine months until the measures comes into force, there may simply not be sufficient numbers of properly trained social care and nursing staff to deliver the commitment to free personal care in the Bill. The college’s worries on that score would seem to have some force.
The complexity of the assessment process is also a major concern. Once the existing fair access to care services rationing process is combined with the new personalisation arrangements and the personal care at home criteria have been added, the assessment process will consist of six interlocking stages of Byzantine complexity. That is all too likely to lead to confusion among practitioners, and service users will be baffled and alienated by the experience of Kafkaesque bureaucracy. Extremely careful guidance and excellent staff training will be necessary if chaos is to be avoided. The draft guidance issued so far is not reassuring, displaying as it does far too little clarity and precision regarding the assessment process, its multiple stages and the relationship between them.
There also stand to be some very untoward consequences, as we have heard from other speakers in the debate. The impact assessment makes it clear that the wealthiest old people will be the main beneficiaries. Because care in a residential home can be charged for according to the ability to pay, the requirement to provide care at home free will also give local authorities a perverse incentive to pressurise better-off people into going into care homes, where they will contribute to the cost. That could have the effect of forcing people into care homes even when that is not the best thing for them.
Finally, the process is seriously flawed. The Government were in the middle of a consultation on the Green Paper that discussed, inter alia, a national care service, partnership between the state and individuals in paying for the costs of care, and a system of insurance to enable individuals to insure against their care costs. The announcement of free personal care at home for those in greatest need in the middle of that consultation cuts right across it. Indeed, it clashes directly with the Green Paper, since all the options canvassed in it ruled out free care at the expense of the taxpayer. The Government say that this is just a stepping stone or building block on the way to a national care service, but the measures in the Bill are not a subset of the vision set out in the Green Paper. That is really the answer to speakers such as the noble Baroness, Lady Turner of Camden, and others who have welcomed the Bill as a down-payment on implementing a comprehensive and more wide-ranging strategy for social care.
The Government have stated that the policy of free care at home will need to be reviewed after 18 months. We need to be reassured, therefore, that this potentially temporary measure will not adversely impact on the plans for longer-term reform that all parties recognise is needed, and which may help many more social care users, and that those who will benefit from the free care at home provided in the Bill will not lose out following the 18-month review. That may prove a very difficult line to tread.
Only a small proportion of those who need social care will benefit from this Bill. The wealthy will benefit most; funding it will be difficult; and raiding the pots that the Government have fingered will have unpredictable consequences for those who fall outside the immediate scope of the Bill. What is proposed is full of perverse incentives. The Government have hardly begun to get to grips with the problems of implementation and the labyrinthine assessment process will be a nightmare. If that does not constitute a case for the Government to do some serious rethinking, I do not know what does.
My Lords, as we have heard in this most interesting debate, this is a very difficult issue. The Government’s proposals obviously have within them a paradox, which many noble Lords have examined. I think that we all recognise the importance of care at home. However, we should also recognise that it is but one aspect of the precarious journey sometimes known as the “continuum of care” that many elderly or disabled people have to make. Of course, we should note that only 18 per cent of people die at home. Tackling the funding of one part of that continuum and, in effect, privileging one element of the journey will create a multiplicity of problems which I believe will have serious consequences in the years to come.
In speaking on this matter, I should declare an interest as the chair of the Co-operation and Competition Panel of the NHS and chair of the international operations of McKesson, a distributor of health and social care information systems.
I spent 15 years of my life organising care for the elderly in some detail. In that time, it became very clear to me that there were three key issues: first, quality and appropriateness; secondly, choice; and, thirdly, funding. I think we all accept that quality is not negotiable, but it will become a very pressing issue as the current financial pressures start to bite. For that reason, I welcome the proposal to expand the role of the Care Quality Commission in regulating all aspects of elderly care, wherever it is carried out. However, we need to make sure that the frameworks, assessments and regulation are all properly in place before we proceed.
With regard to choice, in 30 years we have come a very long way in offering a range of services for the elderly. One of those has been the growth of home care—letting people stay where they want to—and all the research points to that being the main preference. None the less, as we have heard from many noble Lords, sometimes that is not practical.
However, it seems to me that the most pressing issue remains funding. As my noble friends Lord Joffe and Lord Lipsey said in their seminal note of dissent in the 1999 report of the Royal Commission on Long-Term Care of the Elderly, to which many speakers have referred, the key issue seems to be the balance between what it is reasonable for the state to provide and what it is reasonable for individuals with resources to pay for themselves. That question has been asked, yet it has remained unanswered—at least for these 10 or 11 years. It was therefore very encouraging to see the excellent government Green Paper, Shaping the Future of Care Together, which sought to examine this issue.
Like many, I am concerned that the Government are taking forward this Bill without the benefit of consultation and, in my view, hastily addressing some but not all of the issues of the current system. I know we feel that we should be able to find the money to meet these aspirations but it is worth reflecting for a moment about the amount of money that we have in this system. In this current year, care of the elderly one way or another will total £21 billion. Of that, individuals already find £8 billion and the state £13 billion. Given the demographic projections, and in particular the rise in the over-85 population, it is clear that by 2030 there will be 2.8 million people in that cohort, placing enormous demands on both home care and care delivered in residential settings.
There have been many speculations about what it might put on the standard rate of income tax if the Government were to bear the whole of that burden. Therefore, at a moment when we are facing such financial challenges in the public sector, it is surprising that we should come forward with these plans. Even if, as many have argued—and I have some sympathy for the argument—we could afford to spend that amount of money, would we be able to contain costs going forward at that level? We have heard many arguments, including on the situation in Scotland and so on, but we have to ask a serious question. What is a sustainable level of funding that we can find to take this proposal forward? The suggestion that we can divert people from residential care is one of the great myths and simply defies the demographics that we face.
Therefore, the question of how the cost is shared becomes critical. Those who have to pay for themselves will have to make a choice about meeting care expenses from savings, property or insurance. Various things have appeared in the Green Paper and in the proposals from the Opposition: free care, mutualisation schemes, insurance schemes and so on. However, most of these proposals suffer from perverse incentives. I shall not revisit that as we have already heard a lot about it today, but of course with many of them the whole question of funding remains unanswered—how are we going to pay for this?
Having worked closely with the elderly for many years, I can say that the greatest fear among those who had money was that they would run out of it. Generally people with assets accumulated in their lifetime accept that they need to spend some of those assets on old age. However, we have encouraged people to be prudent, and at the end of their lives people do not want their lifespan to outlast their assets; frankly, it is demeaning.
I shall not dwell on the many alternative schemes that have been proposed and on how to mutualise them, but I was very taken with the proposal in the 1999 royal commission report by my noble friends Lord Joffe and Lord Lipsey that there should be some form of state reinsurance so that people can plan to find the money to cover either home care or residential care.
As many noble Lords have said, in considering how to spend the money, we need to step back and look at the whole picture. Addressing a part of it is not enough. I was very taken with the points made by my noble friend Lady Pitkeathley on supporting carers. The fact is that throughout the western world 70 per cent of all long-term care is provided by informal carers. I do not like the word “informal”; I think it is pejorative. We are talking about people delivering care, and we should look at how to help them more. Those of us who have delivered care personally know the great moments of panic that carers experience when faced with the unpredictable.
The challenge now is to find an equitable funding balance between the individual and the state, and I think that here lies the paradox. On the one hand, I was very taken by the point made by the noble Lord, Lord Sutherland, about the crumb. On the other hand, like many other noble Lords, I was very struck by the problem of having to build an integrated system to avoid the “hand-offs” and perverse incentives which arise from a non-integrated scheme.
Funding for long-term care is the elephant in the room. We are normally told that the best way to eat the elephant is piece by piece, but in this case I think that we have to get a picture of how to deal with the whole elephant. When the Minister replies to the debate, I look forward to hearing how, in forming a view on this, we can strike a balance between taking what is on offer, which is clearly important, and understanding how that will fit into a national care service.
My Lords, I cannot match the fervour of the analysis of the Bill made by the noble Baroness, Lady Murphy, but I start by saying that it is doubly objectionable. It is objectionable in process and it is objectionable in substance.
The issue of how long-term care is provided and financed has been controversial for more than a decade. The Department of Health, working with the rest of Whitehall, is to be commended on a substantial piece of work which was edging us towards a consensus in the country and across parties. A set of well considered options was laid before Parliament in July, with a consultation process which was due to end in November last year. At a time when the Government have been criticised for weakness in dealing with cross-departmental issues, the Green Paper was a model of its kind. It was signed by seven Secretaries of State, plus the Prime Minister. That must be a record. However, what then happened? Even before the consultation process had ended, one of the signatories, the Prime Minister, in a political forum—the party conference, not Parliament—repudiated the consensus, unilaterally striking out with a new proposal, which cut across the options developed in the Green Paper. The Green Paper had rejected taxpayer funding but this Bill reintroduces it and confines it to one sector, and one sector only, of the care universe without regard to the rest.
My noble friend Lord Butler and I have attended or written briefing for dozens of Cabinet meetings immediately before party conferences. They always contain a sermon from the Prime Minister or the Treasury about avoiding new announcements to conference which are not costed and collectively agreed. Rather than making us wait 20 years, I wonder whether the Minister will tell us whether this proposal went through that process. Not only is the option in the Bill ill considered—I will give an example of that shortly—it illustrates something that is going wrong with governmental processes.
By chance, on Friday, this House’s Select Committee on the Constitution produced a report on the Cabinet Office and central government. One of its conclusions—you will find it in paragraph 97—was that the increase in the power of the Prime Minister had not been kept pace with by the accountability mechanisms on the Prime Minister. This is a perfect example. The Prime Minister has launched a proposal whose genesis was not in the lead department but from his coterie in No. 10. The responsibility for defending this has not rested with the Prime Minister, but has fallen, under our parliamentary system, to the Secretary of State in the Commons, and to the Minister in this House. The Secretary of State has been undermined, left trying to defend something not of his making and, to judge by his performance on the radio this morning, he was finding that difficult.
The Bill is a classic Gordon Brown dividing line. It is not drawn up on merits but has been chosen to set a trap for the Opposition, who either oppose it and are accused of being heartless, or accept it against their better judgment. Looking at the density of population on the Opposition Benches, they have obviously elected to sidestep this challenge, although that means that they are unable to enter into the substance of the debate.
The proposal is equally objectionable on substance. Let me illustrate that from the experience of my family. It is an example which, I believe, has quite wide applicability. My mother-in-law, now 94, has lived on her own for more than 20 years. In recent years, she has been growing frailer, but was coping. Then, as is often the case, she suffered an illness which set her back. The family managed, however, with the help of the NHS and social services, to get her back into her own home, supported by a local care agency, paid for by her. That worked well for 18 months, until she had a fall and broke her arm. That so reduced her mobility that independent living, other than by provision in her home of 24-hour care, became impossible. That is the moment that all families dread, but there was no realistic alternative to her moving out of her home into a home. Happily, she is much better cared for, and she is living much closer to us.
The point of that example is that, at the very moment that her care needs went up from, perhaps, 30 hours a week to 168 hours a week, her eligibility for financial support went down. That cannot make any sense. Crucially, it fails the test set out by the Minister when she said that those with the highest needs must receive the greatest help. It is that injustice, even more than the issue of cost, which I find so objectionable.
We are being asked to vote on a Bill whose details are still unclear and which has received perfunctory scrutiny in another place. It is often the case that a Bill is fleshed out by the details of regulation, but in this case, key principles, which should be in the Bill, are still missing. What is the basis of assessment? Is it the four ADLs—activities of daily living—which do not seem to include cooking, incidentally? What is the true duty of the social services department? Is it to provide care or merely to fund it? What does it cost? Is it all a cruel deception in which hopes are being raised way beyond our ability to deliver?
The effect of the Bill is to pit people’s pockets against their better judgment. In many cases, increasing the care to extend living at home will be the right answer. Many others have correctly argued that. It was for us for a time, but for others, as the example I have given shows, there will come a time when it is no longer the right answer. A financial obstacle is being erected to prevent decisions being taken which are in the best interest of the elderly person.
The Bill, in my view, is so badly constructed, so poorly costed and so weakly scrutinised that if, as is traditional, it receives a Second Reading, I hope that the House will subsequently not allow it to proceed until the unanswered questions are answered. We can then return to the better-thought-out proposals in the original Green Paper.
