House of Lords
Monday, 16 March 2015.
Prayers—read by the Lord Bishop of Winchester.
Income Tax: Top Rate
My Lords, there was therefore an £8 billion increase in revenue as a result of lowering tax by 5%. Would my noble friend agree that Labour’s policy of putting the tax rate back up would not increase revenue, but rather discourage entrepreneurs, who are so responsible for increasing employment?
My Lords, does the Minister recognise, along with most analysts, that the figures that he has just given have probably been distorted by the practice of forestalling? Does he realise that such practice by some top rate taxpayers meant that they delayed their returns from 2012 to 2013 to take advantage of the 5% top rate tax cut in the following year, after it was announced in the 2012 Budget? Instead of drawing glib conclusions from the figures that he has given, would he and Her Majesty’s Revenue & Customs not realise that each 1% increase on the top rate of income tax can generate an extra £1.1 billion? Therefore, a cut can lose £5 billion in any year following the first year after the tax cut. When we have—
My Lords, I am afraid that the noble Lord’s figures are just completely wrong. The figures produced by HMRC, which I am sure he has read, showed that its central estimate of the effect of reducing the top rate from 50p to 45p was a cost of £100 million, against which should be set—among other changes that this Government have made that exclusively hit the very affluent—the changes in disguised remuneration, which brought in £3.5 billion this Parliament, and the reduction in pensions tax relief, which will bring in £5 billion a year.
My Lords, following up on the question from the noble Lord, Lord Kinnock, does the Minister accept that a by-product of the much welcomed coalition pressure on banks and other organisations in the City to reduce bonuses, which I assume is welcomed by the Labour Party, has been a reduction in tax revenues?
My Lords, there has been a reduction in the amount paid in bonuses in the City. This will undoubtedly have meant a fall in the amount of tax on those bonuses, but I am sure that the whole House will welcome that development and hope that it will lead to something of a change in bank culture.
My Lords, I refer the Minister to a recent ONS study which looked at the combination of direct and indirect taxation and found that the group paying most—paying more than the really well-off—was in the bottom quartile. Is not the big social injustice in the tax system in this country that the poorest are indeed paying the most? That is not helped by the Chancellor, George Osborne, and his cohorts rubbishing social security and welfare payments. Does the Minister not agree that that only compounds and exacerbates the problem that we have in our iniquitous tax system?
But, my Lords, the top 1% of income tax payers is now paying between 27% and 28% of all income tax, which is a higher proportion than at any point during the last Labour Government. The two changes that I have mentioned, which bring in more than £6 billion extra a year, apply only to the highest earners.
My Lords, despite the comments of the noble Lord, Lord Kinnock, is it not true that lowering tax rates increases revenue, and does that not make it rather surprising that the Liberal Democrats are not prepared to lower the top rate to 40%?
My Lords, does the Minister not acknowledge that in fact the very wealthy have various stratagems for reducing the impact of taxation? That is why, whatever the Government do, it does not produce the resources that the nation needs. Why does the Conservative Party not drop the idea that supporting the wealthy will somehow lead to a trickle-down advantage for the rest of the community, when the disparity between the wealthy and the poorest in our society is growing wider, and why do they not address themselves to the real issue, which is that the vast majority of people in this country are poorer under this coalition?
My Lords, I do not know which bits of that question to deal with first. However, given the time, I just point out to the noble Lord that the group of the population whose income, by percentage and absolute amount, has suffered most and which has lost the most is the top 20%. They have seen a 3% cut in their income, which is a greater cut than has been experienced by any other tranche. The noble Lord does not like it because it is an inconvenient truth, but it does not stop it being a truth.
My Lords, does my noble friend the Minister agree that during the life of this Government corporation tax has fallen from 28% to 21% but corporate taxation revenues from companies has increased from £35.8 billion to £39.3 billion? That underlines the point made by my noble friend Lord Borwick that a decrease in rates of tax helps to increase revenue, reducing the biggest problem that we face at the moment—the deficit.
My Lords, it is important to have competitive corporate tax rates, which is why we have reduced them, although it is obviously the case that you reach the point as you are reducing taxes when you lose revenue. The trick is to get the balance right, which is what we have done by reducing corporation tax, for example, and by putting capital gains tax up very significantly from the level it was under the Labour Government.
NHS: Health and Social Care Act 2012
My Lords, the Act created the architecture within which NHS England’s innovation, health and wealth strategy is being implemented. As part of this, the innovation scorecard shows a real improvement in the uptake of certain NICE-approved innovations. The NICE implementation collaborative has also resulted in increased national spend on key technologies. The department and NHS England have commissioned an independent evaluation of innovation, health and wealth, which is expected to be completed by winter 2017.
I am grateful to the noble Earl for that Answer, but does he recognise that there is a significant gap between those fine words and what is actually happening on the ground? To take the case of giant cell arteritis, for example, 2,000 to 3,000 people go blind needlessly as a result of it. I hope the House will indulge me for a few seconds if I set out this important example. The condition is easily treatable. Professor Dasgupta, in Southend, has pioneered a fast-track pathway for diagnosis and treatment which has reduced the numbers of people going blind by two-thirds. Rolled out nationally, that would save thousands of people every year from going blind. It would save them and their families needless misery and suffering and would save the taxpayer hundreds of millions of pounds every year.
In January, Sir Bruce Keogh, the medical director of NHS England, wrote to me and said that this “represents a new way of doing things which is better and costs no more. We must learn from such innovative examples”. Is the Minister aware of what has happened since he wrote to me? Thousands of people have gone blind—
Noble Lords opposite ought to listen to this; the people who suffer most from this are elderly and it is very much in their own interests to listen. Nothing has been done to roll out this innovative pathway. Can the Minister not accept that having a few guidelines is simply not good enough? Can he not accept that since the Health and Social Care Act came in, there has been no good example of good practice in this area?
My Lords, I recognise the noble Lord’s close interest in this important topic. We recognise that early diagnosis and treatment of giant cell arteritis is extremely important to preventing sight loss. I am aware of the interest in the Southend GCA pathway developed by Professor Dasgupta. I recently raised the issue of the pathway with NHS England and understand Sir Bruce Keogh will be writing to the noble Lord very shortly about this. As he may be aware, the Royal College of Physicians has produced a best practice guideline on the diagnosis and management of GCA, which Professor Dasgupta has helped to develop. That is good progress and provides a very good framework for disease assessment, immediate treatment and urgent referral.
My Lords, the noble Earl has been answering health Questions for nearly five years now with courtesy and skill. How does he feel, as possibly the sole apologist, other than Mr Andrew Lansley, for the Health and Social Care Act 2012? What is his response to the independent King’s Fund, which described the Act, which the noble Earl piloted through this House with great skill, as having an impact that was both “damaging and distracting”? Is that not the real answer to my noble friend? The reason he has identified a problem and a shambolic decision by NHS England is that we have a shambolic organisation, which this Government are responsible for.
If I had to single out two or three things from that Act which have been of enormous and incomparable benefit, one would be the enhancement and promotion of clinical leadership within the system, which has happened as a result of the creation of clinical commissioning groups. The second is the creation of Public Health England and the transformation of public health delivery in this country. The third is the separation of elected politicians from the running of the health service, which has enabled the NHS to free itself up to look at innovation in a more creative way
My Lords, it would be churlish not to accept the noble Earl’s remarks that there have been some changes which have been beneficial. But does he not agree that the public at large recognise that overall there have been many downsides? Many of those downsides have been hidden and continue to be hidden by politicians, who refuse to release the risk register that was drawn up prior to that Act going through.
My Lords, we are back to that one. As the noble Lord knows, the strategic risk register for the department is something that we are entitled to keep confidential, as all Governments have done. The Cabinet took the decision that the transition risk register should remain confidential because of the principle of the need to preserve private space for civil servants when advising Ministers.
My Lords, some months ago I led a debate on the lack of clinical governance between health and social care. I was promised a meeting with the noble Earl by the noble Baroness, Lady Jolly. One of the big problems is the fact that there is no governance framework between health and social care, and as a result a lot of people are falling into a black hole. Can the noble Earl say when that meeting will take place?
My Lords, does the Minister accept that one of the—I hope unintended—consequences of the Health and Social Care Act has been the disastrous effect on the recruitment of GPs, the number of people going into the GP profession and the number of people leaving the profession or who have said that they will be retiring early? It was described to me recently as an impending car crash.
My Lords, I think we all recognise that general practice is under unprecedented pressure but I would not attribute that to the 2012 Act; I would attribute it to the unprecedented rise in demand from patients. The NHS across the piece is busier than ever before and naturally that has an effect on morale. We are, however, taking steps to promote recruitment into general practice and to reduce the day-to-day burdens that are imposed on general practitioners.
Population: International Migration
My Lords, the Office for National Statistics publishes results from the Annual Population Survey. In the year ending December 2013, an estimated 7.8 million people were born outside the UK, while 4.9 million were non-UK citizens. For the calendar year of 2013, births in the UK to non-UK born mothers accounted for 25% of all live births. That is why we need to reduce immigration.
My Lords, I declare an interest as the chairman of Migration Watch. I thank the Minister for his reply. This is my first intervention on this subject in your Lordships’ House. Does the Minister agree with me that a sensible level of immigration is a natural and valuable part of an open society and economy? Indeed, there are a number of Members of this House whose very presence attests to that. Is the Minister aware that of the increase in the UK population over the past 10 years, at least two-thirds was due to immigration, and that if you include the natural increase in the number of migrants who are already here, that percentage becomes 80%? Will he therefore instruct his officials to clarify the position so that the public finally and fully understand the impact of immigration on our society? Lastly, is he aware that if net migration is allowed to continue at present levels, in the next 10 years we will have to build the equivalent of the city of Birmingham every two years, with the schools, hospitals, et cetera, that will be necessary?
First, I pay tribute to the noble Lord for the work that he has done through Migration Watch, which is, I think, widely regarded as a balanced think tank that makes a positive contribution to the debate on immigration in this country.
The noble Lord, Lord Green, referred to a figure of two-thirds and suggested that that could rise to 80%. The figure that we have to hand on this is 53%. However, we are absolutely at one on needing a firm but fair immigration policy to protect the public services of this country and provide opportunities for those who want to come here to work.
My Lords, the Question is about the children of immigrants. Go outside into the Royal Gallery and you will see a picture of a black man on the ship with Nelson. There were 188 sailors of African origin in the Royal Navy at Trafalgar. I know two or three Indian citizens in the Ealing area who have the Victoria Cross. I wonder what we are saying about their children. It seems to me that their children have made an immensely valuable contribution to the United Kingdom; we ought to be proud of that and say so.
The noble Lord is absolutely right. In fact, I see no difference whatever between his assertion and the questions that the noble Lord, Lord Green, has raised. The best service that we can show to those who come to this country is to make our public services and healthcare available to them and make sure that those who have come here legally and are making a contribution are not disadvantaged by those who have come here illegally and are taking from the state.
My Lords, is it not the case that Her Majesty’s Government, political leaders and civic leaders need to make a case for the positive impact that immigration has had on this country? Of all doctors in the NHS, 26% were foreign-born and 85,000 nurses were born abroad. The care system would collapse without immigrant labour. Does the Minister think that the constant negative narrative of immigration, without the positive, is detrimental to British society—a society that has always been one of tolerance which values and upholds democracy in building better institutions? Do the Government not really need to take the lead on this?
That is true, but that sensible and rational view was drowned out when the lid was taken off immigration and the controls taken away so that under the previous Government we had net migration of 2.5 million. That fed into a change in the narrative away from the fact that most people who come to this country make an absolutely outstanding contribution to it and we are blessed to have them.
My Lords, is the Minister aware that, if we did not have immigrants or the children of immigrants, we would not have buildings, schools, a vibrant food industry or vibrant markets? They contribute and their contribution creates a multiplier effect, which means that they create money that goes around. They should not be underestimated.
I certainly assure the noble Baroness that that contribution is not underestimated and that it is not going to stop. We want people who want to come here to study, to work, to invest and to visit. We want all those people to come. What we are doing is drawing a line to say that we must get much tougher with those who want to come here and abuse our openness.
My Lords, it is the turn of the Labour Benches.
My Lords, will the Minister explain to the House how the Prime Minister got immigration figures so stunningly wrong when looking at this country’s need for overseas students? He promised us that immigration would be controlled at tens of thousands rather than hundreds of thousands. His words in emphasising that were, “No ifs, no buts”. If he can get those figures so stunningly wrong, why should we believe any of the statistics that are coming from the Government on immigration?
It could well be that when the Prime Minister made those remarks the country was in the depths of despair in 2010. Since then, we have had a jobs miracle. We are creating more jobs than the rest of Europe put together. As a result of that, not surprisingly, the place where people want to come to find work is the only place where the jobs are being created. That is in the UK.
That is a more philosophical point—and a good one. It is one reason why we need to work on those other programmes of integration through the education system and through ensuring that people have a sense of what British values are and feel part of this country.
NHS: Cancer Drugs Fund
My Lords, NHS England’s appeal process for the national cancer drugs fund list centres on whether due process is followed with regard to decisions to add or remove drugs from that list. NHS England considers that third parties not involved in the application process, including patients, would not be in a position to make a judgment about whether due process had been followed.
My Lords, the cancer drugs fund was set up as a way of getting round NICE’s refusal to approve the use of a number of drugs by NHS patients. Would the noble Earl concede that NHS England has, essentially, set up a new rationing tool to exclude patients from drugs which had originally been agreed through the cancer drugs fund? Last Thursday, NHS England listed 19 drugs no longer available. Although the noble Earl said that the process is around the procedure used, does he not agree that in the end this impacts directly on patients who can no longer get those 19 drugs? Why should not patients be involved in an appeal process? How does the mantra “No decision about me without me”, which the Government have set for the NHS, fit the lack of patient involvement in these decisions?
The noble Lord is right that NHS England has just gone through a reprioritisation process. There are three important things to observe in that process. NHS England has assured the department that no patient whose treatment is currently being funded through the fund will have funding withdrawn, as long as it is clinically appropriate that they continue to receive that treatment. In addition, no drug will be removed from the fund where it is the only therapy for that condition. Clinicians will still be able to apply for individual patients to receive a drug not on the national list on an exceptional basis. We have seen through experience that many of those applications succeed.
Would the Minister accept that NICE is faced with an extremely difficult problem in continually having to consider the efficacy and affordability of new cancer drugs as they emerge in a National Health Service under financial constraint? Would he also accept that another major problem is emerging in relation to the orphan and ultra-orphan drugs now coming on stream for the treatment of rare diseases, which are equally deserving in many respects? How does he feel that the next Government—however they are constituted—will be able to consider this increasingly serious problem?