My Lords, as one of the last speakers in this debate tonight, I am very pleased to say that I support the Bill. I was just as delighted when the Prime Minister announced this Personal Care at Home Bill at the Labour Party conference.
I am very pleased to have the opportunity to contribute to this important debate, and will focus my speech on the impact that the Bill will have on people with Parkinson’s. I am confident that the Bill is an important first step on the road towards improving social care support for people with Parkinson’s. However, it is important to recognise, as other noble Lords have tonight, that it is only a first step towards achieving a much-needed national care service.
I declare an interest, as I chair the All-Party Parliamentary Group on Parkinson’s Disease. I am pleased that Parkinson’s has featured so prominently in both the Bill and the debates about it. Last July, the all-party parliamentary group published a report on services for people with Parkinson’s, which clearly highlighted inequalities that people currently face when trying to access health and social care. I am hopeful that the Bill will address some of the major gaps in social care for people with Parkinson’s, as illustrated in our inquiry, because one of the key issues highlighted in our report was inequalities in social care services across the country.
I am particularly pleased to see that the consultation documents published alongside the Bill indicate that a standard assessment tool will be developed. That is an important step towards ensuring consistent implementation of the Bill across the country. I am equally pleased to see that the Bill will introduce a period of reablement. Preventive intervention, such as therapy services and aids and adaptions in the home, are proven to be cost-effective in the long-term, and can make a huge difference to the lives of people with Parkinson’s.
However, I raise a concern about waiting lists for aids and adaptations in the home, which are currently not mentioned in any of the regulations and guidance for the Bill. The Bill aims to reduce unnecessary admission to care homes, but to achieve that, it is vital that waiting lists for aids and adaptations be addressed. Although the Bill offers additional funding for equipment, which would be provided as part of the reablement process, without a clear requirement for that equipment to be delivered promptly, the Government will not be able to achieve their stated aim of reducing avoidable admissions to care homes. Is it a clear commitment that the regulations under the Bill will address that important issue?
I am also concerned that the focus of the Bill on those with high needs may have the unintended effect of diverting therapy resources from those with less severe needs. It is extremely important that preventive interventions, such as physiotherapy, are available to people at the earlier stages of Parkinson’s disease. Our inquiry showed that those services are extremely patchy and difficult to access. Provision of those services is cost-effective, and capacity needs to be increased urgently to meet the demand.
There are also a few concerns about the assessment process. In Clause 1, new subsection (4C) authorises local authorities to make a person’s eligibility for free personal care conditional on that person undergoing an intensive intervention or reablement package. Although the focus on prevention and reablement is extremely welcome, the compulsory nature of it appears to go against a personalisation agenda in some ways. Again I ask the Minister whether she can give assurances that this matter will be dealt with sympathetically.
The Bill is understandably limited and I recognise the reasons why carers’ services are not covered under the proposals for personal care. However, the APPG report found that far too many carers are struggling to get the support they need, not only to continue caring but to remain fit and healthy themselves. Can the Minister confirm that the guidance will explore ways in which carers can be supported in the rehabilitation phase of the assessment process—for example, through support such as respite breaks, training in moving and handling and in medication management?
I said at the beginning of my speech that I welcome the Bill. I certainly do and I will be supporting the Government tonight.
My Lords, I thank the noble Baroness, Lady Thornton, for introducing the Bill. Everyone who heard the “Today” programme this morning will have recognised that she will not have an easy task. If it is any consolation to her, summing up on behalf of the Opposition when the noble Lords, Lord Lipsey and Lord Warner, are in the vanguard is not exactly a picnic either.
“The present situation cannot go on much longer. People are entitled to security and dignity in their old age and so we must find a way in which to fund long-term care which is fair and affordable, both for the individual and for the taxpayer”.—[Official Report, Commons, 4/12/97; col. 489.].
Those are not my words; they were said by Frank Dobson MP when he announced the setting up of the royal commission.
Since the royal commission the Government have not stood still. They have brought forth a raft of research reports, policy papers and legislation. I pick out highlights, as noble Lords have done already, such as Sir Derek Wanless’s report in 2006, the Government’s Green Paper in July 2009, the dementia strategy and the Community Care (Delayed Discharges etc.) Act 2003. Along the way we have had rafts of research and policy papers, the National Service Framework for Older People and the falls prevention strategy. However, today we are no clearer and no nearer to answering the question the royal commission was set up to answer.
The most dispiriting thing about the Bill is that it takes us back to talking about a narrow, focused part of social care. The great tragedy is that the Bill’s production has meant that work on the costing models for the Green Paper had to stop. When we discussed this matter in the Queen’s Speech debate there was general consensus that, whatever one thought of the detail in the Green Paper, the financial modelling was crucial. The Bill has delayed that. Why is that so important? It is important because, as the right reverend Prelate the Bishop of Norwich said, this is a political issue of some importance. I congratulate the charities and the groups that have worked so hard to make this a key issue for the election.
In truth, all parties are struggling with the issue of the funding of long-term care and this important debate could not come at a worse time. We all know how bad the outlook is for the public services and public service finance. Had we had this debate 10 years ago, the atmosphere would have been different. The Conservatives have brought forward their pledge for the election—a voluntary insurance scheme which would enable people to pay £8,000 in order to meet some of the costs of going into residential care. There has been a great deal of talk about perverse incentives and there is a great deal of concern that such a policy would encourage relatives to put people into residential care before they should be.
As the noble Lord, Lord Warner, said, the Liberal Democrats have put on hold our commitment to free personal care—a decision we did not take lightly. At the same time, we also put on hold our long-held policy of funding free nursery education for all three year-olds. Passionately committed as we are to enhancing the life chances of children, I hope noble Lords will understand that the need to defer both policy commitments has come about because we are in such a difficult financial situation.
I echo the speeches of the noble Baroness, Lady Murphy, and the noble Lord, Lord Sutherland. Debates on long-term care are always a mix of high principle and devilish detail. We will support the Bill going forward, not because we think that it has general overall merit in the greater scheme of things for putting us onto a sustainable future for long-term care but because in the draft regulations and guidance we go one step forward towards something which has been lacking throughout all the debates on personal care—a definition of what it is. The noble Lord, Lord Sutherland, is right: we have known for more than 12 years that we need a definition of what constitutes social care and what will be the state entitlement that is sufficiently clear to enable individuals, by whatever means, including insurance, then to bring in their own resources to top that up. That is why there is a value in this.
The noble Baroness, Lady Campbell, referred to the question of assessment and whether we will have a critical plus band for services and, if we do, how people will be assessed. The noble Baroness loves talking about assessments—so do I. Last week I addressed the AGM of Counsel and Care, where one of my fellow speakers on the panel was Imelda Redmond, the chief executive of Carers UK. She reported that at the moment, in some local authorities, if a person turns up with the person for whom they care to an assessment meeting, the person being cared for can have their eligibility assessed as 50 per cent less than someone with similar care needs solely on the basis that they have a carer, and without that being mentioned to the carer at any point during the interview. Does the noble Baroness agree that that is wrong; that if it is happening it must stop and stop now and does not have to wait for this legislation? I should like assurances that the assessment of need will not include a carer’s contribution but that carers can be taken into account in working out a care plan.
Other noble Lords referred to the activities of daily living, but I shall not go into them because that is a matter for the Committee stage. However, I will ask the Minister for clarification about what needing significant help with those activities will mean because it is on such small details that the daily fate of hundreds of thousands of people rests. The noble Baroness, Lady Murphy, made an eloquent case for saying that we have come to a time when we have to acknowledge that assessment of people who have dementia is different and, therefore, we have to have parallel assessment criteria for them. What somebody who has capacity can manage is not the same for somebody who lacks capacity. It is helpful to have the list of qualifying services set out in the guidance.
In her introduction, the noble Baroness, Lady Thornton, talked about the criteria for NHS care. In her reply, can she say how the criteria for this policy will work with the criteria for continuing NHS care? It is not that long since local authorities and the health service were playing games with one another to see who would pick up the tab for individual people. That stopped when there was an increase in funding. It will reoccur the moment the pinch begins to fall on the public purse. A propos a point made by my honourable friend Norman Lamb in another place, reablement is a good thing and we are all in favour of it, but does the Minister agree that people who need palliative care should not be put through an assessment for reablement? That is simply a bureaucratic nightmare for people and their families when there is no need for it.
On the issue of budget allocation, the right reverend Prelate the Bishop of Norwich talked about local authorities trying to implement this policy and having to cut services for other groups of people. I think it will be different and that social services departments will sit down and look at cutting other services for older people, who are by far one of their biggest client groups. That is the tragedy of having to debate such a small and narrow-focused element of social care. Were I in the unenviable position of being a chair of social services faced with this Bill, I would have to look at the work of my department and say, “Am I going to cut the wardens in sheltered housing? Am I going to cut the transport? Am I going to cut the lunch clubs and the shopping services?” These are all services which help thousands of older people and their families to get by. Given the lack of clarity about the number of self-funders and the capacity of councils to meet the obligations which this Bill places on them, does the Minister agree that this policy needs to be reviewed earlier than the 12 to 18 months proposed, so that we can see very quickly the extent to which it is, or is not, meeting its aims? I share the curiosity of the noble Baroness, Lady Masham, as to which Department of Health budget will be cut in order to fund this Bill.
Finally, there is the proposal of the noble Lords, Lord Lipsey and Lord Warner. I have immense respect for the noble Lord, Lord Lipsey. Over the past 10 years we have done battle on this subject many times. He has consistently taken the approach that he does out of a passion for ensuring that the quality of services for older people in this country improves. I admire him for that. I am afraid we will not be supporting him on these Benches tonight. I have advised my colleagues to abstain for two reasons. The first is a technical one. We on these Benches do not intend to vote either at Second Reading or in Committee unless a matter is of exceptional importance, and I do not believe that this Bill falls into that category. The second reason is this. The Government have raised a whole raft of questions on a pretty thin evidence base. I have never read an impact assessment like it where the word “unknown” appears time after time. But having raised the debate just before a general election, the Government’s proposals deserve greater scrutiny than they received in the House of Common—although, having read Hansard, I would say that one clause got far more scrutiny than usual down another end. However, it needs to be taken much further apart.
We can all argue about the principle and wonder about the economic climate and what we would do if we had the money, but when it comes to a national care service, we are not talking about reordering providers or establishing branding and all that which goes with the NHS, but about entitlement and funding. This Bill does not address funding but it begins, in a very small way, to address entitlement. I believe noble Lords have a right and a duty to examine that in very great detail, so I wish to go forward to Committee stage in order to do that.
My Lords, it is quite clear from everything we have heard today that, rather like one of those trick diagrams where one sees either a pair of human profiles or, alternatively, the outline of two candlesticks, this is a Bill which can be viewed and appreciated from a number of different angles. One of those angles is that which the Government invite us to adopt as we consider the Bill’s proposals, and I would be hard put to disagree that the perspective of the noble Baroness, Lady Thornton, is a natural starting point in this area of policy. Like other noble Lords, I do not think that anyone could cavil at the principle of enabling people living at home who have critical personal care needs to receive such care free. It is a laudable aspiration. It is equally laudable to try to devise ways in which those who need personal care can avoid having to go into residential care, or at the least can delay doing so. Who among us, especially those of us with elderly relatives of our own, could take issue with that aim?
I begin by commending the Government on their worthy instincts. It will however be clear to the Minister that the Bill represents something rather more complicated. The Government have taken 12 years to reach this point. The Royal Commission on Long-Term Care for the Elderly, under the able chairmanship of the noble Lord, Lord Sutherland, contained some extremely valuable analysis of demographic trends and their implications for social-care delivery, and a great deal of the commission’s thinking is relevant to our deliberations today. However, one of the things that the Government took away from that report was the conclusion reached by a minority of the commissioners that free personal care for all was not an idea that was either practicable or, in terms of its net benefits, politically defensible.
The Green Paper published last year restated that conclusion on the back of some home truths. The first home truth is that the current system of social-care funding is under considerable strain. If nothing is done, it will come under progressively greater strain as we move into the future as a consequence of demographic trends. Over the next 20 years we are going to see the proportion of the working population diminish in relation to the number of people of retirement age. To fund personal care solely from taxation would inevitably mean placing an increasing financial burden on those people who are working. The problem with that is not just one of affordability but also one of fairness. A fully tax-funded system would entail a shift of resources from the young, who have relatively fewer means at their disposal, to the old, who have accumulated wealth over a lifetime. It was not surprising, therefore, that the Green Paper explicitly ruled out a wholly tax-funded system and proposed instead a number of options resting in one form or another on co-payment. The paper states:
“We think that the Partnership option should be the foundation of the new system”.
The Bill before us has been heralded as one of the building blocks of that new system, yet its proposals, as we have heard from so many noble Lords, run completely counter to the partnership option. What on earth can account for that? Neither in the Prime Minister’s speech at the Labour Party conference nor at any time since have we had an explanation as to why the Green Paper’s carefully formulated arguments, based in essence on principles of social justice, should have been ignored in a Bill that is meant to represent the very first step along the road to comprehensive social care reform. It is not as if those wider principles of fairness magically disappear. If we look at those older people whom this Bill will benefit, we see that no fewer than half are currently paying for social care, either in part or in full from their own pockets; in other words, people who by definition are not in the poorest bracket of society. Given that the windfall that those people will receive is in large measure to be funded out of general taxation, we are looking, exactly as the Green Paper said, at a large slug of public money going into the pockets of those with means at their disposal. At a time when public funds are under serious strain, it is hard to see the social justice in that.
It is equally hard to see the justice in the discrimination which underlies the Bill. One group of people with critical care needs who happen to be living at home will benefit; those whose needs are equal if not even greater, but who happen to be in residential care, will not. The Government go to some lengths to justify this distinction, but, in truth, their explanations sound pretty hollow. If it is compassion and people's level of need which have motivated the Government to act in the way that they have, why have they not tried to produce a package that would be fairer to all in greatest need, instead of just some?
Let us take the Bill on its own terms. Its key aim, as the Explanatory Notes tell us, is to enable,
“more people to avoid or delay entering residential accommodation”.
The key phrase there is “more people”. In other words, there is a test, as there always is, of value for public money. The more people who benefit from reablement and from personal care at home who are currently not in receipt of those services, the greater is the value for money. We need to look quite carefully at how many more people will actually avoid going into residential care as a result of the Bill. In a full year, the number of people in the highest category of critical need who will receive personal care at home is budgeted at 277,000. Of those 277,000 people, only a tiny fraction, under the Government's assumptions, are not currently in receipt of such care. In fact, the figures, even by the Government's own admission, are a matter of uncertainty, because nobody knows how many people there are whose needs are currently not being met in any form. If we take the £537 million that it is going to cost to deliver personal care in the home as a result of the Bill, it is clear that the net additional benefit conferred by that money will fall, first, on the 2,000-odd people who it is assumed will switch from residential care; and, secondly, on the 5,000-odd people who will stop receiving informal care and switch to social services; in other words, a very small number of additional people set against a very sizeable sum of public expenditure and therefore a very large dead-weight cost. What is the justification for that? It looks like a very poor deal for the taxpayer.
Not for a minute would I wish to belittle the value of reablement, which is the other part of this package. Reablement is a good concept, although it is perhaps just as important for us to focus on prevention as on reablement; sadly, the Bill says nothing on that topic. Nevertheless, as regards value for money, I am fully prepared to believe that, per pound spent, reablement is capable of achieving very considerable benefits. The problem with reablement, as envisaged, is the way in which it has been costed. As we have heard, just about every single figure used in the Government’s impact assessment comes with a giant health warning, but the figures underpinning the reablement calculations look particularly shaky. One hundred and thirty thousand people at £1,000 a head is suspiciously broad-brush. Those whom I have spoken to in local government say that the underlying cost assumption of £30 an hour for 30 hours is likely to be a gross underestimate of what will actually be required.
That brings us on to what the Bill does to local authorities. Local authorities are being told that they must find the money to pay for their share of the cost from extra efficiency savings. I am all for efficiency savings, but how realistic is it to suppose that authorities which are already working to achieve 3 per cent efficiency savings a year, shortly to rise to 4 per cent—a very tall order for many of them—will suddenly be able to find an additional £250 million at practically no notice? Even the Government say that these savings are achievable only over time, but local councils are not being given time: the money has to be found as from October of this year. What is more, given the chasm of uncertainty underlying all the financial assumptions, the annual cost to them may be a lot more than £250 million. We are now led to understand, contrary to what was understood initially, that if the total cost of delivering the Bill should exceed the budget, local authorities will have to find whatever extra money is required; in other words, they are being landed with an open-ended commitment. I should like to hear from the Minister why she thinks that the funding arrangements needed to deliver the aims of the Bill do not run counter to the new burdens doctrine. When it comes to placing new financial burdens on local authorities, the Government have given clear and unambiguous undertakings. I quote from the website of the Department for Communities and Local Government:
“A new burden is defined as any new policy or initiative which increases the cost of providing local authority services … Government as a whole are committed to ensuring new burdens falling on local authorities are fully funded. This commitment is called the New Burdens Doctrine”.
It defies explanation as to why the Government believe that this Bill does not break faith with that commitment.
The squeeze on local authority finances caused by the Bill will be of the severest kind, and it is not hard to imagine what will happen. In the first instance, there will be a stampede of applications for free personal care. When the money available has been used up, local authorities will do their utmost to avoid having to take more people on to their books, and we will find pressure being placed on the elderly to move into residential care instead of staying at home. It will prove harder for people to pass the test of eligibility. Alternatively, or perhaps additionally, in order to fulfil their obligations to those in critical need, councils will be forced to remove social care funding from those who are in lower categories of need. To the extent that this happens, it may drive some people out of their homes and into residential care, thereby serving to dilute the main benefit of the Bill, which is supposed to be to enable more people to avoid or delay entering a residential setting.
These are some of the perverse incentives which the Bill is likely to create. It is inevitable that the ability of the system to look after an increasing number of elderly people in their own homes, however that care is funded, will vary from council to council, if only because of the lack of available manpower. No thought appears to have been given to the training requirement implicit in these proposals or the need to deliver care to an acceptable standard of quality. One is led to the inescapable conclusion that the speed at which the Government are aiming to roll out this policy is grossly imprudent. It is bound to disappoint a lot of people and it will give rise to false hope among those in critical need who find that they are denied free personal care because they fall the wrong side of a certain definitional boundary. A spate of legal challenges seems almost inevitable.
A national policy for care of the elderly requires a long-term view. Hence, any new initiative has to pass one test above all, and that is the test of sustainability. I fear for this Bill because I do not believe that its provisions will prove sustainable in the long term. The haste with which it appears to be have been devised has led some to think that its arrival in Parliament is less about delivering long-term reform and more about playing to the gallery. For all the reasons I have given, I suspect it would not take a jury long to decide which view they preferred.
My Lords, as we might have expected, we have had a lively and informed discussion about the important issues touched on by this Bill, and indeed beyond them. We know that while this is a short Bill with just one substantive clause, it will have great significance for thousands of the most vulnerable adults and older people. I acknowledge that many of the issues that have been raised are about the Bill’s implementation, and that is absolutely right. I expected that and informed the Bill team and everyone else that that is what your Lordships’ House would concentrate on.
Before I deal with the large number of comments that I want to take up, to make and to answer, perhaps I may remind noble Lords that 400,000 people with the highest needs will benefit from the Bill. Some 280,000 of those with the highest care needs living at home, many of whom have already been paying for a long time a great deal of money to fund the cost of their care, will be helped by the Bill, and it will help to end the lottery of personal care charges. It will enable us to give them and their families some reassurance that their personal care will be provided free of charge regardless of postcode.
I turn to reablement, and here I agree with the noble Baroness, Lady Gardner, who said that this was a new word for her. It was for me a month or so ago, but I cannot think of another word that describes what we are trying to do any better. I am sure the noble Baroness probably will be able to do so, but it means helping people to remain healthy and independent in their own homes for as long as possible, and at home is where most people tell us they want to be. It also supports the prevention that we want to put at the heart of the system and builds on the progress we have already made towards personalising services, supporting carers and focusing on the dignity and quality of services. We believe that the Bill will build up the momentum towards the important steps that need to be taken to achieve a wide reform and creation of a national care service.
Several noble Lords made the point that they did not believe the Bill had received enough scrutiny in the Commons. The noble Baroness, Lady Barker, answered that extremely well indeed. The Bill received a full day on Second Reading and a full day for the Committee stage—for a one-clause Bill. There is no question but that Members of the other place had their say. One has only to look at the record to see that. I disagree profoundly with my noble friends Lord Warner, Lord Lipsey and Lord Joffe. We think that this Bill will enable us to do the right thing now. It will end the postcode lottery, remove financial burdens and give real help to those with the highest care needs.
What I should like to do is go through some of the remarks made by noble Lords. I shall deal with as many as I possibly can in the time available, but I am mindful of the hour and the fact that noble Lords may want to get to their dinner at some point. The noble Baroness, Lady Gardner, made a series of points about meeting the costs of training a larger workforce. The issue was also raised by many other noble Lords. The adult social care workforce is made up of 1.5 million workers who are all delivering these vital services. As the services evolve, it is important that employers respond to ensure that their workforce is deployed and equipped to deliver them. In the case of personal care at home, we intend to specifically support council employees through helping to devise training tools. These are being developed by the Social Care Institute for Excellence right now. I was also interested in the noble Baroness’s wise words about her work as a local councillor. She talked about councils having to trawl through their records. The point is that councils are already aware of the needs of people who are already receiving care, but for new people there will of course have to be assessments. That is why we are providing an additional £27 million to cover the administrative costs.
The noble Baroness and other noble Lords raised the issue of where the funding is to come from. It will be provided by the Department of Health, not the NHS, and will come from budgets that are to do with research and development, communications and consultancies. It is not coming from any budgets that affect front-line services or indeed the essential research mentioned by the noble Baroness and the noble Baroness, Lady Masham, into cancer and other important commitments that the Government already have.
The noble Baroness, Lady Campbell, asked various questions. First, perhaps I may say that, as concerns her role in the commission for equality and human rights, of course we are seeking the commission’s advice and we will be having discussions. We regard the commission as a partner in the consideration of how this Bill should move forward. She also asked if we have evidence about the cost and dependency reductions of reablement. The research we refer to is the “use of resources” report, published in November 2009. It showed that 50 per cent of people who underwent reablement had reduced care needs following it, thus reducing the cost of meeting their overall care needs.
Both the noble Baroness and the noble Baroness, Lady Masham, asked whether people would be forced to do this, and I think that the noble Baroness, Lady Barker, raised the issue of people receiving palliative care. I agree absolutely with her that of course that would be inappropriate in terms of what we are intending to do here. However, it will be for local councils to decide whether an individual would benefit from reablement, and local authorities are best placed to work with service users. We in turn will work with local authorities to ensure that there is strong guidance on access to care, an issue we have discussed in the House on several occasions. It is important that the guidance produced as a result of this legislation is strong and coherent, thus helping to take forward joint working between the care services and the National Health Service.
The noble Baroness of course also asked if the care will be portable. We believe that there should be greater co-ordination between councils of people’s care packages when they move. As she knows, we are in favour of a move towards the portability of packages and that is being looked at in the context of the care and support Green Paper. I suspect that we will return to this discussion in Committee, which is exactly why we need to move forward with the Bill.
On the guidance and regulations to ensure that service users are involved in the assessment, the guidance that will accompany the Bill will make it clear that councils should involve individuals in the assessment process to appropriately and sensitively consider their needs. We will introduce an assessment tool to help councils to work with individuals across the piece to assess those who have the highest personal care needs. By offering £130 million to councils to further develop their reablement services, we hope that people will be able to increase their ability to live more independently and reduce their levels of dependency.
I confess myself disappointed with the right reverend Prelate’s remarks, as well as surprised. I take this opportunity to ask the right reverend Prelate, with every respect, to reflect on the letters to my honourable friend Phil Hope from carers’ organisations, disabled people’s organisations and Help the Aged, which urged this House to get on with its job, consider the Bill and take it forward. The right reverend Prelate asked what assurances there are that care will be provided in the most appropriate setting. The object of our proposals is to help people to live as independently as possible for as long as possible in their own homes. I shall return to the issue of homes, which noble Lords have asked about, because it is appropriate that we address that.