My Lords, the noble Lord is right that there is a particular issue around the appraisal of new cancer drugs. That is why NHS England, the Department of Health, cancer charities, NICE and the Ethical Medicines Industry Group, as well as the ABPI, are working together currently as part of a new working party tasked with finding the best way to get new cancer drugs appraised and commissioned for patients. A number of proposals have been looked at to reach an integrated process between NHS England and NICE which results in clear and final decisions on baseline commissioning of chemotherapy drugs.
My Lords, given the good news that the Minister just gave us about the working group looking at the future of some of these complex drugs, and the whole policy about “No decision about me without me”, would it not be sensible to have patients’ advocates, such as Prostate Cancer UK, able both to present and to appeal the case for a drug? It seems bizarre that this is the one area where there is no input of anybody other than the committee making the decision.
I differ slightly from my noble friend on this point. I think that the key determinant for the reprioritisation process has to be clinical input, and that is indeed what happened. It is necessary to have as objective a process as possible when looking at how to reprioritise a cash-limited fund of this kind.
My Lords, if I could come back to the noble Earl, the NICE processes make sure that patients are involved in every stage of the process. I do not understand why there is a difference between the NICE process, which is incredibly thorough and well regarded internationally, and this hurried rationing tool used by NHS England, which is more about its own budgetary problems than an effective solution to these issues.
My Lords, I do not agree about the hurried rationing tool, as the noble Lord puts it. The tool used by NHS England is one that has been tried and tested, and accepted and shared with the pharmaceutical industry. The point here, as I said in my original reply, is that there is due process here. NHS England believes that any patient group or third party not involved intimately with that due process would not be in a position to make a judgment about whether the process had been followed correctly.
Business of the House
Motion on Standing Orders
That Standing Order 46 (No two stages of a Bill to be taken on one day) be dispensed with on Tuesday 17 March to allow the Corporation Tax (Northern Ireland) Bill and the Supply and Appropriation (Anticipation and Adjustments) Bill to be taken through all their remaining stages that day.
My Lords, I beg to move the Motion standing in my name on the Order Paper.
My Lords, this Motion is illustrative of the kind of flexibility and co-operation without which this House could not operate. However, it might sometimes be appropriate to remember that such flexibility and co-operation should work in both directions.
Immigration (Health Charge) Order 2015
Crime and Courts Act 2013 (National Crime Agency and Proceeds of Crime) (Northern Ireland) Order 2015
Restraint Orders (Legal Aid Exception and Relevant Legal Aid Payments) Regulations 2015
Immigration and Nationality (Fees) Order 2015
Motions to Approve
That the draft orders and regulations laid before the House on 29 January and 2 February be approved.
Relevant documents: 22nd Report from the Joint Committee on Statutory Instruments, 27th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 10 March.
Local Audit and Accountability Act 2014 (Special Trustees) Amendment Regulations 2015
Local Authorities (Public Health Functions and Entry to Premises by Local Healthwatch Representatives) and Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) (Amendment) Regulations 2015
Motions to Approve
Broadcasting Act 1996 (Renewal of Local Radio Multiplex Licences) Regulations 2015
Motion to Approve
Statistics and Registration Service Act 2007 (Disclosure of Revenue Information) Regulations 2015
Motion to Approve
38: Clause 60, page 46, line 45, at end insert—
“(14) Any regulations which are made under subsection (1) shall not take effect before 1 April 2017.”
Commons disagreement and amendments in lieu
The Commons disagree to Lords Amendment 38 and propose Amendments 38A and 38B in lieu.
38A: Clause 60, page 45, line 29, at end insert—
“(3) The Secretary of State must, before the end of the period of 3 months beginning with the day on which the review is completed, lay before both Houses of Parliament a report setting out the Secretary of State’s response to the review which must include—
(a) a statement as to whether the Secretary of State proposes to exercise the power to make regulations under section 60(1)(a) or (b), and (b) if the Secretary of State proposes to do so, an outline of the steps that the Secretary of State proposes to take in consequence and when those steps will be taken.”
38B: Clause 60, page 46, line 26, at end insert—
“(10A) Regulations under subsection (1) may not be made so as to come into force before 1 April 2017.”
My Lords, the Government are very clear that the review of the TV licence enforcement regime is a high priority. The overriding aim is to ensure that the system is appropriate, proportionate and fair, and that it represents the best value. This independent review, led by David Perry QC, will identify whether the current enforcement regime is appropriate and proportionate, and will ensure that there is a strong, evidence-based case for any potential changes to the TV licence enforcement regime. Due to the importance of this issue, the decision was taken to commence this review in advance of Royal Assent, while retaining a clause that commits the Government to carry out the review to ensure that this important piece of work is completed in a timely manner. The findings of the review, which will be complete by the end of June 2015, will be laid in both Houses of Parliament and presented to the BBC Trust.
The proposed amendments made in the other place in lieu of Lords Amendment 38 place additional reporting commitments on the Government, but still require that any changes to the licensing regime may not come into force before 1 April 2017. The amendments require the Government of the day to consider the report promptly and properly, setting out their response and the next steps to be taken within three months of the report’s completion. The Secretary of State must report to the House, setting out whether the Government propose to exercise the power to change the sanctions that apply to the failure to have a TV licence, and, if so, detailing the next steps to be taken and to what timetable.
As I have said, the proposed amendments also require that any regulations may not be made so as to come into force before 1 April 2017. We have always maintained that the report’s findings, and potential next steps, should be considered in the context of charter review, and this remains the case. The BBC’s current charter expires on 31 December 2016. The Government will not begin charter review until after the general election, and there is no set process for how the review should be conducted, or when. It will be for the Government of the day to take forward any further actions as they see fit.
We must not pre-empt the recommendations Mr Perry will make, particularly as the public consultation element of this work is currently ongoing. However, it remains the case that any next steps will need to be considered within the scope and timing of the charter review, and it will be for the next Government to ensure that the right enforcement regime for licence fee payers, the courts and indeed the BBC itself is in place. Our amendments ensure that the Government of the day will be committed to consider whatever recommendations David Perry QC wishes to make and to set out their intentions. Any changes that may be introduced must follow a clear timetable to be set out in the Government’s Statement, leading up to when the Secretary of State’s regulation-making power commences in April 2017. I beg to move.
My Lords, following the successful vote in your Lordships’ House a week or two ago, we are very pleased to see that the Government have accepted our important amendment to the Bill by including it in their own Motion A. What we now have before us is a cast-iron guarantee that any proposed changes to the licence fee enforcement regime will not take place until at least 1 April 2017 when the current licence fee settlement expires.
In particular, I would like to thank the noble Lords, Lord Stevenson, Lord Clement-Jones, and Lord Grade, for their invaluable support in this matter in signing the original amendment. This cross-party support demonstrated the broad strength of feeling on this whole issue. Any changes imposed before April 2017 would without doubt have had an impact on the BBC’s revenue. The consequences for the BBC’s funding need to be fully considered. Funding, along with everything else to do with the BBC, must be looked at in the context of the upcoming charter review and licence fee settlement.
We recognise that the David Perry QC review into licence fee enforcement is currently taking place, and I understand that the BBC is engaging with the review. Our amendment, now included in the Government’s Motion, does not affect the review’s recommendations or seek to change the outcome, but focuses on the timing of any implementation and ensures that the recommendation can lead into wider discussions that will affect all licence fee payers.
Having the commitment to the funding agreed at the last licence fee settlement in 2010 firmly confirmed means that the BBC can continue to plan and budget accordingly. As highlighted by the recent report of the National Audit Office, the BBC has made and continues to make significant efficiency savings throughout the organisation. To have reneged on the 2010 agreement would have meant an unpredictable future for many of the services and programmes that audiences value not only throughout this country but around the world. The inclusion of our amendment is a much needed reassurance for the broadcasting industry, and therefore the creative industries as a whole, as the current mixed funding broadcasting ecology is proving incredibly successful, and we hope that it will continue to thrive.
Make no mistake about it, we in the UK are incredibly lucky to have the BBC. The BBC is appreciated the world over as a key source of impartial, accurate and independent news, as a producer of quality original British drama and for investing in an array of services ranging from children’s programmes to increasing levels of innovation online. With this amendment, the current licence fee remains secure and the future of public service broadcasting can be planned and assessed in sufficient time and within the appropriate context.
In conclusion, as well as welcoming the Commons amendment, I thank the noble Lord, Lord Gardiner, and his Bill team, for the helpful way in which they arranged a number of meetings to listen to our concerns and explain the position of the Government at the time.
My Lords, first, I draw attention to my interests in this matter as a former chairman of the BBC Board of Governors, the chairman of Pinewood Studios, an occasional—far too occasional—supplier of services to the BBC, and any other interests in the register.
It has been a very good experience putting this matter to rights, and I offer my congratulations to the noble Baroness, Lady Howe. She and I have not always seen eye to eye on broadcasting matters over many years, but I am delighted to support the remarks she made earlier. I thank the Minister for reaching such a happy resolution on this matter, which means that when the starting gun goes on the charter review debate at the BBC after the election, we can start with a blank sheet of paper and no subsidiary issues that might get in the way. My thanks go to my noble friend and in particular to the noble Baroness, Lady Howe, for running with this matter. I have been very happy to support her, I continue to support her and I am very happy to support the government Motion.
My Lords, although the Minister tried to argue that all sides of the House were in agreement in support for the BBC, I am bound to say that the Government’s position on this issue, repeated at earlier stages of the debate in your Lordships’ House, was precisely the opposite. Had the Government prevailed, that would have had a very destabilising effect on the BBC. The Minister may speak now with the passion of the converted, but we heard him in Committee, we heard him again at Third Reading, and we will remember.
Over time, we have in this country established appropriate procedures for exercising effective but arm’s-length oversight of the BBC involving periodic reviews of the charter and licence and the regular fixing of budgets. The lesson to learn from this episode is that it would be very unwise for any political party to play around with the BBC mid-licence period for short-term political advantage.
We support the independent review being undertaken by David Perry QC. We do not know what the review will recommend on this important but rather narrow question of decriminalising penalties for not paying fines imposed by the courts. But we think it is right to wait for the outcome of the review before any decisions are taken for the simple reason that this would ensure that there will be no significant effect on BBC funding—up or down—before the end of the BBC’s current licence fee settlement, which is due to expire at the end of March 2017.
When the 2010 licence fee settlement was announced, the then Secretary of State said that it would provide,
“a full financial settlement to the end of the year 2016/17, with no new financial requirements or fresh obligations of any kind being placed on the BBC and/or licence fee revenues in this period”.
I am delighted that the Government are now prepared to honour that commitment and we support the amendment.
My Lords, I am most grateful to noble Lords who have spoken in this debate and indeed a number of other noble Lords who I have engaged with on this issue. We have, both in the Chamber and outside, had some very useful and constructive discussions. I am particularly grateful to the noble Baroness, Lady Howe, for her generous remarks welcoming the Government’s amendment. The noble Lord, Lord Stevenson of Balmacara, said that he would remember. I know that if I look back I shall remember this Bill for a number of issues. We have had a fascinating journey, as it were, but on this particular issue we have provided the reassurance of timings. When we had the discussion I said that we were not very far away and I did not think that we were because by the time all the work was going to be done, we would be very close to 1 April. But we have reached that degree of certainty, which I know noble Lords were keen to achieve.
I am particularly pleased that the BBC is engaging in the review. That is what I would have expected from one of our great institutions. From all I hear, Mr Perry is dealing with this matter with the rigour that one would expect of a QC of his experience. That is also extremely important.
I am pleased that this has produced an opportunity for the alliance between my noble friend Lord Grade and the noble Baroness, Lady Howe, to break out in such good measure. But we are now in a position where we are able to consider decriminalisation with the sort of evidence that we needed. There has been a lot of feeling about this, but the review will mean that a thorough piece of work has been undertaken and with these government amendments we will be in a position for the next Government to come to a view and bring this matter forward in a proper fashion. We will have considered the matter properly.
This has been an important feature of your Lordships’ House. It may have been inconvenient to me at the Dispatch Box to lose by three votes, but we have probably found ourselves in a position where there is clarity for the BBC and certainty, which is very important. This has been a valuable exercise.
Armed Forces (Service Complaints and Financial Assistance) Bill [HL]
Motion on Amendments 1 to 27
1: Clause 2, Page 6, line 22, leave out subsection (1) and insert —
“(1) The Service Complaints Ombudsman may, on an application to the Ombudsman by a person within subsection (1A), investigate—
(a) a service complaint, where the Ombudsman is satisfied that the complaint has been finally determined;
(b) an allegation of maladministration in connection with the handling of a service complaint (including an allegation of undue delay), where the Ombudsman is satisfied that the complaint has been finally determined;
(c) an allegation of undue delay in the handling of a service complaint which has not been finally determined;
(d) an allegation of undue delay in the handling of a relevant service matter.”
2: Clause 2, page 6, line 25, at end insert—
“(1A) The following persons are within this subsection—
(a) in a case relating to a service complaint, the complainant;
(b) in a case relating to a matter in respect of which a service complaint has not been made, the person who raised the matter,
and, in relation to a case mentioned in paragraph (b), references in the remainder of this Part to the complainant and to a service complaint are to be read respectively as references to the person and the matter mentioned in that paragraph.”
3: Clause 2, page 6, line 25, at end insert—
“( ) For the purposes of subsection (1)(d)—
(a) “relevant service matter” means a matter of a kind about which a service complaint—
(i) may be made, whether or not at the time of the application to the Ombudsman such a complaint has been made, or
(ii) could have been made (but for provision made by virtue of section 340B(2)(c));
(b) the reference to the handling of a matter is to its handling before the making of a service complaint (if any) about the matter.”
4: Clause 2, page 6, line 27, after “writing”, insert—
“( ) must specify the kind (or kinds) of investigation which the complainant wishes the Ombudsman to carry out (an investigation under a particular paragraph of subsection (1) being a “kind” of investigation for this purpose),”
5: Clause 2, page 6, line 28, leave out “the” and insert “any other”
6: Clause 2, page 6, line 30, leave out from beginning to “a” in line 32 and insert—
“( ) For the purposes of this section, a service complaint has been finally determined where—
7: Clause 2, page 6, line 34, after “complaint”, insert “or the complaint”
8: Clause 2, page 6, line 34, after “allegation”, insert “of maladministration”
9: Clause 2, page 6, line 37, leave out “that”
10: Clause 2, page 6, leave out lines 39 to 42 and insert—
“( ) The purpose of an investigation is—
(a) in the case of an investigation under subsection (1)(a), to decide whether the complaint is well-founded and, if so, to consider what redress (if any) would be appropriate;
(b) in the case of an investigation under subsection (1)(b), (c) or (d), to decide—
(i) whether the allegation is well-founded, and
(ii) if so, whether the maladministration or undue delay to which the allegation relates has or could have resulted in injustice being sustained by the complainant.”