My noble friends Lord Warner and Lord Lipsey were very critical of the Bill and made a lot of remarks about why they disliked it. A lot of my remarks will cover some of the points that they made. My noble friend Lord Warner used the word “cruelty”, but the cruelty that he mentions would be in not going ahead with this Bill and not benefiting the thousands of vulnerable adults and older people, as it seeks to do. We expect to discuss this issue with the ADASS and local government; we will be discussing all that in Committee. We are already talking to many expert stakeholders; we are not waiting for the consultation process to finish but have been having an ongoing dialogue. Listening to my noble friends, I reached the conclusion that they are actually opposed to this Bill. I suggest that they stop pretending that this is about parliamentary scrutiny; this Bill will have a great deal of parliamentary scrutiny in this House. I have worked with noble Lords across the House for the past two years in scrutinising Bills that concern care, and noble Lords will know that I commit myself to ongoing discussions and that I have a record for delivering change where change is possible on Bills. That is the commitment that I make to the House now, about how we will take the Bill forward if it goes to the next stage.
I am very fond of my noble friend Lord Lipsey, so I can say with affection that he sometimes overstates his case about things that he feels strongly and passionately. Comparing a Bill that benefits so many vulnerable people to the poll tax Bill is a case in point. We are not rushing at this and I do not think that your Lordships' House will allow us to do so; we will want to have the discussions that are necessary to take this Bill forward. I urge my noble friend to use his undoubted talents to help us to do that and to make the reforms rather than try to halt the Bill’s progress.
The noble Baroness, Lady Masham, asked a variety of questions about where the money will come from, and I hope that I have assured her about that. She raised the issue, as did other noble Lords, about the bureaucracy that might be involved in the assessments. That is a very legitimate point to make. I read the consultation document and have some sympathy with that view; it is exactly why we need to have the scrutiny that this House is so good at. We have a lot to say about that bureaucracy, and the Government need to listen to what noble Lords have to say about it.
My noble friend Lady Turner made some powerful points about the need for this Bill and rightly talked about the fact that this is about individual vulnerable people and their families. She rightly pointed out the firm support that carers’ organisations have given to this Bill.
The noble Lord, Lord Best, and others mentioned housing and homes. I think that that is absolutely right. The cost of the package of reablement can vary, as such packages may involve a variety of interventions. Packages should be developed by the local authority in conjunction with individuals. The noble Lord will know that councils already have responsibility for making adaptations through the disabled facilities grant. It will be open for them to assist people with adaptations to find what is needed and how it is needed.
The noble Lord, Lord Joffe, raised a number of points. He is mistaken to cast doubt on the ability or willingness to implement this Bill. I remind him that most care workers and most local authorities do a very good job and strive to do better, and it is up to us to help them to do this. I disagreed with the noble Baroness, Lady Murphy, and her analysis of the Bill. She was a bit cavalier in her dismissal of the elderly organisations that support the Bill, and I ask her to think carefully about dismissing so lightly the support that the Disability Alliance, RADAR, the Independent Living Organisation and carers’ organisations have given this Bill. That support is not given lightly; these are not organisations that would do the Government’s bidding—quite the reverse. Some of them have made my life extremely difficult in the past year or so.
My noble friend Lady Pitkeathley rightly referred to the Joseph Rowntree Trust and I echo her remarks wholeheartedly about the motivation of carers. Guidance needs to be very clear about carers and we have to start the discussions about that in the next week. That is the commitment that I make to the House.
My noble friend Lady Wilkins asked about the Bill doing more about adaptations in people’s homes. I have addressed that to a certain extent, but she is right to say that these are very important points about the state of people’s housing and how we can reflect that in the implementation of the Bill.
The noble Lord, Lord Sutherland of Houndwood, spoke about crumbs and I am very grateful for them. We believe that this is a step in the right direction for the national care service. His remarks made me reflect on the fact that often the way to get people to work together across the piece is to get them to do something together in the first place, which this Bill will do. Taking money out of health and putting it into this limited area for the most vulnerable will help us along the road. We do not think that the Bill contradicts those wise words about support to the elderly and the need for equity and fairness in the Green Paper and the White Paper that is coming along. It will help us with the aims that we have over the larger issue.
I invite the noble Lord, Lord Low, to use his skills as a parliamentarian to work with us to make this Bill and its guidance stronger and more effective. We have not claimed everything for this Bill, but we claim some good for it. I hope that he will think about putting his shoulder to making the wheel turn better. He made comments about bureaucracy and who would benefit and extending the benefit. I very much want him to be involved in Committee.
The noble Lord, Lord Carter of Coles, made a wise contribution. He asked about the link to the national care service. As I have said, the Bill is not part of, but is a step towards, setting up such a service.
My noble friend Lady Gale spoke with passion about Parkinson’s disease and the support for the Bill from those with Parkinson’s. She talked about carers, and I am pleased that Carers UK and other stakeholders have given their support for the Bill. I add that the experience in Scotland has shown that many carers continuing their caring role were able to shift the balance of care that they were providing by focusing on other tasks to support and improve the lives of elderly and disabled people.
My noble friend asked about waiting lists for aids and adaptations to be addressed in regulations. Councils are responsible for managing waiting lists, and the use of aids and adaptations will be addressed in guidance.
The noble Lord, Lord Turnbull, made some highly political remarks, I think that he has misunderstood the point of the Bill; it is about those with the highest needs who should receive the greatest care, and I would have thought that we would agree about that.
The noble Baroness, Lady Barker, made several important points about eligibility, carers, reablement and people who need palliative care. I think that I have addressed most of the issues that she raised but, if I have not, I will certainly write to her. I agree with her remarks about the need to get on with considering the Bill and taking it to its next stage.
The noble Earl, Lord Howe, raised the issue of whether the Bill is in conflict with the Green Paper. We do not think it is; in a bit of a reversal of roles, we think that it is a redistributive Bill while the noble Earl does not, and I suspect that we will need to tease out in Committee why that is the case and what it is about. On the specific issue of new burdens in legislation, the thing about new burdens is that they are about unfunded initiatives. The cost of free personal care will not be unfunded, though; it will have £670 million of funding in its first year, of which £420 million will come from the Department of Health, so it does not fulfil the criteria of the “new burdens” issue.
I finish by telling noble Lords what other organisations have said to us about the Bill. RADAR welcomes the Bill, which it says has the potential to improve independent living opportunities for at least some disabled people with the highest care needs. The Equality and Human Rights Commission says that it broadly welcomes the Government’s commitment to provide personal care free of charge in certain circumstances for people with the highest need. Counsel and Care, a charity for older people, their families and carers, says that it welcomes the Bill, which aims to introduce free care at home for people with the highest needs. Carers UK says that it supports the Bill, which will help thousands of families caring for people with severe conditions such as dementia or Parkinson’s disease at home, and it has been calling for this for a long time. The Parkinson’s Disease Society says that it welcomes the Bill with its focus on the immediate improvement of social care services, and particularly welcomes the commitment of new money into the social care system.
I thank noble Lords for their valuable contributions, but we now need to move on to the next stage of the Bill.
Amendment to the Motion
At end insert “and that the Committee shall not meet until Her Majesty’s Government have completed, and published their response to, their consultation on the draft regulations which may be made under the Act, if passed”.
My Lords, I take my chastisement from my noble friend like a man, but I do not resile from a single word of what I have said; I would prefer to be in the company of some of those who spoke supportively because I think history will show us to have been right.
A very large number of concerns have been raised today about the affordability of this, whether we have the figures right on the funding, the administration of the complex new system and the sustainability of this proposal. However, we have not spoken much about the fact that it is only eight months from today that the Government have said that they will have the scheme up and running. Many of us have considerable doubts about our ability to implement this and not let people down after the promises that have been made.
I tabled this Motion because the Government have said that they will devote only one day to the Bill in Committee. A host of things are of great concern to many of the people who have spoken today about the practicalities of implementing it. It would be easier to get the Government’s business through in one day if we had actually completed the process of consultation on the content of the regulations and guidance, and we had had from the Government their responses to it. As things stand, I understand that we will not have completed that process of consultation and we will not have that response from the Government about the outcome of it, so we will have to probe all that in Committee in one day without the advantage of the knowledge from the completion of that consultation. That strikes me as a very tall order, so I beg to move.
My Lords, I will not detain your Lordships for long but when the House was a good deal emptier than, for some strange reason, it is now, the noble Lord, Lord Sutherland, suggested that this was a wrecking amendment. I make it clear that it is not. The responses to the consultation have to be in by 23 February, though the Government asked that they be submitted by 26 January. For the Government to respond to that consultation need not take more than a week or two at the most. We can be in Committee, even if my noble friend Lord Warner’s amendment is accepted, by the second week in March, and the Government can have their Bill long before the date on which some other event might come along and interrupt our proceedings. It is not a wrecking amendment; it is an amendment to take the Bill in an orderly way, and I commend it to the House.
My Lords, I support the amendment. A number of us have been reflecting on whether the way that this House scrutinises legislation has yet reached perfection. One of the principles that we are looking at is the question of how the House looks at whether legislation is ready to come to this House. It is apparent to a number of us that the Government ought to make clear before they introduce legislation what their policy position is in sufficient detail to understand it, how they have consulted and what the consequences of that consultation are, and that the detail of the legislation is clear enough that the House is able to scrutinise whether it will actually achieve the policy objectives which the Government are advancing.
I am not an expert on the content of the Bill, but it seems to me from the debate I have heard today that it fails these tests in a number of ways. This is a massively important issue. There is hardly a more important issue facing public policy than how you address the challenge of coping with care for adults when we are faced with demographic changes over the next decade. The Government have, rightly, been struggling thoughtfully with that issue, as evidenced by the Green Paper. As a consequence, this is a huge policy shift, but we have not been given an explanation of the reasons for that shift. We do not understand how it will work in practice, nor what the consequences of the shift will be and for whom. We are certainly unclear whether this shift is sustainable: we see the trail of that in signals that this is only going to last for 18 months, with the hint that maybe it is going to be knocked on the head.
I would not normally speak against my Government in this way, but I do not believe I am actually doing so. Allowing the proper consultation to take place, particularly on the regulations, allows the House to be better informed and do better scrutiny in Committee. I speak with the experience of the Merits Committee behind me; these are important issues that should be transparent. I therefore support my noble friend Lord Warner.
My Lords, I only want to add one sentence: for the reasons that have been given, I urge all those who care about the role of Parliament in these matters to support the amendment. We damage the House’s reputation if, on a matter as important as this, we do not show that Parliament takes its responsibilities seriously.
My Lords, at this stage I must set out very briefly a few issues responding to my noble friend Lord Warner’s amendment and points other noble Lords have made.
In a personal comment to the noble Lord, Lord Warner, I say that he should have some faith and join us in making this happen on 1 October. I also say that to my noble friend Lord Lipsey.
The support that many stakeholders and charities have given this Bill has not just come today; it has been going on for months and months. That discussion continues right through the production of the draft guidance. All these organisations are taking part in good faith and I ask noble Lords to join them in doing so.
We have a duty in this House to ensure we appropriately consider the matters put before us in this Bill. The right place to do this is in Committee and indeed at other stages of this Bill. Noble Lords have suggested that we are just going to have a day in Committee. That is, of course, not true: we will also have the other stages of this Bill.
We should not be here to impede the passage of such a Bill. Let me be clear: this amendment from my noble friend is a wrecking amendment. It would do that, and it would in effect prevent the people who are most in need of receiving this personal social care at home from having it provided.
Noble Lords who have worked with me in the past on Bills will know I am completely committed to discussing these issues right across the House, and I will do that from tonight, if they wish.
I remind noble Lords once more that we have the opportunity in Committee to discuss this further, and I suggest that is when we should do it. I ask the House to reject my noble friend’s amendment, see it for what it is, and let us get on with our job.
1 February 2010
Division on Lord Warner’s amendment.
Amendment disagreed.View Details
Bill read a second time and committed to a Committee of the Whole House.
Pharmacy Order 2010
Motion to Approve
That the draft order laid before the House on 11 November 2009 be approved.
Relevant Document: First Report from the Joint Committee on Statutory Instruments.
This is my reward.
The Pharmacy Order 2010 will establish the General Pharmaceutical Council (GPhC), the new regulator for pharmacists, pharmacy technicians and registered pharmacy premises in Great Britain. It will complete the separation of professional regulation from professional leadership in pharmacy signalled by the powers taken in the Health and Social Care Act 2008. Measures included in the Health and Social Care Act 2008 enable the transfer of all the regulatory functions of the RPSGB and the Pharmaceutical Society of Northern Ireland (PSNI) to the new body, the GPhC. I have tried to minimise the number of initials, but their use seems inevitable. Northern Ireland Ministers have taken the decision not to transfer the PSNI’s functions at this stage, but they have the power to do so in the future should they so wish. My remarks are fairly long because this is a detailed order. I hope that noble Lords will bear with me because it is important that we look at the order. I know that this is the third time that it has been scheduled, so it is important that we get through it this time.
Any Section 60 order to make these changes would be subject to consultation and the affirmative resolution procedure, with debate in the Northern Ireland Assembly. The Pharmacy Order will enhance public confidence in the ability of the pharmacy regulator to protect the public, deal with poor professional standards and allow the leaders of the pharmacy professions to advocate for the professions. The order has been laid in the Scottish Parliament, as the regulation of pharmacy technicians is a devolved issue. It was debated in the other place on 13 January and the passage of the order was agreed. I draw noble Lords’ attention to two small typographical errors in the order, for which I apologise.
Legal advice from both the Department of Health and the Scottish Government is that the order can be amended prior to it being made and my officials will therefore arrange for a corrected version to be presented in Privy Council. The second paragraph of the preamble to the order should have referred to Her Majesty, with the advice of Her Privy Council, as the person making the instrument as opposed to the Secretary of State and Scottish Minister. Similarly, the references to paragraph (1)(g) in Article 11(2) and (3) should in fact be references to paragraph (1)(f). I also draw the attention of noble Lords to three further small amendments to this order which are now required as a result of the Lisbon treaty entering into force on 1 December. References in Articles 21(4)(b), 22(2)(b) and 66(2) to “the Treaties” are now required to be replaced by references to “the EU Treaties”.
The order continues the process of implementing the Government’s programme to improve patient safety through the reform and modernisation of the regulation of the healthcare professions, as set out in the White Paper, Trust, Assurance and Safety. The order brings pharmacy into line with the arrangements for other healthcare professions that have separate bodies for regulation and representation for the profession. Both roles are necessary, but cannot be performed in the same organisation without creating a conflict of interest between the needs of public safety and professional leadership. As the order is a substantial document, I will go through the provisions.
Part 1 contains preliminary matters, including commencement provisions and interpretation. Part 2 makes provision for the establishment of the council and its statutory committees, in addition to setting out the key functions and core purpose of a professional regulator, which is to safeguard patients and the public, in particular those using the services of registrants and those services provided by registered pharmacies.
Part 3 sets out the powers the council will have with regard to registered pharmacists. For the first time, there will be a power to set standards for registered pharmacists. It also makes provision for the inspection of pharmacy premises and sets out the powers of the inspectors appointed by the General Pharmaceutical Council. The regulation of registered pharmacy premises sets the pharmacy regulator apart from other professional health and social care regulators. We have chosen to maintain the regulation of professionals and registered pharmacy premises within the same organisation so that a holistic approach can be taken towards the delivery of pharmaceutical services. I have heard concerns about the potential for duplication of regulation of inspection and assure the House that provision has been made in the order for the sharing of information with other regulators to help avoid such duplication of activity.
Parts 4 and 5 set out the criteria for an individual pharmacist’s or pharmacy technician’s entry to the register and the educational requirements of both professions. It also sets out the standards expected of those who are registered and the requirement that they continue to demonstrate how they meet those standards through continuing professional development. In addition, it describes the arrangements for entry to the register for those coming from the European Union and elsewhere overseas. There are also provisions for temporary registrations to be used in the event of an emergency. Fitness-to-practise procedures are set out alongside appeals procedures in Parts 6 and 7.
Schedule 1 provides more detail on the constitution of the council and governance arrangements. Schedules 2 and 3 deal with matters relating to visiting practitioners. Amendments, repeals, revocations, transitional provisions and savings are dealt with in Schedules 4, 5 and 6. I draw your Lordships’ attention to Schedule 4 in particular, which amends the Medicines Act 1968. As the Act is a UK-wide instrument, the amendments ensure that the current position in relation to registered pharmacies in Northern Ireland remains untouched.
A great deal of attention has been paid to ensure the smooth transfer of the regulatory functions from the Royal Pharmaceutical Society of Great Britain to the new GPhC in the Schedule 5 transitional arrangements. That should mean that no current student is disadvantaged by the transfer and fitness-to-practise cases already in train can be completed. TUPE for affected staff is covered here. I assure noble Lords that a communications programme is in place to keep staff well informed. Staff transferring to the GPhC will be eligible to join the NHS pension scheme and, subject to individual choices, able to transfer contributions from their existing pension provider to the NHS scheme.
I am aware that the Royal Pharmaceutical Society of Great Britain, while not wishing to impede the Pharmacy Order, is concerned that it might adversely affect its closed staff pension scheme, at least for some of its members. I assure the society that my Department takes the matter most seriously and is working to ensure that the transfer of staff from the RPSGB scheme to that of the GPhC does not worsen the funding position of the closed scheme.
The separation of professional leadership and regulation in pharmacy received widespread support during the consultation on the draft order. However, it would be remiss of me not to reflect the discussions on the issue of restricted titles and the proposal not to have a non-practising register. The RPSGB has traditionally held a non-practising register for those pharmacists no longer working in the profession but who wish to maintain their contact. These people will now be able to join the professional leadership body and continue their allegiance with pharmacy.
Given this option for those who have retired or who are no longer practising, we propose that the regulator should concern itself only with registering and regulating active professionals. The current restricted titles of pharmacist and pharmacy technician are bound by membership of the RPSGB. In the future they will be restricted to registrants of the GPhC. The loss of these titles has been keenly felt by a small but vocal minority of mainly retired pharmacists. Clearly they are eligible to call themselves retired or former pharmacists but must not mislead the public on the currency of their advice or expertise.
Others have suggested that academic or industrial pharmacists do not need to register because the systems they work in are already regulated. The nub of their argument is that they do not wish to be regulated but wish to continue to call themselves pharmacists. They argue that only those providing direct services to patients need regulation. This would mean pharmacists in supervisory or strategic roles, education and industry would not be covered by the requirement to register and therefore not subject to requirements for continuing professional development. That is the nub of the issue. We believe that there is an individual obligation above and beyond that of any additional systems regulation—be that in industry, education or the NHS—that defines a healthcare professional as opposed to any other member of the workforce.
Those people must ensure that the patient’s interests and public safety are paramount. This applies to those teaching the next generation of professionals and to those developing, licensing and marketing new medicines. For these reasons, the order requires that such professionals must register with the GPhC if they want to use the restricted titles. I commend the order to the House.
My Lords, I thank the Minister for introducing the order, which, as she indicated, ushers in a new era in the regulation of pharmacists in Great Britain. The creation of the General Pharmaceutical Council as the regulator for the pharmacy profession reflects the pattern that we now almost take for granted across the healthcare professions as a whole—namely, that there should be a clear separation of professional regulation and professional leadership and representation. The Royal Pharmaceutical Society of Great Britain has consulted its members in detail on these changes, and the proposals reflected in the order have been approved formally by them. As the Minister said, the provisions should serve to enhance public confidence. I believe that one can say that without casting any reflection on the diligence and conscientiousness shown by the Royal Pharmaceutical Society during its long history.
In the main, the proposals arising out of the Government’s White Paper Trust, Assurance and Safety have met with acceptance from the pharmacy profession. However, one issue that was the subject of considerable debate—the noble Baroness touched on this—was who should be allowed to use the protected title “pharmacist” once the new regulatory arrangements are in place. The main purpose of having a restricted title is to afford protection to the public. It is a reasonable rule of thumb that that purpose is best achieved by restricting eligibility to the use of a professional title to as narrow a group as possible.
However, the doubts that surfaced during and after the consultation were focused on the status of those with a pharmacy qualification who were not dispensing pharmacists. In this category are industrial and academic pharmacists, pharmacist legal advisers, pharmacists in the Civil Service and many pharmacists who are non-practising. At the moment, this group comprises in aggregate about a third of the membership of the Royal Pharmaceutical Society. It is currently quite easy to move from the practising to the non-practising register and it is generally accepted that a retired pharmacist can continue to call himself a pharmacist in the same way as a retired doctor can still call himself a doctor.
All that will change with this order. My understanding—it would be helpful if the Minister could confirm this—is that the definition of “practises” in Article 3(2) is drawn widely enough to be able to include those pharmacists who have no direct interface with the public, such as those working in academia or industry. However, use of the title “pharmacist” will now be exclusively restricted to those whose name is on the practising register. Anyone who wishes to be included on the new register will be subject not only to a statutory requirement to participate in continuing professional development but also to paying the not insubstantial registration fee.
For those with pharmacy qualifications who are in professional roles that do not involve dispensing to the public or who are non-practising, the requirement to register with the council may appear excessive. Many argue that there is in practice no risk to the public and no ambiguity in a current member of the Royal Pharmaceutical Society who works as a university lecturer calling himself a pharmacist even though he may not be totally up to speed in the area of dispensing. It is therefore questionable whether corralling all categories of the pharmacy profession within the ring-fence of the General Pharmaceutical Council register is proportionate to the different risks that each of them poses and whether, therefore, unnecessary burdens are being created.
The council has apparently recommended that those current pharmacists who decide not to register with the council could call themselves retired or former pharmacists, but many see this as somewhat absurd if not demeaning for those—many of them very eminent people—who continue to apply their professional knowledge and expertise exactly as they have done in the past. It would also be inappropriate because it would fail to differentiate these working pharmacists from members of the profession who had retired or who had been struck off.
I would be grateful if the Minister could explain why the Government have insisted on taking what appears to be a very hard line on this issue, bearing in mind the points that I have made on proportionality and differential risks to the public. I should also be grateful for an explanation of Articles 34 and 35, which provide for temporary entry into the register or a temporary annotation on someone’s registration in the event of a national emergency. If the only register kept by the General Pharmaceutical Council is to be a register of practising pharmacists—in other words, if the current non-practising register is to be done away with—how will the council have access to a list of relevant people whose names can be temporarily added to the practising register? If, as we are meant to suppose, the council is to maintain a list of such individuals, what will they be entitled to call themselves? What is their legal status? Will it be legal to call oneself a non-practising pharmacist, if one is included on this list, as opposed to the official register?
I question whether the provisions in Articles 34 and 35 drive a coach and horses through the strict rules which would normally apply to those wishing to call themselves a pharmacist. In a national emergency, people would suddenly be able to call themselves pharmacists, even though their qualifications may be out of date—the very thing which we are being told is anathema. At best, there seems to be an inconsistency of approach. If the risk of including these people on the national register in times of emergency is seen to be acceptable, notwithstanding their lack of full qualifications, why is it also not seen as an acceptable risk for someone with a pharmacy degree, or a number of medals or awards, or practising in academia or industry, to call themselves a pharmacist, even though they are not on the council register?
I have a couple of further questions. Article 51 deals with impairment of fitness to practise. I may be jumping at shadows, but Article 51(4) looks odd to me. It says that a person’s fitness to practise may be regarded as impaired because of matters arising outside Great Britain and at any time. I would have expected it to say “because of matters arising either inside or outside Great Britain”, on the premise that what is not explicitly mentioned on the face of a statute or order can sometimes be taken as being legally excluded or of doubtful legal weight. It would be helpful to have the Minister’s comments. I should also be grateful to know what the definition is of “the British Islands” in Article 51(1) and whether it should be taken to include Northern Ireland and the Republic of Ireland. I had thought that Northern Ireland was not involved in this order.
The order makes provision for the council to regulate premises, as well as people, and the noble Baroness mentioned this. What premises are we talking about here, other than retail and manufacturing pharmacies? Does the definition include hospital and prison pharmacies, and if not, why not? It would be helpful if the Minister could say precisely in what sense premises will be regulated, because, as we know from the Health Act which we debated last year, PCTs will also have authority to regulate pharmacists’ premises. Where will the dividing line of responsibility fall? I appreciate that there are currently no statutory standards for registered pharmacy premises within existing legislation, and it is clear that the council has a direct interest in promoting safe and effective practice in pharmacies. However, we do not want PCTs doubling up on this kind of oversight and effectively second-guessing the council by applying a different set of standards. What safeguards will there be to prevent this happening?
I should like to turn finally to Articles 10 and 11 of the order, which deal with the power of entry to premises and the powers of an inspector. In any legislation in which provision is made for these kinds of power, I always think that we should take a particularly close look at the wording to make sure that the powers are framed in a way that preserves an appropriate balance of rights between those who are charged with protecting the interests of the public and those whose privacy is being invaded.