11: Clause 2, page 6, line 42, at end insert—
“(4A) The power to carry out an investigation under subsection (1)(a) or (b) includes power to investigate any maladministration in the handling of the service complaint where it becomes apparent to the Ombudsman during the course of an investigation that any such maladministration may have occurred.”
12: Clause 2, page 6, line 43, after “application” insert “in respect of a service complaint that has been finally determined”
13: Clause 2, page 7, line 10, leave out “investigated an application relating to” and insert “carried out an investigation under subsection (1)(a) or (b) in relation to”
14: Clause 2, page 7, line 16, at end insert “;
“(b) whether to investigate a service complaint, or an allegation, as a whole or only in particular respects.”
15: Clause 2, page 7, line 29, after “investigation” insert “under section 340H(1)(b)”
16: Clause 2, page 8, line 28, at end insert “, and
(b) any recommendations referred to in subsection (2A).”
17: Clause 2, page 8, leave out lines 29 to 32 and insert—
“(2A) Those recommendations are—
(a) on an investigation under section 340H(1)(a) where the Ombudsman finds that the service complaint to which the investigation relates is well-founded, the Ombudsman’s recommendations (if any) on what redress would be appropriate;
(b) on an investigation under section 340H(1)(b), (c) or (d) where the Ombudsman finds that the allegation to which the investigation relates is well-founded, the Ombudsman’s recommendations (if any) as a result of that finding;
(c) where, by virtue of section 340H(4A), the Ombudsman finds maladministration in the handling of a service complaint, the Ombudsman’s recommendations (if any) as a result of that finding.”
18: Clause 2, page 8, line 33, leave out “(2)” and insert “(2A)(b) or (c)”
19: Clause 2, page 8, line 36, after “maladministration” insert “or undue delay to which the finding relates”
20: Clause 2, page 8, line 38, after “maladministration” insert “or undue delay”
21: After Clause 5, insert the following new Clause—
(1) The Secretary of State may by regulations make transitional, transitory or saving provision in connection with the coming into force of sections 1 to 3and the Schedule.
(2) The power under subsection (1) includes power—
(a) to modify the operation of the old complaints provisions in relation to pre-commencement complaints;
(b) to apply any of the new complaints provisions (with or without modifications) in relation to pre-commencement complaints.
(3) Regulations under this section—
(a) may make different provision for different purposes;
(b) may make provision generally or in relation to cases of a description specified in the regulations.
(4) Regulations under this section are to be made by statutory instrument; and an instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
(5) In this section—
“the new complaints provisions” means—
(a) the provisions of, or made under, Part 14A of the Armed Forces Act 2006, and
(b) section 365B of that Act;
“the old complaints provisions” means—
(a) sections 334 to 339 of the Armed Forces Act 2006 and provision made under any of those sections, and
(b) section 366 of that Act;
“pre-commencement complaint” means a complaint under section 334 of the Armed Forces Act 2006 that is made before the coming into force of section 2(2) of this Act.”
22: Clause 6, page 13, line 19, leave out paragraph (b)
23: Clause 6, page 13, line 20, leave out “Sections 4 and 5, this section and section 7” and insert “The remaining provisions of this Act”
24: Clause 7, page 13, line 25, leave out subsection (2)
25: Schedule, page 14, line 2, at end insert—
“Equal Pay Act (Northern Ireland) 1970 (c. 32 (N.I.))
A1 The Equal Pay Act (Northern Ireland) 1970 is amended as follows.
A2 (1) Section 6A (service pay and conditions) is amended as follows.
(2) In subsection (5), for paragraph (b) substitute—
“(b) the complaint has not been withdrawn.”
(3) After subsection (5) insert—
“(5A) Where the service complaint is dealt with by a person or panel appointed by the Defence Council by virtue of section 340C(1)(a) of the Armed Forces Act 2006, it is to be treated for the purposes of subsection (5)(b) as withdrawn if—
(a) the period allowed in accordance with service complaints regulations for bringing an appeal against the person’s or panel’s decision expires, and
(i) the claimant does not apply to the Service Complaints Ombudsman for a review by virtue of section 340D(6) of that Act (review of decision that appeal brought out of time cannot proceed), or
(ii) the claimant does apply for such a review and the Ombudsman decides that an appeal against the person’s or panel’s decision cannot be proceeded with.”
(4) For subsection (6) substitute—
“(6A) Subsection (5) does not prevent the claimant from presenting a complaint to an industrial tribunal concerning a claim in respect of the contravention of a term of service relating to membership of, or rights under—
(a) an occupational pension scheme made under section 3 of the Naval and Marine Pay and Pensions Act 1865,
(b) the Army Pensions Warrant 1977, or
(c) an occupational pension scheme made under section 2 of the Air Force (Constitution) Act 1917.
(6B) In subsection (6A), “occupational pension scheme” has the same meaning as in section 1 of the Pension Schemes (Northern Ireland) Act 1993.”
(5) For subsection (7) substitute—
“(7) The presentation of a complaint to an industrial tribunal in reliance on subsection (5) does not affect the continuation of the procedures set out in service complaints regulations.”
(6) Omit subsection (11).
(7) In subsection (12)—
(a) in the definition of “service complaint”, for “section 334”substitute “section 340A”,
(b) after that definition, insert—
““service complaints regulations” means regulations made under section 340B(1) of that Act.”, and
(c) omit the definition “the service complaint procedures”.
A3 In section 6AB (“arrears date” in proceedings under section 6A(9)), in subsection (5), for “in accordance with regulations made under section 6A(6)” substitute “by virtue of section 6A(6A)”.”
26 Schedule, page 14, line 8, at end insert—
“Sex Discrimination (Northern Ireland) Order 1976 (S.I. 1976/1042 (N.I. 15))
“1A The Sex Discrimination (Northern Ireland) Order 1976 is amended as follows.
1B In Article 80 (orders and regulations), in paragraph (1), omit “(except Article 82(9C))”.
1C (1) Article 82 (application to Crown etc) is amended as follows.
(2) In paragraph (9B), for sub-paragraph (b) substitute—
“(b) the complaint has not been withdrawn.”
(3) After paragraph (9B) insert—
“(9BA) Where the service complaint is dealt with by a person or panel appointed by the Defence Council by virtue of section 340C(1)(a) of the Armed Forces Act 2006, it is to be treated for the purposes of paragraph (9B)(b) as withdrawn if—
(a) the period allowed in accordance with service complaints regulations for bringing an appeal against the person’s or panel’s decision expires, and
(i) the complainant does not apply to the Service Complaints Ombudsman for a review by virtue of section 340D(6) of that Act (review of decision that appeal brought out of time cannot proceed), or
(ii) the complainant does apply for such a review and the Ombudsman decides that an appeal against the person’s or panel’s decision cannot be proceeded with.”
(4) Omit paragraph (9C).
(5) For paragraph (9D) substitute—
“(9D) The presentation of a complaint to an industrial tribunal in reliance on paragraph (9B) does not affect the continuation of the procedures set out in service complaints regulations.”
(6) Omit paragraph (9E).
(7) In paragraph (10)—
(a) in the definition of “service complaint”, for “section 334” substitute “section 340A”,
(b) after that definition, insert—
““service complaints regulations” means regulations made under section 340B(1) of that Act;”, and
(c) omit the definition “the service complaint procedures”.
Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869 (N.I. 6))
1D (1) Article 71 of the Race Relations (Northern Ireland) Order 1997 (application to Crown etc) is amended as follows.
(2) In paragraph (8), for sub-paragraph (b) substitute—
“(b) the complaint has not been withdrawn.”
(3) After paragraph (8) insert—
“(8A) Where the service complaint is dealt with by a person or panel appointed by the Defence Council by virtue of section 340C(1)(a) of the Armed Forces Act 2006, it is to be treated for the purposes of paragraph (8)(b) as withdrawn if—
(a) the period allowed in accordance with service complaints regulations for bringing an appeal against the person’s or panel’s decision expires, and
(i) the complainant does not apply to the Service Complaints Ombudsman for a review by virtue of section 340D(6) of that Act (review of decision that appeal brought out of time cannot proceed), or
(ii) the complainant does apply for such a review and the Ombudsman decides that an appeal against the person’s or panel’s decision cannot be proceeded with.”
(4) Omit paragraph (9).
(5) For paragraph (10) substitute—
“(10) The presentation of a complaint to an industrial tribunal in reliance on paragraph (8) does not affect the continuation of the procedures set out in service complaints regulations.”
(6) Omit paragraph (11).
(7) In paragraph (12)—
(a) in the definition of “service complaint”, for “section 334” substitute “section 340A”,
(b) after that definition, insert—
““service complaints regulations” means regulations made under section 340B(1) of that Act;”, and
(c) omit the definition “the service complaint procedures”.”
27: Schedule, page 15, line 19, at end insert—
10 The following instruments are revoked—
the Race Relations (Complaints to Industrial Tribunals) (Armed Forces) Regulations 1998 (S.R. (N.I.) 1998/104);
the Equal Pay (Complaints to Industrial Tribunals) (Armed Forces) Regulations 1998 (S.R. (N.I.) 1998/105);
the Sex Discrimination (Complaints to Industrial Tribunals) (Armed Forces) Regulations 1998 (S.R. (N.I.) 1998/106).”
My Lords, two separate groups of amendments were made to the Bill in the other place. Commons Amendments 1 to 20 reflect changes to the Bill that were made following the Commons Committee stage. They extend the role of the proposed Service Complaints Ombudsman in a number of important ways and are the most significant of the amendments in this group. Commons Amendments 21 to 27 make some changes to equalities legislation in Northern Ireland that are needed as a consequence of the Bill and make minor changes to the transitional provisions. I therefore intend to speak mainly about Amendments 1 to 20, although I will cover the other amendments at the end.
In Commons Committee on 10 February, it was agreed that the role of the proposed ombudsman should be extended in three ways: first, that the ombudsman should be allowed to look at the substance, or merits, of an individual complaint, not just whether it had been handled correctly by the services; secondly, to require the ombudsman to look for any maladministration that may have occurred in individual cases, not just the specific maladministration alleged by the complainant; and, finally, the Bill was changed in relation to when the ombudsman can look at allegations of undue delay.
The changes that were made to the Bill in Commons Committee were recommended by the House of Commons Defence Committee in its report on the Bill which was published on 23 October last year—that is, after the Bill had left this House. It was clear when the Bill was debated in the Commons that the changes recommended by the Select Committee had cross-party support. The Government therefore accepted in principle the changes to the Bill that were made in Commons Committee and tabled a number of government amendments at Commons Report to make sure that the changes to the ombudsman’s role were clear and worked from a legal and drafting point of view. The government amendments also filled an important gap in the ombudsman’s powers to make recommendations in individual cases that had been left by the original amendments. The government amendments were agreed at Commons Report and are therefore the ones we are looking at today.
Although the amendments extend the scope of the ombudsman’s role, they follow the framework which the Bill originally set out. It is important to emphasise a point that has sometimes been lost in our debates—the ombudsman will normally become involved in individual complaints only once the consideration of it by the services has finished. That is an important point. The ombudsman is the backstop, the place of last resort on individual complaints that have been through the internal system. If complaints are successfully dealt with by the services, there will be no need for the complainant to go to the ombudsman.
It is important to make that point because of the third aspect of change agreed in the other place. This allowed the ombudsman to investigate allegations of undue delay in three different respects: as part of a maladministration investigation; where delay is alleged in relation to a complaint that is being considered by the services; and, finally, where there is an allegation of undue delay before a complaint has even been made.
It is in everyone’s interests that we have a complaints process where roles and powers are clear so that there is no confusion. It is also important that the wishes of the individual remain at the heart of the process, given that this is an individual grievance procedure, and equally that the rights of anyone alleged to have committed a wrong against another person are also protected. It remains the case that the services will, in every case, still be left to decide how to respond to any findings and recommendations made by the ombudsman, even in relation to the extended scope that the ombudsman will now have.
The Chief of the Defence Staff has confirmed that the amendments do not substantially affect the primacy of the chain of command because the Service Complaints Ombudsman can investigate the substance of a complaint only after the chain of command has done so, or where the chain of command decides not to investigate and the complainant still wishes to pursue the matter. He has made it clear that a well run organisation should have nothing to fear from the system that would be put in place if these amendments are made.
The government amendments that were agreed in the other place also made the necessary additional changes to the rest of the Bill’s provisions, so that there can be no doubt as to the precise scope of the ombudsman’s powers. Commons Amendments 1, 3 and 6 set out in clear terms that the ombudsman can investigate, first, a service complaint, when that complaint has completed the internal system. That is what makes clear that the ombudsman can look into the merits of a complaint. Secondly, the ombudsman can investigate an allegation that there has been mishandling of a service complaint, including undue delay, when that complaint has completed the internal system. This is what deals with maladministration. Thirdly, the ombudsman can investigate allegations that a service complaint has been unduly delayed, before that complaint has completed the internal system, or alternatively that there was undue delay before a service complaint is made.
For everyone concerned to have confidence in the findings made by the ombudsman, particularly where she will now be able to investigate the substance of a complaint, it will be important for her staff to have the right skills and knowledge for the job. This is something that we must now work through carefully with the Service Complaints Commissioner as part of the ongoing work to prepare for implementation of the new system.
As it is now possible to make an application to the ombudsman alleging undue delay when a complaint has not been concluded in the internal system—or, indeed, where a complaint has not even been made—it is important that the Bill sets out for the avoidance of doubt what is meant by the internal process having been completed. This is why Commons Amendment 1 introduces the new wording of “finally determined” to differentiate investigations into the service complaint or alleged maladministration which can only happen after the conclusion of the internal complaints system. This term is defined by virtue of the change to the Bill in Commons Amendment 6. I want to be clear that the phrase “finally determined” does not in any way preclude the ombudsman from looking into the merits or maladministration of a complaint. It is simply there to make it clear that she can do so only once consideration of it has been completed in the internal system by the services, and where the applicant has asked the ombudsman to investigate in accordance with the requirements of the Bill.