In this case we find wording that appears somewhat vague and, therefore, potentially unsatisfactory. Article 10(1) says that an inspector may, subject to producing the relevant documentation, enter,
“any registered pharmacy or other premises at any reasonable hour”.
“Other premises”, one takes it, could refer to any office or commercial building, but could also include a pharmacist’s private dwelling. Paragraph (2) deals with private dwellings by saying that they may be entered,
“only if 24 hours notice … has been given to the occupier”.
There is nothing about obtaining the consent of the occupier first. I am concerned by such an unfettered power being vested in a body such as the inspectorate.
Paragraph (3) then appears to qualify the preceding provision by creating a series of exceptions under which a justice of the peace may order entry to a registered pharmacy or other premises; for example, if the case is urgent, the occupier is absent or there is a need for an element of surprise or secrecy. Again, one takes it that other premises may include a private dwelling-house. Provided that a justice of the peace can be satisfied on one or more of the four conditions, it would seem that he can issue a warrant authorising entry to someone’s private dwelling-house, by force if need be. At that point, an inspector is empowered under Article 11 to search the premises and inspect and remove anything he likes. He does not have to account for what he does; he does not have to issue a receipt for what he takes; he is not liable to make good any damage caused by forcible entry, provided reasonable force is used; and he does not, it would appear, have to confine the timing of his entry to reasonable hours.
I confess to being troubled by this series of provisions. I ask the Minister whether I have read the regulations correctly. Is she satisfied that these powers are appropriate and proportionate? If so, can she point to equivalent powers conferred on other regulatory bodies, particularly in relation to private dwelling-houses? Under Section 62(4) of the Health and Social Care Act 2008, premises used wholly or mainly as a private dwelling are explicitly excluded from the scope of the power of entry conferred on the Care Quality Commission. What is the justification for giving the General Pharmaceutical Council’s inspectorate these more far-reaching powers?
Amendment to the Motion
To move, as an amendment to the above Motion, at end to insert “but this House regrets that the draft Order gives power to inspectors appointed under article 8 to enter and search any premises, including any dwelling house, without first obtaining the consent of the occupier of the premises or obtaining from a judge or magistrate a warrant authorising the entry and search.”
My Lords, the purpose of this order has already been explained by the Minister. It is to establish a new regulatory body—a new council—to regulate the conduct of pharmaceutical retail businesses, and to set standards for the practice of pharmacy at registered premises. It is a feature of the order that the council must establish an inspectorate, the function of which will be to enforce the regulatory rules made by the council. I believe all of this to be quite unexceptionable and I do not question the desirability of the order as explained by its accompanying Explanatory Memorandum and the noble Baroness.
However, I do question the need for this order to give the members of the council’s inspectorate the right to enter and search private premises without the consent of the occupiers or owners of the premises, and without obtaining any warrant. This point was touched on by the noble Earl. The right to enter and search is not confined, as the noble Baroness’s introduction might have led one to suppose, to a registered pharmacy. It extends to other premises, as the noble Earl mentioned. It is made expressly clear in the same article that it extends to private dwellings. I suggest that to be both unjustifiable and unnecessary, and that is the basis on which I am moving the regret Motion.
In moving the regret Motion, there are only three points that I want to make, although I will have to expand on them. First, such an unfettered right to enter private premises without consent and without a warrant is, and ought to be regarded as, contrary to principle. The second point is that there is no need for such an unfettered power to be given to the inspectors. The third point is that the giving of such powers to regulatory authorities is a growing tendency in statutory instruments. I have had the privilege of being a member of the House’s Select Committee on the Merits of Statutory Instruments since November. In that short time, three or four statutory instruments have provided powers to enter and search without consent or a warrant. The noble Lord, Lord Selsdon, has done much more research on this issue and has unearthed hundreds of instruments granting such powers. The proliferation of these powers is increasing, is unacceptable and ought to be checked.
Before I expand on those points, I draw your Lordships’ attention to the content of the order in a little more detail in relation to the right of inspectors to enter premises without consent or a warrant. The order provides for that power. It makes criminal any obstruction of the exercise of entry. It goes on, oddly, to provide for circumstances in which the inspectors can apply to a magistrate for a warrant or court order to enter. The magistrate may grant the warrant if they are satisfied that there is a proper reason for the application and provided that the case falls within one of four specified situations. The first is that entry has been refused, or is likely to be refused, by the owner or occupier; the second is that making a request for admission or giving notice to the owner or occupier of the desire to enter would destroy the object of the entry; the third is that the premises are unoccupied or the occupier is temporarily absent; and the fourth is that there is some need for urgency. Those four situations cover every conceivable eventuality in which the need to enter premises and discharge the regulatory function might be desired by an inspector.
I return to the three points. First, on the point of principle, there was a debate not long ago on a Private Member’s Bill, the Second Reading of which was sought by the noble Lord, Lord Selsdon. In the course of that debate, the old trite saying was mentioned that a man’s home is his castle—and so it ought to be. The reason why it ought to be his castle and for the origin of that familiar and somewhat trite expression is that it ought to be the place where the homeowner is entitled to repel, to keep out, those whom he does not want to enter his house, and to allow to enter his house those whom he wishes. That is a feature of home ownership and of the respect for a home to which every person is entitled. That is recognised in Article 8 of the European Convention on Human Rights. There are occasions, of course, when imminent emergency or danger to life or limb may require an entry to be made into private premises, including a home, without a warrant, in order to save life or if some serious criminal activity is feared.
Short of that, none of which can apply to the enforcement of this order, it ought to be accepted as a golden principle that it is not open to the Executive, officials appointed by the Executive, or officials appointed by any other person or body acting under statutory powers, to enter private premises—particularly private dwellings—without either the consent of the occupier or the authority of a court order. So much for the principle. I do not know whether the Minister would dispute the validity of the principle—I hope she would not—but if there is to be any derogation from it, that can take place only on the basis of clear need.
Where is the need in connection with enforcing the regulations and rules relating to pharmacies? The order provides for the right to enter premises under a warrant in the circumstances of: refusal or the likelihood of refusal; urgency; nobody being there, and in case giving notice would destroy the object of entry. In all those circumstances, the order provides for a warrant to be applied for. Of course, if the case can be made out then a magistrate will grant the warrant—and warrants can be applied for very quickly. The inclusion of urgency in the situations where that can happen demonstrates that to be so. The need to give these draconian powers to inspectors to enter without a warrant, notwithstanding no consent, is, I respectfully suggest, quite unnecessary and ought not to have been included.
So much for the absence of any need; the proliferation of these powers in statutory instruments is a matter of fact. On the occasions when those powers have been found in statutory instruments that have come before the Merits Committee in the short time that I have been a member of it, the answer has always been: “Well, these powers have been there and we have enjoyed them for a long time. There it is—what’s the matter with them?”. That is not a demonstration of need; it is not really an excuse.
When the pharmacy order came before the Merits Committee, the committee inquired of the department why this power to enter without consent and without a warrant had been included. The answer that the department provided was of some surprise at the question being asked. The power had been there, it said, in similar terms ever since the Medicines Act 1968. I looked at that Act, and there it was: the power to enter without consent and without a warrant, followed by all the comprehensive circumstances that I have already outlined in which a warrant could be applied for. What, then, was the need in 1968? No answer; these powers had simply always been there and have found their way not simply into this statutory instrument but into others.
The lack, as it seemed to me, of a proper answer from the department was followed by a communication from an official of the Royal Pharmaceutical Society, who asked if he could come to see me and talk about the order. I think that he was concerned at the delay that my regret Motion was causing to the implementation of the order. I arranged to meet him at that royal society’s premises—just on the other side of the river—and put the questions to him. What was the need for this power to enter without a warrant and without consent? I also asked him how often the inspectors were refused admission and how often it was necessary to apply for a warrant. Had the society ever brought a prosecution against some pharmacist for refusing entry that had been requested? He did not know, but said that he would inquire of the chief inspector and come back to me.
Last Wednesday, the official sent me a very helpful and illuminating response from the chief inspector. She said that she had looked into the matter and that, over the past 10 years, there had not been a single occasion when a warrant had been applied for or when admission had been refused on request. There had therefore been no prosecutions brought. The chief inspector went on to say that the powers that had previously been enjoyed under the Medicines Act and those that were proposed to be continued under this order were necessary. However, I suggest that the evidence was against her. How could the absence of a need ever to exercise the power to apply for a warrant show that that power would not by itself be sufficient to discharge the purposes of the inspectors? Consent or a warrant would, I suggest, plainly be sufficient on the evidence of the past 10 years, to which I have referred.
The question is whether a power to enter without consent or without a warrant is permissible and acceptable. Perhaps the proper treatment of this question should be to require the inspector to ask for consent. On the evidence, he would expect to get it. However, if on the very odd occasion he did not get it or did not think that he should warn the pharmacist by asking for consent, he should apply for a warrant and there would be no difficulty about him gaining entry. The requirement of a warrant in the case of disagreement would introduce an acceptable form of control over the power to enter.
A lot is heard about the importance of the rule of law. The rule of law should mean that invasive intrusions into individuals’ homes ought not to be tolerated unless franked by a court order. That is what courts and judges are for. The proposition that obtaining a warrant is merely an optional extra is, I suggest, not satisfactory. On those grounds, I invite the House to agree that regret should be expressed at the inclusion in this order of unnecessary, illogical and unjustifiable powers of entry without consent and without a warrant. I beg to move.
My Lords, I thank the noble Baroness, Lady Thornton, for introducing this substantial and long-awaited order. It has taken some time to come to us but I am very glad that it has done so. I am pleased because there is widespread consent regarding the main thrust of the order. The introduction of a new regulator, the General Pharmaceutical Council, is welcomed by pharmacists and by the Royal Pharmaceutical Society. It is now, I think, accepted—certainly throughout the medical profession—that the regulator and the professional body should not be one and the same, and the ability of one body to carry out those two functions is now somewhat called into question. This regulation builds on Trust, Assurance and Safety, the report which arose not least from the evidence that came to light during the Harold Shipman case about the abuse of drugs, the failure of the system to pick up the abuse of drugs and the way in which a doctor was able to abuse pharmaceuticals in order to commit a crime.
It is also a very welcome move because, as those of us who have had the joy of sitting through the passage of various Bills in the House know, the role of pharmacists is changing. It is changing almost out of recognition compared with, say, 10 or 20 years ago, when the role of the pharmacist was to execute the orders of a doctor. Nowadays, pharmacists take a much wider role in healthcare, and they take a far greater responsibility in the advice that they give about pharmaceuticals and about the maintenance of people’s health, particularly those with long-term conditions. Given the high degree of training which pharmacists have, it is right that their increasing role within healthcare should be recognised.
As the noble Baroness will know, one of my colleagues in another place, Sandra Gidley, is a registered pharmacist and one of my colleagues here, my noble friend Lord Kirkwood of Kirkhope, was a pharmacist. I do not know whether he is allowed to call himself a pharmacist any more—he is probably a retired pharmacist, as I suspect that that is going quite a long way back. Both of them have said that, although there are some questions about it, this is an important order, in that it gives the new regulator power to foresee the changes that will evolve over the next five to 10 years in the role of pharmacists. They will have a much bigger, more direct role in interaction about healthcare with individuals.
I want to raise a few specific points with the noble Baroness, and then I shall return to the point raised by the noble Lord, Lord Scott. One issue that has arisen is that pharmacy now takes place in a number of different settings. It takes place in GP centres, in hospitals, in private hospitals, in retail premises and in industry, as the noble Baroness said. The practice of pharmacy in those different settings comes with a different set of issues.
One point raised by my honourable friend in another place is the role of the regulator and its powers in relation to the employers of pharmacists. They seem to be very limited. The demands of an employer on a pharmacist—let us say, in a retail setting—can be very different from those in a hospital. The number of people around a pharmacist—peers capable of exercising professional checks, balances and judgment—is very different in a retail setting from in a hospital.
Another point is the dimension about devolved legislatures, and the extent to which the regulations will apply. I understood the point made by the noble Baroness about the Pharmaceutical Society of Northern Ireland. I say to the noble Earl, Lord Howe, that I think, from my days studying for geography A-level, that British islands include the Channel Islands and the Isle of Man. They constitute the British Isles. Great Britain and Northern Ireland includes Northern Ireland. Therefore Northern Ireland is not a British isle. I hope that I am proved right on that one.