It remains important for the ombudsman to have a reasonably clear idea of what the applicant wants them to look into, and for investigations to remain focused and proportionate. Commons Amendment 4 would require the applicant to specify which kind or kinds of investigation the complainant wants the ombudsman to carry out. This is not an onerous obligation for the complainant but will help to focus the efforts of the ombudsman on what is most important to the applicant.
Connected with that is Commons Amendment 14, which would enable the ombudsman, as part of her discretion, to decide whether to investigate the whole service complaint or allegation, or just part of it. It will be open to the ombudsman to decide not to reopen particular aspects of a service complaint or rerun parts of the process if she is satisfied that these were adequately dealt with in the internal process. It is clearly in everyone’s interests that the new ombudsman stage does not add to the delays that these reforms are, at least in part, seeking to address.
Commons Amendment 11 sets out the changes providing for the ombudsman’s power to investigate any maladministration that she identifies in the course of an investigation into alleged maladministration or one looking at the service complaint. We want the ombudsman to be free to report on any other aspect of mishandling that she may come across, and have amended the Bill accordingly to make this clear throughout the relevant provisions. These changes do not require the ombudsman to search for maladministration in every case. That was an essential clarification made in the government amendments agreed to on Report in the Commons. There is also no power for the ombudsman to investigate the service complaint if the application does not ask for the ombudsman to do this.
It is important to stress that this change also does not give the ombudsman an unrestricted power to look into matters that are not related to the complaint being investigated. The ombudsman will not be able to investigate operational matters or to look more generally at service ethos and culture. There are other, more appropriate, forums for any such investigations. Equally, it will remain for the services themselves to grant any appropriate redress where the ombudsman finds that a complaint is well founded. It is equally important for everyone that the powers of the ombudsman are clear regarding what she can do having completed an investigation. Her ability to produce a report with findings and recommendations is fundamental to the view that many will rightly have about whether this new role really does have teeth.
The government amendments will also fill a gap here that was left following the amendments made in Committee in the other place. Amendments 16 to 20 make it clear that the ombudsman must, after carrying out an investigation, prepare a report setting out their findings and recommendations. On an investigation into the service complaint, the ombudsman will need to make findings on whether it was well founded and, if so, what recommendations, if any, to make on appropriate redress. We expect that the ombudsman will share a draft of her recommendations with the MoD and the services before making these final. This is covered in the current draft of the ombudsman regulations. The Defence Council will also retain responsibility for how to respond to any recommendations. The amendments also clarify that the ombudsman must set out any recommendations as a result of a finding of maladministration or undue delay.
Amendments 21 to 24 are of a minor and technical nature, so I do not intend to speak to them for long. The Bill originally provided in Clause 6(2)(b) for commencement regulations to make transitional provisions. Those regulations would have been subject to no parliamentary procedure. During the passage of the Bill the department has progressed its preparations for the transitional provisions. It has become clear that some of the necessary regulations might go beyond the scope of this power. This is particularly the case where it may be desirable to transfer some, or perhaps many, existing service complaints on the commencement day to the new system with all the advantages that will bring.
Amendments 21 to 23 would provide the Secretary of State with a free-standing power under a new clause in the Bill to make the necessary transitional provisions for the new complaints provisions to come into force. The transitional regulations will be subject to the negative resolution procedure. The new clause will come into force on Royal Assent. The existing power in the old Clause 6 will be removed by these amendments. Amendment 24 makes a minor and purely procedural amendment to remove a provision made in this House to recognise and maintain the privileges in the other place on financial matters.
We have identified a small amount of other legislation that needs to be amended as a result of this Bill. This is all equalities legislation relating to Northern Ireland and is covered by Commons Amendments 25 to 27. Each of the instruments that needs amending refers to the existing service complaints system and therefore needs to be updated as a result of the Bill. The amendments are similar to those being made in the Bill to Section 121 of the Equality Act 2010. These amendments will remove uncertainty by clarifying how the Bill interacts with other legislation. None of the amendments raises devolution issues.
The amendments agreed in the Commons are necessary to ensure that the provisions in the Bill are clear. They also ensure that the drafting is coherent and complete while giving full effect to the amendments agreed to in the other place, which had cross-party support and that of the Defence Committee. The Commons amendments give us a Bill and a process that will help the services understand when they can approach the ombudsman, on what matters and at what stage of the process. They will give the ombudsman the teeth needed to hold the services and the MoD to account. I beg to move.
My Lords, Amendment 1 makes a very significant change to this Bill. In essence, it provides for a complainant who at the end of the full military process of investigation and hearing is dissatisfied with the judgment that has been reached to apply to the ombudsman for, essentially, a totally new hearing, not a review of whether the complaint was handled properly and appropriately, and not of whether the judgment reached was reasonable within the range of reasonable decisions that could have been reached, but an entirely new judgment on the merits of the case.
It is, of course, perfectly possible for two or more people to reach, in varying degrees, different views on the merits of a case on the same set of facts as presented. Perhaps the most obvious example of this is a dissenting judgment in the Supreme Court. This Bill, as amended, is now essentially saying that the judgment and view of the ombudsman is of more value and is more reliable than those of anyone in the military chain of command or of the Defence Council. Noble Lords will be able to judge for themselves whether they think that is a sensible thing to do. All I will say is that having been in the position of having to review many such hearings and judgments at Air Force Board level, I certainly, to some extent or other, found in favour of the complainant on quite a number of occasions. I could not give your Lordships an exact percentage at this remove, but my sense is that it was quite a significant percentage. The sense that someone in the chain of command is automatically going to be prejudiced and unable to give the complainant a fair hearing is entirely unfounded.
Nevertheless, this Bill provides for a process that is not simply judicial review but is essentially a rehearing on the facts. Given the number of complaints that go through in any given year, and that one of the defects that this Bill was intended to address was the delay in the hearing of such complaints because of their volume, it seems inevitable that the number of complaints on merit that are to be made in future to the ombudsman following the service process will be fairly large. This means that the ombudsman will not in every instance be able to hear that case personally. Some of her deputies, some of the people in her new office, will have to do that on her behalf. Although she will, of course, be called upon to sign off the outcome in every case, it will be people from the ombudsman’s office rather than the ombudsman herself who will hear some of these retrials, if I can put it that way. Therefore, it seems to me that if we are to agree to such an amendment, the very least we must insist on is that within the regulations that will give effect to this Bill in due course, the qualifications and training that will be necessary for anybody from the ombudsman’s office to sit in judgment on such de novo hearings are set out in no uncertain terms. The Minister alluded to this in his speech, and I welcome his words, but when he sums up I ask him to reassure your Lordships that he will come back to us with a form of words which, at the very least, will satisfy us that this unfortunate amendment will do as little harm as possible.
My Lords, first, I take the opportunity to thank the Minister, my noble friend Lady Jolly and other noble Lords for their input into this Bill. I think it is very important. I take issue with the noble and gallant Lord, Lord Stirrup, because, when my colleagues in the other place asked me if I had any problems during earlier stages of the passage of this Bill in this House, with the Bill having started in your Lordships’ House before moving to the other place, I said that one thing that I spoke about, on which they spoke in the other place, was that the ombudsman would be able to look only at the process rather than the detail. I believed at that time, during the earlier stages of the Bill in this House, that the ombudsman should, in certain circumstances, have the ability to do so—but, as my noble friend said, this is after it has been through all the chains of command, and it is not meant to usurp any of those points.
I am very pleased with the first amendment which, as my noble friend said, is to do with the substance and merit of the complaint, not just the process. That gives some teeth to the new ombudsman, although I hope that my noble friend will address the point made by the noble and gallant Lord as to the number of cases that might build up. I am very pleased with the earlier amendments to the Bill—the later ones are purely of a technical nature.
A further point that I hope that the Minister will deal with is the number of cases in the pipeline. My belief is that there are about 1,000 cases waiting to be heard, which gives some credit and support to what the noble and gallant Lord said. Those cases will be heard under the old process, as I understand it, rather than under the new one; in other words, the ombudsman would be able to look only at the process, not at the substance. That is all very well, but when the complaint is not allowed under the old process, does the complainant have the ability to ask for it to come back under the new Act, as it will be, allowing them to look at the detail? In discussions with the Bill team, I was told that that was not the case and that once it had been allowed to go forward under the old process they would not be able to look at the substance. What would stop the complainant making a new, slightly different, complaint under the new process, thus taking advantage of the ombudsman and her staff to look into the detail? I hope that my noble friend will be able to deal with that when he replies.
The unanswered questions in the Bill are more to do with the cases in the pipeline and any transitional arrangements that need to be made rather than the very welcome amendments that have come from the other place and which I support.
My Lords, I rise to speak with some diffidence, it being nearly 60 years since I completed my own national service—and I now speak as a superannuated judge. But this new power in the first amendment strikes me as a very remarkable and extreme power. It confers on the complainant an unlimited appeal right and on the ombudsman an unlimited power to hear an open appeal on the substance and merits of the complaint on a de novo basis. By definition, by this stage, the aggrieved complainant will have failed to establish and failed to persuade the various levels in the chain of command of the merits of his complaint on a number of occasions.
This new provision is strikingly different from the well known formula that appears in the TPIM Act 2011, which I take as an illustration, where review and appeal rights are thus constrained:
“the court must apply the principles applicable on an application for judicial review”.
I repeat: here there is an unlimited appeal. When promoting the Bill at Third Reading last October, the Government originally objected to any such provision on the basis that it undermined the military chain of command. It is true, as the Minister said today, that at the end of the process the ombudsman’s findings—and, if they are favourable to the complainant, recommended redress—go to the Defence Council. Frankly, the Defence Council will effectively be obliged to give effect to them, unless it chooses, as would be its right, to judicially review the ombudsman’s conclusions. If the Defence Council does not do that and does not give effect to them, it is highly likely that the complainant will judicially review the Defence Council.
For my part, I can do no more at this stage than offer such support as I can to the urging on the Government from the noble and gallant Lord, Lord Stirrup, to make sure that those who will exercise this radical new power in the ombudsman and entertain a service complaint not against the background of their own service experience, and despite its failure before the various levels of the military, will at the very least be trained so that they fully understand the exigencies of service life.
My Lords, I support the observations made by the noble and gallant Lord, Lord Stirrup. It is somewhat disappointing that there is this residual difficulty in the main thrust of the Bill, which one very much supports—it is perhaps a regret that we have to have an ombudsman at all, but that is where we are.
I simply make two points. The first is in support of what the noble and gallant Lord, Lord Stirrup, said: if this goes through, those who take part in this process must be properly trained so that they understand the circumstances and context in which the cases come. Secondly, I simply observe that the cause of a large number of the cases in the pipeline is excessive delay, often occasioned by complaints not being investigated at a low enough level in the chain of command process. In reading noble Lords’ comments in this short debate, I hope that every effort will continue to be made to streamline the process such that complaints can be dealt with speedily at a low level, so that we do not get the backlog of the size that we currently have. This will lead to much greater efficiency in the system, which will bring satisfaction and resolution through speedy agreement.
I congratulate my noble friend on the amendments that have been proposed. As a former Legal Services Ombudsman in England and Wales, I think it is right that one looks at the substance and merits of the complaint. Without that, you deal only with issues of delay. To take the point that the noble Lord made, any decent, transparent, effective and efficient ombudsman can take into consideration different complaints and the time that they will take. If you allow a draft report to the defence side or to the service side, will the complainant also get the option to comment on the draft report? After all, the role of an ombudsman is to be independent, transparent and fair in every way.
My Lords, I speak as chairman of the Association of Military Court Advocates—I declare an interest; I am not expressing the view of that association.
I very much welcome the extension of the role of the ombudsman to considering the merits of a particular issue. I approach it from the point of view of the complainant and the complainant’s family, and the importance of the confidence of the public in the system of justice in the Armed Forces. From the point of view of recruitment and retention of service personnel, it is very necessary that those who undertake the burdens of service life should feel that they have a fair and just system of complaint. As I expressed when the Bill went through this House, the weakness of simply looking at process was that a decision on process would not be satisfactory to the complainant and their family. They would want an ombudsman to act like an ombudsman and to look at the merits of a particular case. I am grateful that the Government have moved in that direction.
My Lords, following the Government’s defeats on this Bill in the other place, their initial reaction was to consider how best to reverse them when the Commons amendments were considered in your Lordships’ House. I shared that reaction. Not to reverse the defeats would be a further withdrawal from the position adopted by the Government and reaffirmed in correspondence that I had with the Minister of State, Anna Soubry, following the Bill’s consideration in this House. She wrote to me:
“The bill as it currently stands”—
that was before the defeats in the Commons—
“gets the balance right between having a strong and independent Ombudsman and preserving the PRIMACY of the chain of command. It is that balance that I wish to maintain”.
We now have this run of government amendments reflecting their new position. No doubt this change of heart within government has been brought about in part by the imminence of Dissolution, in part by the weakness of their position in this House on this matter, and in part by the acceptance by the Chiefs of Staff, albeit on the basis of shotgun pressure upon them, that the Bill as amended is the least bad of the possibilities likely to be available. However, is not that latter acceptance itself due in part to the character of Nicola Williams, the nominee for the new post of ombudsman, and the position that she has adopted of recognising the ethos and value of the chain of command? Whether she accepts, as Anna Soubry stated, the primacy of preserving the chain of command remains to be judged.
However, in due time, will her replacement be as savvy? We are legislating about principles, not personalities. I am also concerned to learn that the ombudsman’s office may be 20-plus strong, not all of them lawyers, as will be the ombudsman, and so probably less qualified to undertake systemic examinations of complaints handlings, let alone of actual complaint topics.
Moreover, there seems to be no presumption of improvement in the working of the chain of command over time in dealing with complaints—in fact, the opposite. The default presumption is that complaints will continue to be subject to systemic and irreversible maladministration, as bad as or even worse than it is today. Once again, it is the unspoken but damaging inference that civil authority does not believe that the military chain of command is ever really competent or trustworthy, or is ever really worthy of being upheld or supported. Such an attitude would concern me very greatly.
The Human Rights Act 1998 flew in the face of and upturned long-standing Armed Forces legislation. It removed the majority of the Armed Forces’ legal processes from the chain of command and was damaging to the sense of trust. For example, the convening and review of courts martial are no longer exercised by the chain of command.
The Human Rights Act and other, more recent, statutes affecting the position of the chain of command have served to chip away at and undermine the essential and irreplaceable value of trust and support up and down the chain of command. Although each individual change may seem not to be too damaging or serious, it is the cumulative impact of a number of statutes on the values of the chain of command that worries me and that must be considered. Such values are vital to the use of armed forces in peace or war and to success in operations.
Will the Minister give an undertaking that, as and when there are significant improvements in dealing with complaints by the chain of command, the size and scope of the ombudsman’s team will be reviewed? Otherwise, and given those improvements, there will surely be a temptation to avoid idle hands and deploy the efforts of the 20-plus in systemic work which might, on balance, prove to be inimical to and derogatory of the standing and desired primacy of the chain of command. I look to the Minister for that assurance.
My Lords, I thank the Minister for his typically calm and measured explanation of the amendments made to the Bill in the other place, which we support and which I understood—I hope not wrongly—had the support of senior serving military personnel. The amendments were among those called for by the Common Defence Select Committee in its report published last year, and were opposed by the Government in Committee in the Commons in the same way that proposed changes to the Bill, some along similar lines, were rejected by the Government during debates in this House.
The Government were clearly unhappy about their defeat in the Commons when one part of the coalition broke ranks and voted with the Opposition. Fortunately, good sense prevailed and the Government themselves put forward amendments on Report in the Commons to make sure that the changes adopted in Committee worked correctly from a drafting point of view.
The changes made in Committee extended the role of the ombudsman in three ways. The first, as the Minister said, was that the ombudsman should be allowed to look at the substance or merits of an individual complaint and not just at whether there had been maladministration in the way the complaint had been handled by the services. The second was that the ombudsman should not just look at any maladministration alleged by the complainant but should be able to consider any other maladministration that comes to light. The third change agreed at Commons Committee stage allows the ombudsman to investigate allegations of undue delay in the laid-down circumstances to which the Minister referred in his introductory comments.
Clearly, one effect of the Commons amendments is to increase, potentially, the workload of the ombudsman. The Minister in the Commons said that the effect of the amendments carried in Committee, against the Government’s wishes, would be to extend the role and remit of the ombudsman. In opposing in Committee the extension of the power of the ombudsman to look at any maladministration that came to light—not just maladministration alleged by a complainant—the Minister in the Commons said that it was undesirable and might add considerably to the time it took each case to be concluded.
Now that the Government have accepted the outcome of the votes in the Commons Committee, could the Minister say, in the light of the comments from his ministerial colleague in the Commons to which I have just referred, what further additional resources will be provided to the ombudsman in the light of the extension of the role and remit of the position? How much additional money will be provided over and above that originally required before the role and remit was extended by the Commons amendments, and how many additional staff do the Government now consider the ombudsman will require when the position of ombudsman finally comes into being? One would assume that, without additional resources, there would be a danger that effective delivery of the extended remit provided for by the Commons amendments we are now considering would be put in jeopardy.
I will raise a few specific points about some of the Commons amendments. Commons Amendments 1 and 2 refer to “a person”, “the complainant” and “the person who raised the matter”—that is, always in the singular. Does that mean that the ombudsman cannot consider a complaint about the same matter made by, say, half a dozen people? In that situation, will the ombudsman have to treat them as six individual separate complaints even though they relate to the same issue?
Commons Amendment 21 refers to the transitional provisions,
“in connection with the coming into force of sections 1 to 3 and the Schedule”,
and gives the Secretary of State powers,
“to modify the operation of the old complaints provisions in relation to pre-commencement complaints”,
“to apply any of the new complaints provisions … in relation to pre-commencement complaints”.
Can the Minister say a little bit more about what the Government envisage in respect of the transition provisions? The noble Lord, Lord Palmer of Childs Hill, also referred to this issue. Will an individual who has a complaint being considered by the Service Complaints Commissioner at the time that the new position of Service Complaints Ombudsman, with the enhanced remit, comes into being, be able, if they so wish, to have that complaint considered under the enhanced remit of looking at the complaint itself rather than just the issue of maladministration under which it would currently be considered? If not, will the individual be able to submit the complaint again to the ombudsman asking for the substance of the complaint to be considered?
The Minister referred to what the ombudsman could and could not investigate. Commons Amendment 1 states:
“The Service Complaints Ombudsman may … investigate … a service complaint”,
among other issues. Who defines how much information, what kind of information, what kind of inquiries and how extensive those inquiries need to be in order to “investigate” a service complaint in order to determine findings and make recommendations to the Defence Council? Is that a decision for the ombudsman alone? Is it for the ombudsman alone to decide whether, in order for it to be undertaken properly, the investigation needs also to investigate factors and events surrounding and prior to the issue giving rise to the complaint? Is it for the ombudsman alone to decide how wide-ranging or narrow the recommendations to the Defence Council should be? When is it expected that the new position of Service Complaints Ombudsman and the associated new system of enhanced remit will come into effect? In addition, why are the Commons amendments relating to Northern Ireland, to which the Minister referred, being brought forward at this late stage in the passage of the Bill?
We fully support the Bill and we welcome the Commons amendments. We believe that the new arrangements will lead to a better, more widely accepted and more effective means of addressing situations that inevitably will occasionally arise, where things have gone wrong or have been felt by Armed Forces personnel to have gone wrong, and have not been resolved to the satisfaction of those concerned. We wish the new Service Complaints Commissioner well in her current role and we also wish her well when the commissioner becomes an ombudsman, with an enhanced remit and enhanced powers. We also hope that the concerns that have been expressed this afternoon will, as we believe, prove unfounded.
My Lords, I thank noble and noble and gallant Lords for their general support for these amendments. I will do my best to answer their questions.
The noble and gallant Lord, Lord Stirrup, pointed out, quite rightly, that there would be a larger number of complaints. Obviously, people in the ombudsman’s office will have to take on a lot of that workload so it is really important that the staff she takes on have the right skills and qualifications for the job and are properly trained. We are well aware of that. This is something that we must work through carefully with the Service Complaints Commissioner as part of the ongoing work to prepare for the implementation of the new system.
I can say to the noble and gallant Lord and other noble Lords who are interested in this issue that my noble friend Lady Jolly and I met Nicola Williams last week and we were very impressed by her. I have arranged for her to meet any interested Peers at 11.30 am on Wednesday 25 March in Room 10A. My office will write to all those noble Lords who we think might be interested. However, I can tell noble and noble and gallant Lords that she is well aware that those people working in her office must be properly selected and must have the adequate training. We discussed that at great length with her. She has considerable experience as an ombudsman and I am sure that she will carry on the good work of the previous commissioner, Dr Susan Atkins. She agrees that it is important that she and those working in her office have a thorough understanding of how the services operate. She assured me that she will be making frequent visits to all three services and will encourage those who work in her office to do the same thing so that they understand the ethos of the services. She understood that that was a really important point. I can give the noble and gallant Lord the assurance that we will come back to the House before the regulations are considered.
I thank my noble friend Lord Palmer for his support. He asked how many cases are in the pipeline: I understand that it is about 1,000. My noble friend asked what would stop a complainant making a slightly different complaint. Recent complaints on the same matter will, as now, not be permitted.
In a speech that I very much look forward to reading in Hansard, the noble and learned Lord, Lord Brown, was concerned that this would undermine the chain of command. We have been clear from the start that the authority of the chain of command should not be compromised by the creation of an ombudsman. Maintaining the integrity of the chain of command is essential for our ability to deploy battle-winning forces. We have achieved the right balance with these reforms and the Chief of the Defence Staff has confirmed that the amendments made in the Commons do not substantially affect the primacy of the chain of command because the Service Complaints Ombudsman can investigate only the substance of a complaint after the chain of command has done so or where the chain of command decides not to investigate and the complainant still wishes to pursue the matter. The noble and learned Lord also mentioned the selection and training of those working in the ombudsman’s office. This is an issue that we take very seriously.
I thank the noble Lord, Lord Dannatt, for his support and my noble friend Lady Manzoor, who I understand was Legal Services Ombudsman for England and Wales and therefore knows a lot about this issue. I also thank my noble friend Lord Thomas of Gresford.
The noble and gallant Lord, Lord Craig, asked whether we will review the size of the team if the services get their act together. We will obviously keep the numbers under review and we hope that, if things go well, the number of people working in the office will be reduced. The number must be proportionate, but it is important to point out that the ombudsman’s office can investigate only matters arising from this legislation; they cannot go off and consider other things.
I thank the noble Lord, Lord Rosser, for the Opposition’s support for the Bill. The noble Lord asked me several questions. He pointed out that the commissioner’s role will be expanded and asked what additional resources the office would get. We envisage the extra cost to be around £500,000 and anticipate that her staff numbers will rise from nine up to 20.
The noble Lord asked what would happen if six different people were to make a complaint. This would be up to the commissioner to decide. The noble Lord also asked the same question as my noble friend Lord Palmer: what happens if a complaint is already in the pipeline? The complainant will not be able to make a complaint about the same issue twice under the new system.
The noble Lord asked what “investigate” means in Amendment 1 and who would decide. It would be for the commissioner to determine, but the investigation could relate only to a service complaint or an allegation of maladministration.
The noble Lord also asked when the new system would come into effect. Before the new system can be introduced, the services and the commissioner’s office need to convert their current structure and processes to the new ways of working. We also need to put the necessary regulations in place and issue guidance to personnel on how the new process will work. Much initial work has already been done, but it is important that we get it right. We therefore expect the new system to be introduced by the end of this year. Nicola Williams will be appointed as the Services Complaints Ombudsman by Her Majesty once the Bill is brought into force.
The noble Lord asked why the Northern Ireland amendment is so late. It is because we did not have the approval of the Northern Ireland Office to do it earlier.
The noble Lord, Lord Dannatt, asked me about delays to complaints. I can provide him with an assurance that we will continue to bear down on delays in handling complaints. All three services are working hard to clear the backlog of complaints and to make sure they are dealt with as quickly as possible.
My noble friend Lady Manzoor asked whether the complainant would have the opportunity to comment on draft reports. That will be a matter for the ombudsman. We anticipate that happening at least in cases where the chain of command is asked to comment.
Perhaps I may ask the Minister to clarify the response that he gave to me on additional finances and staffing. Is the additional £500,000 as a result of the extension of the remit that is covered in Commons amendments, or was it the amount that was going to be needed anyway in additional money to cover the changes in the Bill as it was originally worded? Was the increase in staffing from nine to 20 also to cover the changes in the Bill as it was originally worded? Surely if the remit has now been extended in the way that it has under the Commons amendment, does that not require additional resources and additional staffing? I was not entirely clear from the answer that the Minister gave to me whether that was what the £500,000 and the increase in staff from nine to 20 covered.
Does that mean that, if that was what was deemed necessary under the original Bill, no further money is coming forward to take account of the enhanced remit—and it is an enhanced remit—under the Commons amendment and there is no provision for any additional staff?
Standardised Packaging of Tobacco Products Regulations 2015
Motion to Approve
My Lords, these regulations propose to introduce standardised packaging for tobacco products, which I believe to be an important public health measure. I pay tribute to all the noble Lords who campaigned for the introduction of these regulations—in particular the noble Baroness, Lady Finlay, the noble Lord, Lord Faulkner, and my noble friends Lady Tyler and Lord McColl, who all pressed for it during the passage of the Children and Families Bill in 2014.
Tobacco use remains one of our most significant public health challenges. Smoking places an enormous strain on the NHS, and is a significant driver of health inequalities. More people die from lung cancer in the UK than any other form of cancer and almost nine in 10 of all lung cancers are caused by smoking. For this reason, the Government have prioritised action to reduce smoking rates, which is why we published the tobacco control plan for England in early 2011.
We have looked carefully at the evidence and it shows that introducing standardised packaging is highly likely to bring important public health benefits, primarily by reducing the appeal and attractiveness of tobacco packs, especially to children and young people, and improving the salience of health warnings on packets. Packaging and branding are promotional tools used to attract consumers. Since the ban on advertising tobacco products in the UK, packaging has become a key avenue for the promotion of tobacco, and it is notable that one tobacco company referred to tobacco packaging as its “mobile billboard”. Opponents of standardised packaging claim that there is no evidence that it will bring about a reduction in smoking prevalence or the resulting health benefits. In fact, Sir Cyril Chantler, who reviewed the evidence, concludes that,
“it points in a single direction”,
and that there is no,
“convincing evidence pointing the other way”.
Let me first outline what the regulations propose, before discussing the wider issues. The Children and Families Act 2014 gives the Secretary of State powers to regulate the retail packaging of tobacco products. In November 2013, Health Ministers commissioned Sir Cyril Chantler, the eminent paediatrician and medical researcher, to undertake an independent review into whether standardised packaging would be likely to have an effect on public health, in particular in relation to children. Sir Cyril’s thorough and well considered report, published in April 2014, concluded that standardised packaging would be highly likely to have a positive impact on public health.
On the publication of the review, my honourable friend Jane Ellison, Public Health Minister, announced that the Government were minded to proceed with standardised packaging, subject to a final consultation. There has been extensive engagement and consultation with the public and stakeholders on this proposal, including two public consultations—one in 2012 and a further consultation in 2014. The Department of Health has carefully considered all responses to both these public consultations and the wider points that they raise.
These regulations propose to standardise the retail packaging of all cigarettes and hand-rolling tobacco. Cigars and pipe tobacco are not currently covered by the regulations. The regulations specify mandatory colours for those parts of the packaging that are not taken up by health warnings or duty marks. The outside of packs will have to be a uniform dull brown and the insides plain white. The brand name of the product may appear but must be in grey with a fixed size and typeface. This means, in effect, that no branding will be allowed except for the brand name. The regulations also specify that individual cigarettes must be plain white with a cork effect or white tip, but will allow the brand name to be printed in small text. An illustration of what a standardised cigarette packet could look like has been published, which noble Lords may wish to see.
The draft regulations will also implement certain packaging-related requirements from the European tobacco products directive that was agreed last year, such as the shape, material and minimum content of packs. The remainder of the tobacco products directive will then be implemented through separate regulations, which the Department of Health will be consulting on shortly. Standardised packaging would be a UK-wide measure. Public health is a devolved matter but Scotland, Wales and Northern Ireland have provided the necessary consent for the regulations to extend to their Administrations.
Looking wider than the UK, there is international momentum towards introducing standardised packaging. Although the only country to have implemented standardised packaging is Australia, many other countries are taking positive steps towards legislating, including Ireland, France, Norway, New Zealand and Turkey. The Australian Government were clear when introducing the measure that they expected the benefits of standardised packaging to be “generational” and come in the longer term. The Cancer Council Victoria has recently reviewed the available Australian evidence and data so far, and concluded:
“Prevalence of smoking in Australia fell dramatically between 2010 and 2013”,
“plain packaging is likely to continue to contribute along with Australia’s other tobacco control policies to further reducing the prevalence of smoking in Australia”.