I make the point that, in Scotland, the law is different. Although the professional standards set out may be ones which the profession in Scotland wants to take on board, the way in which they are applied needs to be the subject of a lot of consultation. In addition, there must be recognition that pharmacists, like many other medical professionals, move around within the EU. In the drawing up of the order, has there been consultation about standards in other member states of the EU, particularly on the issue of a person's fitness to practise. Will there be a form of common assessment? My understanding is that, at the moment, there is no way to prevent a person moving to another EU country when they have had their fitness to practise rejected here and setting up as a pharmacist.
One other point concerns the race equality statements. As noble Lords will have seen from the regulatory impact assessment, a disproportionately high number of pharmacists come from Asian communities. A point made by my honourable friend in another place, Sandra Gidley, is that there is a sense among those pharmacists that a disproportionately high number of them are being referred to bodies questioning their fitness to practise. Is that the case, and is that an issue that the department will monitor?
On the issue of costs, the order represents an increased level of regulation which I presume will have to be paid for by levying additional fees on practising pharmacists. I do not know whether these costs have been estimated, but other regulators have found that the more they have engaged in adjudication of fitness to practise, the greater the costs incurred.
The noble and learned Lord, Lord Scott, has raised an important and interesting issue. I, too, am left wondering why there is not an automatic need to go to a justice of the peace in order to obtain a warrant. I have read the detailed response from the Royal Pharmaceutical Society, which answered a number of the questions quite rightly raised by the noble and learned Lord. I understand from the briefing that there are good reasons why private premises should be entered. The Royal Pharmaceutical Society inspectorate has cited cases where its officers entered private premises because, for example, they had received information indicating that medicines were being stored in and services provided from a resident’s home; or there were serious cases where dwellings or garages were being used as places in which to tamper with medicines, where unlicensed medicines had been inappropriately stored or where medicines were being supplied from the house. So it is conceivable—although perhaps not in the past 10 years—that there have been good reasons why the inspectorate would wish to enter a private dwelling. Quite why it feels the need to do so without a warrant is open to question.
I should say to the noble and learned Lord, Lord Scott, that it is just possible that the existing regime whereby professional colleagues have the power to enter one’s home to check on one’s professional standards could have been a powerful deterrent to people not to break the law. I have often spoken to members of other parts of the medical profession and they have talked about how the potential that they might end up in front of the GMC and some of their peers is a very powerful deterrent on them not to contravene the ethics of their profession. In some cases they have said that it is a much more powerful deterrent than the law. The noble and learned Lord, Lord Scott, is right to raise the issue but there is a side to it that perhaps he and I should explore further with the Royal Pharmaceutical Society.
My Lords, I am perfectly prepared to accept, as the noble Baroness, Lady Barker, has said, that there may well be circumstances where it is proper for an inspector appointed under this order to gain entry to and inspect premises, but the central question to the amendment is whether the power should be exercised without the consent of the occupier—the registered pharmacist, let us say—and without the benefit of a court order. I support the noble and learned Lord, Lord Scott, because he is absolutely right to base his case on the fact that entry without consent and without the benefit of a court order is contrary to principle. I should like the Minister to tell us whether the Government accept that it is contrary to principle. There are many circumstances in which it is legitimate to go against a principle, but they depend essentially on exceptional circumstances of which probably the most important is necessity, as the noble and learned Lord said. So what necessity is perceived by the Government in drawing this power as widely as it is drawn?
I suggest that this is a glaring departure from principle and one that is not justified by any perceived necessity. Why is it glaring? It is glaring because the council can make any order that it likes, consistent with the powers which the statute gives it. Article 9 states:
“The Council must make provision in rules relating to … the circumstances in which inspectors may conduct special inspections of, and other visits to, registered pharmacies”.
If one looks a little further, one can see that, within its overall purposes, the council has carte blanche to make any rule it likes. Once it has done so, all the panoply of powers which this order confers on inspectors becomes available. So it is a glaringly wide departure from principle and one for which it is very difficult to see any justification when one approaches it, as I do, without knowledge of the Government’s case. So I hope the Minister will say, first, whether the Government accept that it is contrary to principle to have a power of entry without consent and without a court order, bearing in mind that the court order provisions here are permissive and not obligatory, and secondly, whether she perceives any necessity for a breach of that principle.
My Lords, as I have tabled the Powers of Entry Bill, it is inevitable that I should say something on this matter, but I will be brief. First, I thank the Minister for her interest in the pharmaceutical industry and remind her, although she needs no reminding, that at the moment, with our manufacturing industries fading away, pharmaceuticals represent possibly the best in the country, with £7 billion of investment in research every year and a surplus of £6 billion. Within that, it is a fairly responsible industry.
The problem that we have had over a period of time has been the failure of Government to know their own powers. Will the Minister let me know what her own departmental powers of entry are? By my calculation, she has a total of 75 powers and will have another one added today. Thirty-eight—or half—of those powers are under Acts of Parliament and the other half of them are under regulation. Are they really necessary? In particular, is it appropriate that one should have the right to visit or enter someone’s property or premises without permission and without a court order?
It is a little worrying that we have a Government who have no knowledge of the 1,208 powers of entry they have under regulation and under Acts of Parliament. Over the past five years I have asked questions of every ministry as to what their powers of entry are. I would appreciate it if the Minister felt able, at an appropriate time in a few weeks or so, to write me a letter answering the question about the powers of entry of the Department of Health.
That is only a minor issue. The real concern is that, if neither Government nor people know what their powers of entry are, we have a breakdown of democracy. It is a relatively easy matter to put right. What I have suggested is that there should be simply a schedule of all those Bills and Acts of Parliament that give powers of entry and how they should be implemented. The simple principle is that one should not be able to enter a person’s property or premises without permission and a court order.
One of the difficulties is that powers of entry originally had a relatively small clause. In most Bills now, the number of pages entitled to implementation of powers of entry are possibly three times as many as the content of the Bill. The health Bill which we discussed earlier was relatively short, but the regulations and matters that went with it were enormous. I should be grateful if the Minister could confirm what her powers of entry are—as the Department of Health—and, of course, I naturally support the proposal of the noble and learned Lord, Lord Scott.
My Lords, it is clear that the House owes a great debt to the noble and learned Lord, Lord Scott, for raising this matter. It is a very important subject, which I predict will grow in importance. It is to the credit of the House of Lords that, very largely due to the initiative and hard work of my noble friend Lord Selsdon over a number of years, it is taking seriously this important issue.
It is particularly useful to draw to the attention of the authorities of the House the role in this of the Merits of Statutory Instruments Committee. Years ago, I was on the old Statutory Instruments Committee, and very boring it was, because all we had the power to do was to look at powers; in other words, the vires. All we had to say was whether the statutory instrument in question had vires as drafted under the legislation or whether they were Henry VIII clauses. Now, the committee looks at the merits of statutory instruments, which is a big advance. I suggest that, from now on, that committee should always consider whether there are powers of entry in a statutory instrument, whether they are appropriate and necessary, and whether they contain proper safeguards against powers which are disproportionate, particularly powers of entry without warrant. The golden principle to which the noble and learned Lord referred, of the right, particularly of the householder or a landholder, to keep people off their property without due cause for entry, must be revived—it dates right back to Magna Carta.
I am disappointed that we should need to discuss this matter tonight, because we had heard that the Government were seized of its importance at the Second Reading of my noble friend’s Bill; indeed, I remember the Prime Minister himself expressing interest in powers of entry last year. Well, his influence may be fading. It is extraordinary that, with the decision that there should be a co-ordinated approach, we have so unjoined-up an example of government as this. I ask the Minister to say directly and honestly—of course, she will be honest—whether the Department of Health consulted the Home Office before drafting the clauses in question, because, apart from anything else, they seem to be extraordinarily badly drafted. As the noble and learned Lord pointed out, they contain perfectly satisfactory conditions for powers to be used with a warrant, but they are then all overridden by loose and sloppy wording which appears to allow entry without a warrant. That is wholly unacceptable.
If we were to pass the amendment—and I shall certainly support the noble and learned Lord in the Lobby if he chooses to take the opinion of the House—it would not affect either the implementation of the order or the speed with which it is done; it would merely put down a marker very publicly, as I hope to some extent this debate will do.
There is a real danger of antagonising the public with this plethora of powers of entry without a warrant. How can it be that, if the police need warrants in almost all cases, the same should not apply to the great number of other inspectorates, which is growing every year? It is absurd that they should not need them. We recognise that there are circumstances when everyday powers are needed; there is general consent about that. The trading standards people have to be able to visit premises as and when they wish. They do not need a warrant and there is no objection because the visits are an essential aspect of their role.
Another issue that has come up in recent years is the need for more direct powers in respect of the protection of children, but in my view the right approach to that is for a case to be made to a magistrate when someone is thought to be at risk. A continuing power would be given for the appropriate people to visit those premises as and when. In itself that would be a safeguard because of the failure of social workers to do their job properly by entering premises to check on some wretched child who is being neglected or abused. It would be much harder to justify with the melange of excuses we always hear after a case has been exposed because the first question would be: “Did you or did you not apply to a magistrate for proper rights of entry to check on that particular case?”. In that area, it would be a huge plus to require there to be a magistrate’s warrant.
It is a good thing that we have discussed this issue and I hope very much that the Government will agree to accept the amendment. I hope that it will not be implied that we are wasting parliamentary time in discussing this little matter. The noble and learned Lord has made the case very clear, and he has taken trouble to consult, that there is no conceivable need for this power to exist, especially since the order itself lays down clear conditions under which a warrant could be obtained. It is the overriding provision that has been slipped in which is unacceptable. Perhaps the Minister will tell us that it was all a mistake, that they never consulted with anybody, and that they do not have good legal people in her department.
My Lords, having sat on the Bench on which the noble Baroness is now sitting, I know that it is infused with a reflex which all government Ministers have to amendment of this sort, which is to resist them. In some way they clip a feather on the end of the wing of government. I hope she will resist the reflex, or at least when she is not in her place tomorrow, she will read the sage and powerful words of the noble and learned Lord, Lord Scott of Foscote. To me he has made an unanswerable case against this regulation, but he merely wishes to express regret rather than opposition, which I would have gone further and done. I will not repeat any of those arguments, but would ask her to take them on board.
I shall be exceedingly brief because I sympathise with all the noble Lords now on the Front Benches in the Chamber. They have been in their places for much longer than me and I do not think that they have had their supper yet, and therefore perhaps will not be as alert as one might otherwise expect. I merely want to pick up on the point made by my noble and learned friend Lord Mayhew, and that is the point of principle. We should remind ourselves from time to time what Parliament is for. It was set up to protect the citizen from the Crown, and as the Crown has proliferated, it has the function of protecting the citizen from the overmighty subject. The corporate subject is now overmighty in many cases. In this case, the corporate subject—the inspectorate—has been given powers that are not commensurate with what are needed. That has been quite clearly stated and convincingly, conclusively stated by all my noble friends on the Back Benches.
If the Government accept that it is a matter of principle that before anybody can intrude on a person’s premises they should have the authority of law, we should have been reassured by what the noble Lord, Lord Brett, the Minister’s colleague, said a fortnight ago last Friday when replying to the debate on the Bill proposed by my noble friend Lord Selsdon. On the concern that everybody had and which he shared about the control of powers of entry, he said:
and this was intended to be reassuring—
“as noble Lords are aware, each individual power of entry is subject to parliamentary scrutiny. Any proposed new power of entry contained in a Bill or draft statutory instrument must complete the relevant parliamentary process”.—[Official Report, 15/1/10; col. 733.]
That is exactly what we are doing now, and we are going to let it through. We are not reassured by that but deeply unhappy, and I am even more unhappy with the vast phalanxes of inspectors of different organisations with similar and similarly uncontrolled powers that appear to exist. I hope that in the next Parliament this is a wrong that will be redressed.
My Lords, I start by recognising the distinguished work and record of the Royal Pharmaceutical Society of Great Britain, which I omitted to mention in my opening remarks. I should like to rectify that and say how grateful we are for the wonderful work that it has done over a very long period. I intend first to deal with the issue of the rights of entry, which have been raised by several noble Lords. I also read with interest the note that the royal society sent to the noble and learned Lord, Lord Scott. I also note that in the process of preparing for this I failed to find anything in the Merits Committee’s report on this issue to suggest that this was a key issue of concern for it in its examination of the order.