There have been some suggestions that standardised packaging may lead to growth in the illicit tobacco market. I want to reassure noble Lords that this issue has been considered carefully across government. HMRC leads on reducing the size of the illicit tobacco market and has undertaken a detailed assessment of the potential impact of standardised packaging on the illicit trade of tobacco, which was published and put into the Library in February. The HMRC report concluded:
“We have seen no evidence to suggest the introduction of standardised packaging will have a significant impact on the overall size of the illicit market”.
Some also have concerns that this will be the start of a slippery slope towards standardised packaging for other products, such as unhealthy foods or alcohol. I want to be absolutely clear that the Government have no intention to extend standardised packaging to any product other than tobacco. Tobacco has been treated uniquely in regulatory terms before, as it is a uniquely harmful consumer good. All smoking is addictive and harmful to health, and half of all regular smokers are eventually killed by smoking-related illness. This is not true for other consumer products.
I understand that some noble Lords will, rightly, have concerns with regard to the potential legal implications of introducing standardised packaging. Let me be clear that thorough consideration has been given to such concerns. We know that the tobacco industry is likely to challenge this measure should the regulations be made, as it has with other tobacco control legislation. Threats of legal action have already been made by tobacco companies. However, we believe that these regulations are a proportionate and justified response to a major public health challenge, and will be defensible in the courts. We cannot let the vested interests of the tobacco industry control the public health agenda, and we will defend public health legislation from legal action.
Smoking remains a critical public health concern. Smoking is an addiction, largely taken up in childhood and adolescence. The choice to smoke is not like other choices and is often not made as an adult decision. Research included in the Chantler review shows that around 600 children between the ages of 11 and 15 start smoking every day in the UK. It is crucial that we do all we can to reduce that number. We also need to do all that we can to assist those already addicted to quit; and I believe that standardised packaging will contribute to doing so. The introduction of standardised packaging is likely to deliver important public health benefits and, as part of a comprehensive tobacco control strategy, will bring us a step closer to a smoke-free generation. I beg to move.
Amendment to the Motion
As an amendment to the above motion, to leave out from “that” to the end and insert “this House declines to approve the draft Order laid before the House on 23 February as it does not reflect the impact evidence from the Australian introduction of standardised packaging; makes no allowance for the continuance of the security system “Codentify” currently in operation with HM Revenue and Customs to differentiate between legal and illegal packs; and because the anticipated start date in 2016 does not give sufficient time for the supply chain and retailers to make adjustments, in contrast to the three-year period allowed for the display ban.”
My Lords, the House knows that I have no interests to declare in relation to the tobacco world. I do not smoke, I never have smoked and I do not own any tobacco shares. What I do declare is that for 30 years of my life, before coming to your Lordships’ House or the other place, I worked in marketing, sales, market research and consumer attitude research. I bring those skills to my analysis of the latest evidence before us on standardised packaging.
I also bring the latest evidence that we have on the incidence of smoking today, which was published only a few days ago. I applaud as much as anybody else, and as the House will applaud, the fact that the percentage of adults who smoke in this country has come down to 18.7%. That is the smallest percentage in any developed country. The important point, according to research by a company called Simply E Liquid, is that the key determinants are the new anti-smoking laws, particularly the ban in pubs and restaurants, and the popularity of vaping.
It is against that background that we have to assess whether it is necessary to go as far as my noble friend on the Front Bench in relation to standardised packaging. He is right to say that Sir Cyril Chantler is an eminent paediatrician. He is someone I have known for a great many years; I studied at the same college as him. However, I have to say that eminent paediatrician he may be, but eminent marketer or market research man he is not. That is a key point in relation to the evidence from Australia.
I want to look at four aspects that affect standardised packaging: Australia, HMRC, Codentify, which my noble friend did not mention, and the impact on the packaging industry, which, again, my noble friend did not say a word about. Let us turn first to Australia, which is one of the key dimensions. As my noble friend rightly says, it is the only country to have introduced standardised packaging. It was claimed that the rate of new smoking would decline. In fact, today it is at a seven-year high in Australia. That is evidence from the Australian Institute of Health and Welfare. It was claimed in evidence from the Australian National Accounts that standardised packaging has not accelerated the decrease in tobacco use. It has not accelerated the pre-existing downward trend of smoking rates; that comes from the work of Kaul and Wolf. Health warnings have not become more effective following the implementation of standardised packaging. That comes from the Department of Health and Aged Care in Australia. According to recent work by KPMG, since the introduction of standardised packaging, illegal tobacco consumption in Australia has now grown to its highest level in seven years. By mid-2014, illicit tobacco consumption stood at an unprecedented 14.7% of the market as a whole, some 25% higher than it was in 2012. Those are the facts against which we have to make a decision, which the country will have to accept or not. But those facts were not exactly what my noble friend on the Front Bench talked about. Most of them were not referred to but they are vital in analysing whether standardised packaging works.
I now turn to HMRC. My noble friend put great emphasis on its work but the survey or evidence he cited was from prior to HMRC’s publication on tax gap figures in 2014. So there is further evidence now that my noble friend has, for one reason or another, chosen not to put before the House this evening. The illicit trade in tobacco products costs this country £2.1 billion. It is my view that that money would be better spent on the health service. If we look at some of the components of that, HMRC has now stated that standardised packaging will provide a suitable environment in which the illicit market in white cigarettes will continue to grow. It argues that it is possible that the introduction of standardised packaging will lead to increased attempts to infiltrate counterfeit products into the lower end of the retail supply chain. Finally, HMRC has accepted that plain packaging could increase the likelihood of small local retailers getting into trouble and being prosecuted.
I turn briefly to the Codentify system, something that noble Lords could be forgiven for not knowing much about and which was not even mentioned by the Minister. The draft regulations before us do not provide for the inclusion of Codentify markings on tobacco packs. One must ask: why are they not included? Codentify is a product security and authentication tool that provides a unique, secure identifier for each individual packet of cigarettes and hand-rolling tobacco. It allows manufacturers and, in some ways more importantly, Customs officials to authenticate products and trace the origins of packs all the way from the start of the manufacturing process right through to when they are sold. It plays a vital role in the fight against the illegal tobacco trade because it allows law enforcement officers to check. Without Codentify, it will be impossible for manufacturers to use that existing security and authentication technology between May 2016, when, I understand, the new system is to come in, and May 2019. Why May 2019? Because that is when the second tobacco product directive will be introduced and there will be a new tracking mechanism.
It is all very well for the Minister for Public Health in another place to state that this is being looked at. It is not good enough for your Lordships just to look at things when they are so vital. My noble friend talks about public health. There is nothing worse for public health than having illicit counterfeit cigarettes floating around the market. I hope that when he comes to reply, he will address that issue. Without a means of tracking, I do not see how we will be able to restrict illicit goods entering the market.
The third issue is packaging. As one who has worked in it for many years, I can say that the print industry is very complex; it is not simple. The Minister in another place stated:
“The print industry has known for some time that standardised packaging has been under discussion—the issue has not been recently sprung on it, so it has had a chance to consider how to respond”.
The Honourable Member for Bradford South, Mr Gerry Sutcliffe, disputed the Minister’s claim. He is a former print worker. He told the committee that such a claim misunderstood the nature of the packaging business:
“It takes time in the printing industry, which is very competitive, to offer alternative proposals, even if those are for standardised packaging. It will take at least 18 months to two years for the designs to be made and the buyers and marketers to go out to try to change people’s opinions”.—[Official Report, Commons, Twelfth Delegated Legislation Committee, 9/3/15; col. 24.]
He said that in Bradford alone there are 400 jobs in the packaging industry that may be put at risk and that, with other tobacco control measures that have been introduced, such as a display ban, three years were allowed to make adjustments, which is a reasonable length of time. In this case, it is only 18 months. Why has the time been reduced? It is far too short a timescale. The Consumer Packaging Manufacturers Alliance, which represents a number of packaging companies in the tobacco supply chain, has called for a delay in implementation of the plain packaging regulations if they go through. That will give people time to adjust and understand what the changes are. A great many people do not really understand how complicated and unique the packaging for cigarette products is. It involves gravure printing, rotary embossing and hot-foil stamping. Many other markets do not use those elements and certainly do not involve the huge volume involved.
I appeal to your Lordships to think very hard about the necessity to go as far as is suggested in the Government’s Motion. The introduction of plain packaging for tobacco products will not produce, in my judgment, the results claimed. I base that on the evidence from Australia, which has been authenticated by various government bodies there. I have given the quotations and where they come from.
Frankly, plain packs are little more than a smuggler’s charter. They offer criminals a wonderful template that will allow them to copy tobacco packaging easily and thereby infiltrate the supply chain more effectively. The extraordinary exclusion of the Codentify system from standardised packs will further drive the illicit trade and illegitimate supply and will make it far harder to detect and seize. Without a reasonable revision for adjustment for the packaging companies, hundreds, perhaps thousands, of jobs will be put at risk. Is this really part of the enterprise economy or is it just another example of the UK wishing to be a world leader?
The Motion before us is not needed. The evidence is not there and, on top of that, although my noble friend says that it will never affect another industry, I frankly do not believe him. This will adversely affect trademarks and intellectual property rights and it will affect many other industries as we move forward. It is not a sound Motion and it should be rejected. I beg to move.
My Lords, unlike the noble Lord, Lord Naseby, I am pleased to welcome unreservedly the regulations moved by the Minister and to congratulate him not only on the way he introduced the debate but on the part that he played in persuading his ministerial colleagues that the introduction of standard packaging for tobacco products will make a significant contribution towards public health. I thank him for the kind words that he spoke about me and the other four members of the group, from all sides of the House, who saw the opportunity to add amendments to the Children and Families Bill to introduce a range of tobacco control measures.
The Minister has described in great detail the steps that the Government have taken since the amendments were added to that Bill. The most important of those was the study by Sir Cyril Chantler, who concluded that standardised packaging,
“is very likely to lead to a modest but important reduction over time on the uptake and prevalence of smoking and thus have a positive impact on public health”.
All the objective evidence—I stress the word “objective” for reasons I will explain in a moment—supports the case for standardised packs. It would, in the words of the Canadian Cancer Society:
“(1) eliminate promotional aspects of packaging; (2) curb deceptive messages conveyed through packaging; (3) enhance the effectiveness of health warnings; (4) reduce tobacco use”.
It is precisely because the adoption of these measures will work that the tobacco industry has been spending such enormous sums of money in its efforts to defeat them. The tactics it has followed are consistent with everything it has done to oppose tobacco control measures since the 1950s. First, it attempted to discredit the results of Sir Richard Doll’s research that proved the link between lung cancer and smoking. Then for years the industry denied the addictive properties of nicotine. It lobbied extensively and expensively against every piece of legislation aimed at reducing smoking prevalence, from curbing sponsorship and advertising, protecting people from the effects of second-hand smoke, limiting displays of tobacco in retail outlets, and now these regulations on standard packaging.
The statistics on prevalence, which the noble Lord, Lord Naseby, cited, are an indication that these measures are working and that we have made great progress. It is a great pity that when those measures were before the House they did not have the universal support of all our Members, and I do not remember the noble Lord, Lord Naseby, speaking up in favour of any of them. The tobacco industry funds front organisations which lobby for it, such as FOREST, which makes claims based on so-called freedom of choice. British American Tobacco funded the National Federation of Retail Newsagents’ campaign against the display ban, although to begin with it denied that. It put money into think tanks, such as the Institute of Economic Affairs, which obligingly produces reports following the tobacco industry’s line. What else does the tobacco industry do? It spends a fortune offering hospitality to parliamentarians. The Independent last Wednesday reported under the headline “Plain cigarette packaging”:
“One in four MPs who opposed measures have declared links to tobacco industry”.
The vast majority of gifts declared by the MPs were from JTI and came in the form of tickets to the Chelsea Flower show, worth up to £1,600.
A further effort to influence this debate here and in the other place was made by Imperial Tobacco on 27 February, when it purchased what in the advertising industry is called a “wrap” on the front and back covers of The House, with the monstrous slogan:
“Plain Packaging: Bad for Business Good for Criminals”.
I know a number of noble Lords have written to the editor and to the publisher protesting against this disgraceful use of what Dods still calls Parliament’s Magazine, though it is very different from the journal I co-founded back in the late 1970s, which was edited with such great distinction by the noble Lord, Lord Cormack, who I am pleased to see in his place.
However, it is the sponsorship of spurious research which should concern us most, particularly as it relates to the effect of standard packs in Australia. The claims the industry makes on such matters as smoking rates, the effect on retailers and on the packaging industry, smuggling and counterfeiting—all based on research which it funded—have been shown to be false in almost every respect, mainly because sample sizes were far too small to be of any value and because the questions asked were loaded in a way to produce the response the industry wanted. The Government—and the noble Earl the Minister—have repeatedly made it clear that the incidence of counterfeiting and smuggling has continued to decline in the UK and standard packaging certainly will not make it worse. The experience in Australia supports that.
In his amendment, and in his speech just now, the noble Lord, Lord Naseby, referred to the security system “Codentify”. This is a tobacco industry controlled system which the World Health Organization has concluded does not meet the requirements of the WHO Framework Convention on Tobacco Control anti-smuggling treaty that tracking and tracing systems have to be controlled by Governments, not by the tobacco industry. There is already a marking system on packs in the UK which enables enforcement officers to determine whether cigarettes are counterfeit.
The tobacco industry opposes standard packaging for one reason only, and that is because it works. It reduces the attractiveness of smoking, discourages children and young people from taking up the habit and, over time, reduces national rates of smoking prevalence. Although Australia got there first on standard packaging—I pay a warm tribute to the then Minister of Health Nicola Roxon, who a number of us in this House had the pleasure of meeting when she visited Parliament—the United Kingdom has for the last 10 years been at the forefront of tobacco control measures, an achievement that will be celebrated next Wednesday when the Department of Health’s tobacco programme will receive the Luther Terry award for,
“Exemplary Leadership by a Government Ministry”.
The citation states:
“This prestigious triennial award by the American Cancer Society honours the UK as a world leader in tobacco control, alongside previous award winners such as Australia and the Republic of Ireland. It is the exceptional commitment by successive UK governments to reducing the harm caused by tobacco, supported by an outstanding team of civil servants and enabled by Parliament and the public health community which has led to this award”.
So all of your Lordships who have been on this mission with us deserve a big pat on the back. I support the regulations and oppose the amendment.
My Lords, I congratulate the Minister and the Department of Health on producing a high-quality and thorough set of regulations after a thorough consultation exercise. I join the noble Lord, Lord Faulkner, in adding my congratulations to the department for receiving the Luther Terry Award for Exemplary Leadership by a Government Ministry. It is measures such as these that make Britain a world leader in public health.
In our debates on this subject, I have spoken extensively about the need for these regulations and the evidence that they would make a real difference. The bare facts are these: only one in 10 smokers in the UK started after the age of 19, and two in five started before 16. We have already heard from the Minister the figures on how many people die each year from smoking-related diseases, and the number of children between the ages of 11 and 15 who take up the habit and risk their health by spending hundreds, if not thousands, of pounds a year on a toxic product.
The unconscious trigger of attractive packaging is an extremely successful marketing tool that encourages children and young people to glamorise and take up smoking. Bright colours, sleek designs and slim cigarettes—to name but a few—all make people falsely believe that such cigarettes are less harmful. I remember as an impressionable teenager the impact that some of those cigarette pack designs had on me. It made a big difference and I indeed wanted to start smoking, and did so; and I think I was influenced by some of that marketing material.
I should like briefly to turn to some of the objections that have already been advanced by opponents of these regulations in this debate. First, the tobacco industry has claimed that standardised packaging would increase the volume of illicit tobacco on the market. This is flatly contradicted by a recent HMRC assessment and an independent review by Sir Cyril Chantler, both of which indicated that there is no evidence for such a claim. Indeed, there is no evidence that standardised packs would be easier to counterfeit. Standardised packs are not “plain packaging”—that is a misnomer. They would carry the same security systems as current packs. There is no evidence that that there has been an increase in the illicit tobacco trade in Australia since the implementation of the policy. The total weight of illicit tobacco detected by Australian customs has remained roughly static since 2007-08. Indeed, a recent study shows that there was no change in the availability of illicit tobacco in Australian shops since the introduction of standardised packaging. At any rate, it seems logical that the way in which to reduce illicit trade is through more effective regulations, which these regulations clearly are.
Secondly, the tobacco industry has claimed that standardised packaging would damage small businesses because it would make it more time-consuming for shop assistants to retrieve packs, and that this delay would make tobacco less profitable for small businesses as opposed to large supermarkets. Tobacco companies based these predictions on interviews with just a handful of retailers. In contrast, peer-reviewed studies of small shops in Australia before and after the standardised-packaging policy demonstrate that there was no significant increase in serving time.
It is true that standardised packaging is likely to result in reduced tobacco sales. In fact, it is the very purpose of these measures; it is the Government’s hope and certainly mine. Every pound that consumers no longer spend on tobacco they will surely spend on other goods and it is very likely that small businesses will pick up some of this trade. After all, shops, including small shops, have adjusted to the continuous decline in the prevalence of smoking from half of the population in 1960 to roughly one-fifth now and there is no reason to suppose they will not be able to adapt further. On this point, can the Minister confirm that in the interests of reducing costs to retailers the measures will be implemented at the same time as the packaging and labelling measures in the EU tobacco products directive in May 2016? Can he also confirm that retailers will be given a full year after the implementation date to sell through existing stores of non-standardised packs? It comparison, retailers in Australia were given just eight weeks to do that.
The tobacco industry has made what I think is a very convoluted argument that standardised packaging will lower prices and thus increase tobacco consumption. In the process of conducting his review last year, Sir Cyril Chantler was told by tobacco companies that sales had increased slightly, despite the fact that the industry had told its investors the opposite. Analysis by the independent market research company Euromonitor concurred that there had been a decline in sales in Australia between 2012 and 2013.
As we have already heard, it seems to be contested—although frankly I do not know why—what the impact in Australia has been since the introduction of standardised packaging. I have looked very carefully at what the helpful leaflet Standardised Packaging for Tobacco Products, produced by very reputable organisations such as the British Heart Foundation, King’s College London, the University of Waterloo, Cancer Council Victoria and the UK Centre for Tobacco and Alcohol Studies, has said about the impact so far. It shows that there is a reduction in young people taking up smoking and an increase in the proportion of existing smokers who are trying to quit. Indeed, the National Drug Strategy Household Survey in Australia showed that the proportion of 18 to 24 year-olds who had never smoked increased from 72% in 2010 to 77% in 2013.
A 2014 study from Australia that reported in the British Medical Journal shows that the prevalence of smoking among adults fell by 15% in the second half of 2013 alone. Finally, following evidence that smokers find cigarettes in standardised packs less appealing—which of course is the very purpose of it—there is new evidence that calls to Quitline, a free smoking cessation service, have increased by 78% since the introduction of standardised packaging.
It is a credit to the very thorough and painstaking way that this measure has been developed by the Government that these are the best criticisms opponents can level. Above all, it is time to listen to the 72% of Britons and the majority of all political parties and support standardised packaging.
My Lords, I am a non-smoker but having been in your Lordships’ House for some years one thing that concerns me about this measure is the unintended consequences. One is always worried in this House about them and so we should be. It seems very odd that so few people have expressed the view that tobacco is a legal product. How can you interfere with the marketing and the sales of a legal product? I think the product is undesirable and the arguments of the scientific community about its danger to health are indisputable. However, we have to think rather carefully about what may follow. If you get away with this without too much protest there are all kinds of bien pensants and vigorous politically correct people who will seek to do various things. For example, it could happen quite easily that in some local authority someone of limited life experience might suggest that, with obesity and the compulsion that people have to eat too much, it might be a good idea to prevent restaurants allowing people to eat on the pavement under an awning because that attracts people to sample the restaurant’s delicious wares. Noble Lords may think that this is a trivial, Clarksonesque point, but it bears thinking about.
I am grateful for the efforts that have been made to curb the ill effects of smoking. I am a frequent cinema goer—I have been a film buff since I was a boy. I do not think I would be talking to noble Lords today if they had not banned smoking in cinemas. I may have a husky voice, but I would probably be dead by now, I should think. These are things that have to be considered.
In the speeches so far, there has been scant respect for one thing that is very important to this country, and I hope it will be borne out in the speeches during the election campaign. This is a trading country, and trading countries require freedom in order to encourage the production of goods, to sell them and to market them correctly. If you do not like smoking, then ban it, for heaven’s sake. Do not try to pretend that this is going to deal with it—it is not going to deal with it. We have already seen the unintended consequences on the streets. In some of our best streets in the West End of London you see cigarette ends everywhere because people are smoking at lunchtime in doorways, smoking in the open air and smoking in groups; they are also smoking in their homes because it is unsatisfactory outside so that the smoke filters through badly constructed walls.
There are all kinds of aspects of this whole problem which have not been properly addressed, and I do not think that packaging is the answer. Should the noble Lord who introduced this amendment guide us towards the Lobbies, I shall follow him.
My Lords, I had not intended to speak in this debate, but I want to congratulate the Minister and the last speaker has provoked me to take us back to the time when I, as a Minister, was taking through this House the legislation banning smoking in public places and in the workplace. Some of the arguments which we heard from the last speaker and from the noble Lord, Lord Naseby, took me back to those times, the good old days when Parliament was challenged because it had the temerity to introduce legislation in this area to protect people’s health and, in particular, to try to protect children’s health. We heard the same old rubbish, if I may put it that way, on second-hand smoke, which was later proved scientifically to be as dangerous as direct experience of smoke. We can sit through these debates hour after hour, but the science does not change. The science is the same as it always was. It just gets better for those who want to control the consumption of tobacco. The Government are to be congratulated on taking this legislation forward, and I hope the House will support it overwhelmingly.
Before I sit down, I shall ask the noble Lord, Lord Naseby, whether he enjoyed the Eagles concert last July which he experienced as a guest of JTI Gallaher.
My Lords, I was not planning to speak today, but I have to rise to respond to the noble Viscount, Lord Falkland. If we were to have a logical system in this country for dealing with drugs, tobacco would indeed be illegal. We have lots of drugs that are illegal in this country that are infinitely safer than tobacco, and we all know that, if we were starting today, tobacco would be unlawful. So I simply do not accept the point that, simply because tobacco is lawful, we should allow the market to let rip—very far from it. We know that it is very difficult to make a product such as tobacco unlawful at this stage, but we need to do everything possible to protect the public from the most dangerous drug available in this country today.
My Lords, I declare an interest as on the register of interests. It is a new interest—I recently joined the Lords and Commons Cigar Club, because I was concerned with how the Government have caved in to some of the fanatics in the anti-smoking brigade. They are fanatics, because they seem to hate e-cigarettes, which are good things for smokers to change to, just as much as they hate tobacco cigarettes. There is a powerful case against smoking—we all agree with that—but I would be more interested in their arguments on plain packaging if they would admit that e-cigarettes were actually a good thing for people to change to.
I deeply regret having to oppose my noble friend the Minister. In my 33 years in Parliament, he is the most knowledgeable Minister for Health that we have had in either House. In addition, he is invariably courteous and the most caring and decent man I have ever met. Therefore, I am sorry that, on this occasion, I think that he is wrong.
One knows that a government department or any organisation is scraping the bottom of the barrel to find arguments when we have 21 regulations over 23 pages, and a memorandum trying to justify them running to 103 pages and 388 paragraphs, most of which have nothing to do with plain packaging but make very powerful arguments against smoking in general. The department has scraped together every possible and bogus argument that it can to support the case. Many of the arguments that I have read in the impact assessment seem to be different from the contents of my noble friend’s speech. Paragraph 230 says that local authorities in 2007 spent £342 million on dealing with cigarette litter alone. What an extraordinary figure. That is absurd nonsense—but it adds to it by saying that plain packaging will lead to further savings on litter collection but that the department cannot quantify them. Dead right it cannot quantify them, because I think that they are quite spurious. This reminds me of the Home Office claim during the draft communications data Bill that it would bring about savings of £6 billion per annum, when that £6 billion was based on terrorist attacks which it considered would no longer take place if the Bill was passed.
All the evidence suggests that standardised packaging will lead to a big increase in the illicit market. That is the view also of Commander Roy Ramm, a former Metropolitan Police commander, who gave evidence to the Lords Select Committee. If even I as an amateur, on my £99 Canon printer, can now easily manufacture a matt standard cigarette packet—and, yes, I can do Helvetica and Pantone grey 42 at 8 point, as per the regulations—what will the big criminal gangs in Romania and Bulgaria do? At least they will increase the market for offset litho printing machines. The impact assessment makes tortuous assumptions to get out of admitting that it has not got a clue on the increase in illicit cigarettes that we will inevitably see. Paragraph 192 says:
“We conclude that there is a sizeable likelihood that there will be no discernible increase in the illicit market. However, we also conclude there is a chance that there will be an increase in the illicit market”.
I invite noble Lords to look at paragraph 192—that is exactly what it says. What a way to make policy. We do not know if it will be good or bad, but we will carry on regardless.
Then there is the Australian experience, which has been cited already, and which the Government call in aid even though it has been running for only 18 months.
Paragraph 93 of the impact assessment says:
“At this time it is difficult to conclude what the impact of standardised packaging on Australian smoking prevalence has been, due to confounding issues of a general decreasing trend and changes to tobacco prices”.
So, although we do not know whether it is working in Australia, we will carry on with our policy regardless. That is not a way to make policy. Australia is conducting a post-implementation review, but we are not even waiting to find the Australian Government’s conclusions.
All the evidence suggests that price is the big determining factor in people giving up smoking. With an increase in the illicit market and the fact that counterfeiters will be able to sell cigarettes more cheaply in the pubs, clubs and other outlets that they use, we are likely to see an increase in consumption of even more dangerous tobacco as criminal gangs are able to sell it more easily—they will use even cheaper, nastier tobacco. Nor will we be able to police it properly: the whole Codentify system is in jeopardy and will not be able to easily identify illegal and dodgy cigarettes. I say to the noble Lord, Lord Faulkner, that the system may not be perfect but it is better than nothing, which is the Government’s policy if they go ahead with plain packaging. The idea that a person in a pub will check the barcode before he buys a £5 packet of cigarettes, rather than go to a proper newsagents and get a £7.50 one, is just nonsensical.
I conclude that this is unfortunately a knee-jerk SI. We should wait until we get proper results and measured evidence from Australia. That is the only sensible way to make policy on this important issue.
My Lords, I had not intended to speak this afternoon, although I want to congratulate the noble Earl. I was with him on the beginning of this journey. I think that he has taken this through with due care and diligence. At the beginning, some of us feared that he would not be on the side of the anti-smoking brigade, but he has taken some of these measures very carefully into legislation. As the noble Lord, Lord Blencathra, was speaking, I realised that I was a fanatic—so as a fanatic, I will make just three points.
First, with the noble Lord, Lord Faulkner, I introduced the first Bill that tested the arguments in this House, the London Bill, when the noble Lord, Lord Faulkner, introduced the Liverpool Bill. At the time we were told very firmly by the smoking lobby that cancer was not caused by smoking, that we would actually take money out of the health service because of taxes and that we would lose money rather than gain it if smoking decreased. We received quite a lot of serious and personal accusations about false information. I began that journey there and was the person who brought forward the order to stop smoking in the Peers’ Guest Room. I think that many people have been grateful for that for a long time.
The second reason that I wanted to speak as a fanatic is that I think that there have been some spurious arguments this afternoon. I spent 10 years in the Food Standards Agency working with the food industry, which has had to change its packaging more than any other industry. If the smoking industry is not flexible enough to do as well as the food industry in organising itself to do something else when it loses this packaging, it does not deserve to be in business. Business has to be innovative.
The third reason I am a fanatic is that I have a niece who I brought up as a daughter. She has two children. The youngest has a heart complaint, which is very serious if she gets into any situation where there is smoke. I say that as a personal comment, but noble Lords will know how strongly and passionately I feel about the protection of our children. It seems extraordinary: if packaging with coloured outsides and attractive labels is not attractive to children and selling the product, why is the industry so keen to save it? That is the sheer, simple logic. If any noble Lords are wavering, perhaps they should wonder why so much money is being spent by the industry to protect packaging if it has no impact; it wants to protect it because it does.
So in some ways I suppose that I am proud of being a fanatic. I hope that your Lordships will be with the Minister and oppose the amendment in the name of the noble Lord, Lord Naseby, as I do.
My Lords, I, too, was not planning to speak, but I am most grateful to the Minister for bringing this measure before us. I will make a very simple point. Packaging is designed to make the contents of the package attractive. This is about changing culture and changing the way that people think about tobacco and smoking. We all know the health arguments—they are indisputable and very clear. However, many young people, in particular, are still led astray and into dangerous behaviour—into self-harming of a very subtle but difficult sort.
It is our duty and responsibility in this place to care for what we in the church call the “common good”—to care for the well-being of society and, not least, of young people. It is very clear that making something look attractive will make it more appealing. Making it look, through its packaging, less attractive makes it less appealing. It is the simplest of all arguments. If people are allowed to dress up poison to look good, some people will take that poison. I ask noble Lords to please support this measure and oppose the amendment for the good of our young people and our society.