I know from the words of the noble and learned Lord, Lord Mayhew, and the noble Lords, Lord Selsdon, Lord Marlesford and Lord Elton, that this is a broader issue that needs to be discussed across the piece. Therefore, it is unlikely that I shall be able to satisfy them tonight. However, I note that this is a campaign to which we will return. The noble and learned Lord, Lord Scott, has explained to me in writing and in person his broader concerns about this matter, for which I am grateful.
Why does the inspectorate need the power to enter an individual’s private dwelling without obtaining a warrant? I shall read through my brief to get this into the record. It may not satisfy noble Lords, but I need to say these things and will then seek to answer some of the specific points raised.
These powers are needed because of the different business models which may operate from registered pharmacy premises. Examples include an application to register the bedroom of a private flat as an internet pharmacy or registered pharmacies that operate from the ground floor of private dwellings with the upper floors or outside storage areas designated as living space. Inspectors have to ensure compliance with standards for storage of medicines that may be in those areas designated as private dwelling space. Access to storage areas may also cross into private dwellings via hallways, stairs and so on. The noble Baroness, Lady Barker, outlined the issues well in her remarks.
Article 10(2) of the order provides that an inspector should give 24 hours’ notice of the intended entry into premises that are, or form part of, a private dwelling- house. This is not intended to give an inspector a power to enter such premises without consent or by force. Article 10(3) covers the position when entry has been refused, in which case an inspector must apply for a warrant. The possibility of refusal of entry without a warrant is specifically catered for in Article 10, which provides alternative measures that the inspector will be required to employ in order to exercise their functions. This involves obtaining a warrant.
This country has a very good reputation for preventing the unlawful supply of medicines and preventing counterfeit medicines from entering the supply chain. This is a credit to the work of inspectors like those of the pharmacy regulator and those of the Medicines and Healthcare products Regulatory Agency. The same powers authorise the inspectors of the Veterinary Medicines Directorate, who inspect businesses such as saddlers and merchants who supply riding saddles and tack as well as veterinary medicines. Many of these businesses operate from farms where the shop and stores form part of the private dwelling. In the vast majority of cases, registrants are compliant with requests to enter premises without recourse to the formal powers. However, there are some cases where these powers are needed and must therefore be provided for. This is therefore a transfer of powers, not an addition. In our view, it is not an issue of principle but an issue of transferring powers.
The noble Lord, Lord Selsdon, startled me for a moment, I confess, when he asked me personally what my powers of entry were. Sorry to be flippant, but I was thinking, “Have I got my keys with me for tonight?”. I will have to write to him about the department’s powers of entry specifically, and I undertake to do that.
I say to the noble Lord, Lord Marlesford, that I do not regard this as wasting Parliament’s time; it is an important issue, and I am certainly very happy to discuss it.
The noble and learned Lord, Lord Mayhew, raised the issue of whether the order allows any rule to be made. The answer is no, the rules must be subject to consultation and laid before Parliament and the Scottish Parliament for negative resolution after approval by the Privy Council.
The noble Lord, Lord Marlesford, asked whether the department consulted the Home Office. No, we did not consult the Home Office; we consulted the Ministry of Justice and it was content.
The noble and learned Lord, Lord Scott, was questioning the Medicines Act 1968 provisions of entry and inspection. That Act is also the vehicle that provides the entry and inspection powers of the Medicines and Healthcare products Regulatory Agency, so they protect the medicine supply chain in this country.
The noble and learned Lord also asked about warrants and inspectors’ powers and why the inspectorate cannot obtain a warrant after being refused access rather than having the power to gain access in the first place. Article 10(2) of the order provides that an inspector should give 24 hours’ notice of the intended entry to any premises that are or form part of a private dwelling- house. This is not intended to give an inspector the power to enter such premises without consent or by force. Article 10(3) covers the position where entry has been refused in which the inspector must apply for a warrant, and I think that I have already explained that to the noble and learned Lord.
I think that my remarks so far also cover most of the points that the noble Earl, Lord Howe, raised about powers of entry.
My Lords, the Minister has drawn our attention to the fact that there is a protection of private dwelling-houses, which had not escaped my notice, but all other premises are not protected by those provisions. Those are also a matter of great concern.
I had sort of assumed that that was the case, but I take note of what the noble Lord has said.
The noble Earl, Lord Howe, asked why there are different powers of entry for the Care Quality Commission’s inspectors. These powers stem from existing powers under the Medicines Act 1968 and the Poisons Act 1972, and are about safeguarding medicines and the poison supply chain.
I turn to the detail of the noble Earl’s question. We were asked why the GPhC has chosen to take such a hard line on the restricted title. We consider that the titles “pharmacist” and “pharmacy technician”, rather than “registered pharmacist” and “registered pharmacy technician”, are those that hold the most meaning for patients and the public, a view that was supported by the feedback from the patient and public consultation event. The title “pharmacist” is already restricted, under the Medicines Act 1968, to those who are on the register of the RPSGB, and we are not proposing to change the protected titles. The consultation on the draft Pharmacy Order 2009 proposed that the titles “pharmacist” and “pharmacy technician” remain restricted to those who are on the register of the General Pharmaceutical Council and therefore have met all the registration requirements necessary to satisfy the regulator that they are fully qualified, competent and fit to practise.
The key principle shaping the development of our proposals on protected titles is that the primary focus of the new regulator for pharmacy, the GPhC, should be on public interest and patient safety, and that individuals should not mislead the public as to the currency of their restricted status, skills and knowledge. The same issue of restricting titles to regulated individuals was raised by retired dentists during the passage of the Health and Social Care Act, as noble Lords will recall. Their move to allow retired and former dentists to carry on using the title was rejected, and they were also very upset by this. Allowing pharmacists to lessen the restrictions on their title may reopen the debate for other professions—and I think it probably will; this is one of those issues that will roll on.
Pharmacists currently on the non-practising register can apply to join the practising register either prior to or post the transfer of the regulatory functions to the GPhC, although they may be subject to return-to- practice requirements. In addition, those pharmacists who are currently on the non-practising register can choose to join the professional body for pharmacists if they wish to keep in touch with the profession.
The noble Earl asked what happens to people qualified as pharmacists but not in a dispensing role, in particular in industry or academia. There are two issues here. First, all domains where pharmacists practise, whether it is the NHS, the independent health sector, academia or industry, have both system and professional regulation. The regulation of products or services does not mean that individual healthcare professions do not have professional responsibilities. Secondly, there are clearly roles in industry where there is a personal choice whether the individual registers as a pharmacist or not. The draft Pharmacy Order 2009 set out the Government’s view of what is required for registration. After that, the individual must decide whether they want to continue to use the restricted title “pharmacist”, and if they do, they must register.
Our view, which is supported by the response to the consultation on the draft Pharmacy Order 2009, is that to restrict regulation merely to those with patient-facing roles would leave those involved in the development of medicines, teaching and leadership with no statutory requirement to maintain their levels of knowledge or skills. In some circumstances, this may present a risk to patient safety.
I have dealt with the issue of retired pharmacists. The noble Earl asked why, if the plan is to allow retired pharmacists to register as pharmacists during an emergency, they cannot be allowed to register during normal times. The planning for emergencies, such as an influenza pandemic, includes worst-case scenarios where significant numbers of the population are affected; in particular, front-line healthcare staff. If these scenarios ever became reality, the recently retired would be called upon, as would final-year students. These are extreme measures—not just for pharmacists but other medical professions too—for use in a national emergency, and it is appropriate to plan for that. The body that would have the names of retired pharmacists would indeed be the professional body for pharmacists. As I have said, those who were interested in continuing a link with their profession would be listed there.
The technical question about Great Britain was exactly as the noble Baroness, Lady Barker, outlined. The British Isles are the UK plus the Isle of Man and the Channel Islands. The reason for putting it in these terms is that we would want to be aware of any offences committed in British islands outside Great Britain. Professionals from Northern Ireland, the Isle of Man and Channel Islands are eligible to register with the GPhC with no further requirements than those living in Great Britain.
I think that that has covered most of the points raised. I was asked whether, in Article 51(4), we meant inside or outside and by specifying “outside” we had inadvertently not covered the inside of Great Britain. The extent of the order is covered in Article 2 and specifically states that it covers England, Wales and Scotland. Anything that happens outside is pertinent to fitness-to-practise decisions. We are confident that we have achieved the desired outcome.
The noble Baroness, Lady Barker, raised the role of the employer. The GPhC will have powers to set standards and rules for pharmacy owners and superintendent pharmacists. The standards and rules require a framework for quality and improvement. However, it is for primary care organisations who commission services to assess whether the staffing and skill mix are sufficient to deliver specific contracts. The noble Baroness will be aware that primary care contracting arrangements are different in each of the three countries. Therefore, it would be inappropriate for the regulator to stipulate standards in these areas. The noble Baroness is completely right that the situation with pharmacists is evolving. The demands being put on pharmacists will change and be greater, I suspect, as we move forward.
The noble Baroness raised concerns about fitness-to-practise cases and suggested that those involving ethnic minorities were potentially disproportionate. I will take that back to the department and ask that question, but the GPhC, by virtue of the provisions of the order, will be under a duty to publish in its annual report a description of the arrangements that the council has put in place to ensure that it adheres to good practice in relation to equality and diversity.
The noble Baroness asked about the cost of the GPhC and the setting-up fees. The cost impact assessment that accompanies the order suggests that the base annual costs for regulation being incurred by the RPSGB have been assessed at £12,518,182. The non-recurrent transitional costs of £4,384,559 incurred or planned for 2008-09 and 2009-10 have been included. In addition, the annual running costs of regulation through the GPhC have been assessed at just under £3.5 million. Those costs were included in the calculations under fees to be charged.
The noble Baroness also asked about the common assessment for European professionals. The European legislation means that the regulator will need to recognise EU healthcare professional qualifications. The powers under the order allow the regulator to obtain certificates on the practice of good standards. I hope that that answers all the questions, if not all satisfactorily.
Before the noble Baroness sits down, I may be able to save her some work. Instead of her writing to me, I will write to her tomorrow with the schedule of all the Bills. She can then confirm to me if it is correct, because I do make mistakes.
Thank you very much.
My Lords, there are three things I want to say in reply in support of my amendment. First, the Minister suggested that if an inspector were to enter premises without a warrant and were turned away, that would not by itself be a criminal offence. I believe her to be wrong about that. The terms of Article 10 are quite clear. Article 10(1) says that:
“An inspector, on producing evidence”,
of who he is,
“may, for the purposes of the exercise of a function conferred on the inspector by article 8 … enter any registered pharmacy or other premises at any reasonable hour”.
That is a right given to him by Article 10(1). Article 12 says that:
“Any person … who intentionally obstructs an inspector exercising functions under article 10 or 11 commits an offence and is liable, on summary conviction, to a fine”.
Nothing there suggests that it is necessary before a criminal offence is committed for the inspector to get a warrant. There it is: a right to enter, without a warrant, obstruction of which is a criminal offence.
That is an outrageous piece of legislation. The fact that it has been in place since 1968 in a primary Act of Parliament does not make it any less outrageous; that makes it worse. It has sat there for years, providing the precedent for repetition in other instruments—I hope not in other primary Acts, but there may be some—and I respectfully suggest that it is time this was recognised and stopped.
I entirely accept the point of the noble Baroness, Lady Barker—also made by the noble Baroness, Lady Thornton—that there will be times when inspectors need to get into premises quickly without the owner or occupier knowing. That may happen. The fact that it has not happened within the past 10 years, as seems to be the case, does not mean that it may not happen in future. If that is the position, the inspector should get a warrant. The owner of the premises does not know: warrants are applied for ex parte, without notice to the owner of the premises. It is no justification for allowing entry without a warrant; a court should control that situation. The regret that this Motion invites the House to express is one that is long overdue. I beg to move.
1 February 2010
Division on Lord Scott of Foscote’s amendment.
Amendment disagreed.View Details
Bournemouth Borough Council Bill [HL]
Returned from the Commons
The Bill was returned from the Commons agreed to with amendments.
Manchester City Council Bill [HL]
Returned from the Commons
The Bill was returned from the Commons agreed to with amendments.
House adjourned at 9.52 pm.