My Lords, I thank the Minister for putting before us these proposals to try to protect public health. I declare an interest—not that I am part of any cigar club, not that I have shares in any tobacco company and not that I have been wined and dined by a tobacco company. In the last few years, I have seen both my parents die through being long-term smokers, and I have seen the effect that that has had on families. Towards the end of my parents’ lives, when we were talking about their addiction to smoking, they explained that they were attracted to smoking when they were young. Once smokers are addicted, it is very hard indeed to get off the drug.
I want to follow the noble Baroness and the right reverend Prelate by spending a few minutes talking about why I think tobacco companies spend billions of pounds on marketing and packaging. It has become the fifth “P” in the marketing mix. For these companies, it is no longer just about price, promotion, product and placement; now, the package is the most important part in targeting young people. Research by RW Pollay shows that only 10% of people per annum change cigarette or tobacco brands.
On the history of packaging, the law suits, emails, memoranda and notes passed between Philip Morris and its marketing agency make it very clear that the company carries out research through focus groups on the colour, shape and design of its packaging, particularly for young people. Why does it do that? It does so because, if it can attract young people between the ages of 16 and 20—these are not my words but those of the tobacco industry—there is a high probability that the young people will not only start smoking but stay with the brand. That is what packaging is about: it is about addicting the young and keeping them with the brand; it is not about moving market share between brands.
Maybe my language is a bit harsh, but the packaging of cigarettes is about the marketing of death. Out of every two long-term smokers, one will die of smoking-related illness. I do not make that comment for effect or for headlines—the statistics show it to be the case. The evidence from Wakefield and Morley, who carried out research in Australia in the early 2000s, long before standardised packaging came in there, made it very clear that companies do a couple of things to try to ensure that people take up their brands. Companies can no longer advertise on TV, can no longer sponsor sport et cetera and can no longer have big billboards, so they look at the shape of their packaging. They experiment with colour—the lighter the colour, the more it is perceived that that brand is somehow safer, of milder tar. They use colour and shape for young people. They talk about the masculinity of colour and of shape. They go for women and say that certain colours and shapes can actually attract women.
Let us be very clear what this is about. This is not about waiting for evidence from Australia: there has been evidence since the 1950s, when Philip Morris used to spend $150,000—equivalent to $1 million today—on the shape and colour of its packaging to get people to take its product at a young age and to addict them for as long as possible. That is why I welcome what the Government and the Minister are doing.
We have been on a journey to try to deal with the harm. In answer to the noble Viscount, Lord Falkland, the reason that, as a former leader of Sheffield City Council, I would not have accepted this kind of approach for restaurants and licensing is because with this product, which is addictive, there is also a harm principle—harm not just to the individual concerned but to others in families and to others around people who smoke. The role of government is to balance that harm principle. I would never do that for people making a choice over a restaurant, but there is a difference with cigarettes and tobacco.
I conclude by saying that I sat with both my parents as they died. I have seen others who tried to get off this addictive drug, and have seen and read about the tactics of the tobacco industry. I understand that the small thing called a packet is now so powerful in getting people on to this drug that it is important that, as a Government and as legislators of this country, we do all we can to prevent those young children from starting on that journey of the marketing of death. It is for that reason that this is not just a sensible step but an essential one to save lives. We need to make sure that people do not use marketing to addict people to something that is both dangerous and effectively means that one out of every two smokers will die in the long run.
As a small boy in a mining village in County Durham, where my father was a schoolteacher, I was introduced to Woodbines at the age of 11 and started to smoke intermittently but frequently. When I went to medical school, I am horrified to tell your Lordships that we were advised by our teachers to smoke in the dissecting room to remove the smell of the carcasses which we were dissecting. The professor of physiology said that he could not live without smoking and that we were therefore fully entitled to smoke all the way through his lectures. Practically every medical student in those days did.
After graduation, when I eventually became second in command of a hospital ship sailing through the Mediterranean to Palestine and various other places, I could buy a 50-can of Senior Service cigarettes for one shilling and eight pence and that can would last me two days—25 a day I was smoking. None of us at that time knew the dangers of smoking. When I came back out of the Army and started to work in a hospital in Newcastle and then in the National Health Service, slowly but surely the work of Richard Doll and his colleagues on the desperate effects of smoking began to emerge. Eventually, thank goodness, I had the strength to give up smoking—with difficulty—in my late 30s. It was a struggle but I made that sensible decision and thank goodness I did; otherwise, I probably would not be here now.
Smoking tobacco is one of the most appalling health hazards of the age—there is no question at all about that. Not only does it cause cancer of the lung and of other organs such as the bowel and bladder, it has a very powerful effect on the cardiovascular system in causing coronary artery disease and stroke; it also has a desperate effect on the respiratory system in causing chronic obstructive pulmonary disease. It has a devastating effect on all kinds of illness. For that reason, I have been delighted to participate in debates in your Lordships’ House over the years leading to bans on advertising and on smoking in public places— bans that have all been introduced by Parliament in good sense. Any effort of any kind that can prevent young people taking up this appalling habit is well worth while.
I say to the noble Lord, Lord Naseby, that my friend Sir Cyril Chantler is not a master of the kind of market research that he talked about but he is an expert in epidemiology and in statistics, and his research clearly demonstrated that standardised packaging is,
“likely to lead to a modest but important reduction over time on the uptake and prevalence of smoking”.
Any measure that has that effect and prevents young people taking up smoking is well worth while, and for that reason I regard standardised packaging as another essential regulatory measure in addition to the ones that have been passed by your Lordships’ House and by Parliament in general in having the effect of preventing youngsters from taking up this appalling habit.
I therefore strongly support the regulations, I strongly support the excellent introduction by the noble Earl, and I am afraid that I regard this Amendment as having another devastating effect, which is without question not necessarily sponsored but supported by the tobacco industry, which has done so much to delay the development of these important public health measures, which have made such a great contribution to public health.
My Lords, like my noble friend Lord Blencathra, I declare an interest as a member of the Lords and Commons Cigar and Pipe Smokers’ Club—and proud of it. Also like my noble friend Lord Blencathra, I commend and congratulate my noble friend the Minister, who could not be a nicer man, on leading the debates on this subject and indeed on tobacco-related products in general so courteously over many years.
However, I am glad to support my noble friend Lord Naseby. I may be the only Member of your Lordships’ House who has experience of plain packaging in this country; I am trying to see whether anybody is going to disagree with me. That was when I first joined the Navy as a national serviceman aged just 18, when I was offered what were called “Blue Liners”. They came in totally plain packets and all there was on the cigarette was a minute blue line running along it—no name of the manufacturer, nothing of the sort. It certainly did not deter me from taking up smoking, nor did it deter any of my colleagues. I just do not believe that plain packaging will deter the young—who ought to be deterred; I could not agree more—from taking up smoking.
My Lords, I want to provide a few anecdotal points in this debate today. I was prompted by the remarks made previously about criminals engaging in illicit cigarettes. Eight or nine years ago, I went on a parliamentary visit to China and saw for myself the number of sophisticated cigarette factories that the Chinese were closing down every week. In China, 25 to 30 factories were closed every week. But in the UK, the total number of Customs representatives that we had patrolling China was exactly one, and that person was based in Hong Kong. I say that if the Government want to crack down on this illegal trading, which is supposed to be producing about one in three illicit cigarettes in London, they have to tackle it very robustly at HMRC level. That is the lesson that we have to learn from this.
I was a smoker when I was young. The noble Lord, Lord Geddes, made the point that plain packaging on cigarettes did not have any effect on him. It did not have an effect on him because—I say this with due respect—that was a number of decades ago. At that time, there was a culture of smoking. All of us smoked at the time; I smoked when I was in school. In fact, we smoked Woodbines. If anyone has seen the Woodbine packaging they will know that it was not very attractive, so the more sophisticated ones went on to Benson & Hedges or Marlborough. We had a particularly nasty teacher in the school, who was a smoker. He could detect the schoolboys who were smoking. He smelled our hands, called us smoky beasts, took our five Woodbines or whatever off us, and gave us a belt at the same time—not very fair. But lots of us were engaging in smoking, because that was a good thing to do.
I was brought up very short when my late father had to enter hospital with vascular problems. I visited the Western Infirmary in Glasgow—this was about 50 years ago—and to this day, I remember the name of the consultant and I remember the brutal message that he gave me. The consultant’s name was Mr Gray—Mr Reid, sorry. Mr Reid—I wrote it down, but that is what happens when you get into the House of Lords—said to me, “Your father is suffering from severe vascular problems and he will most likely have to have his legs amputated”. Indeed, he had both his legs amputated. Mr Reid asked me whether I was a smoker, to which I said yes. He said, “Listen, my boy, you look round every bed in my ward and you will see no one other than smokers, so the lesson I have for you and your friends is that the sooner you stop smoking the better”. That stayed with me. I did stop smoking and it was the best thing that I did in my life.
I commend the noble Earl for the work that he has done and say to him that this legislation has come not a day too soon.
My Lords, I cannot resist putting in my oar at this stage, very briefly. I have been associated with the anti-smoking campaign for many years, in the Commons and in the Lords. I gave up smoking in 1974, I think—the noble Lord, Lord Walton, will correct me—when the report was published on the links between smoking and lung cancer. I had taken up smoking as a teenager—I say this to support all those people who say that packaging is important in attracting young people to start to smoke—and was taught to smoke by my brothers and their friends in somebody’s back garden because they did not want a sister who choked and did not know how to do it. I do not think that we used the word “cool” in those days, but they wanted me to be cool and be able to smoke. It must have been a very rich friend of my brother, because the cigarettes that he produced to teach me were those wonderful multicoloured ones with gold tips—I think that they were called cocktail cigarettes; I shall not mention the brand. I had never seen anything quite so attractive in my life and, for a while, I was seriously hooked on them until I found out how much they cost. I then investigated something called Black Russian, which were even smarter, if that was possible. I as a teenager then knew perfectly well that it was not just the packaging but the appearance of the cigarettes that was attractive. They were very smart to be able to handle because they were different colours—some noble Lords are smiling; they obviously remember them.
What is important about this measure is that it tackles the appearance of cigarettes, which should be uniform. I wholeheartedly support it. I am glad that I gave up smoking all those years ago. I hope that the majority in this House will support the regulations.
My Lords, I do not smoke. I am married to a smoker and I do not like her smoking, but that is not the point. The point about legislation is its effectiveness. What worries me about gesture legislation is that it comes about because something ought to be done about something.
As far as I know, with the current packaging situation, we have about 19% of the country smoking. Without any advertising, packaging or public involvement, we have about 21% of the country using illicit drugs. It does not seem therefore that packaging is necessarily the determining effect. If anything, the more you drive smoking underground, the more attractive it seems to become. We should be slightly careful how we tackle it. Perhaps it should be looked at as part of the overall issue of how we deal with the problem of addiction and drugs instead of trying to target a little bit of advertising, with lots of people having preconceived ideas. I am not a qualified advertising man, but I think that the purpose of packaging is to try to make somebody switch from one brand to another. I do not think that it is what makes people smoke, but I could be wrong. The statistics suggest that we should not drive it underground.
My Lords, I do not want to trump the ace of the noble Baroness, Lady Tonge, when she said that she gave up smoking in 1974 but, in 1950, at the end of my first year at university, I became very ill. I spent 12 weeks in hospital with a chest complaint—the doctors thought that it was tuberculosis, but mercifully it was not. At the end of it, the surgeon came to me—he was the professor of thoracic surgery at Newcastle, George Mason; the noble Lord, Lord Walton, will remember him. He said to me, “I think you’re going to be all right but, tell me, do you smoke?”. I said yes. He said, “Well, you shouldn’t”. I said, “Oh, come on. My father’s been talking to you”. He said, “No, I haven’t talked to your father, but one of our students in the University at Newcastle”—it was Dr Strang, who again I think the noble Lord will recall—“has just written a thesis where he has claimed to find a connection between smoking and lung cancer. I’ve scanned it and I haven’t properly been through it, but I found it very compelling. You’ve done the first year of a science degree. You will understand not all of it but most of it, and I’ll give it to you”. The following day there arrived on my bed in the hospital the thesis by this young student. I read it and I was so horrified that I have never smoked a cigarette from that day to this—I was smoking about 25 a day at that time. Ever since then, I have taken a great interest in the connection between smoking and lung cancer. I heard what the noble Lord, Lord Walton, said about the horrors of tobacco, which I thoroughly support. All the time since, I have listened to the arguments one way or another, as we have listened to the arguments here today.
I come back to what the noble Lord, Lord Faulkner of Worcester, said earlier about the publicity of the tobacco industry. I remember so well through the 1960s and 1970s, when I was in the other place, what I can only call the wicked advertisements, publicity and PR of the tobacco industry. I think the connection between smoking and lung cancer became clear in the 1950s, yet in the 1960s and 1970s the tobacco industry still tried to pretend that there was no danger whatever. That really was wicked.
I have not, I confess, examined the arguments about packaging this time but I listened to the arguments tonight. Bearing in mind the negative start I made—I admit it—when looking at the publicity of the tobacco industry, it seems that this is an experiment well worth trying. For that reason, I most strongly support the Government’s line tonight.
I have been very patient. Let me first declare my interest: I am a member of the Lords and Commons Cigar Club. Although I am a non-smoker, they tolerate me. I suppose I am an associate member rather than a full one.
The more I have listened to this debate—and I have listened to the whole of it—the more I feel that it should have been about a Bill to abolish tobacco. It has not really been about packaging but about the evils of tobacco and the tobacco companies. The attack on the tobacco companies by the noble Lord, Lord Faulkner, was one of the best I have ever heard him make. No doubt they will take note of what he said. However, the noble Viscount, Lord Falkland, was right. If we believe that tobacco is so dangerous—the noble Lord, Lord Walton, had no doubts about how dangerous it is—we should bring forward a Bill to ban tobacco as a dangerous drug. So long as that is not done, all this talk about tobacco is sheer hypocrisy. The Government are hypocritical about it because they do not want to lose the money that it gives to the Exchequer. They are trying to get rid of tobacco smoking but they will not come out and say so in the open. They will do it by stealth. This order is one of stealth.
I have been in this House since 1983 and in that time have spent some 25 years talking about tobacco and restrictions on it. Indeed, I remember that during the last Government I sat in a committee on the same side as the Minister, who then opposed the—what was it called?—ban on tobacco display. We were on the same side at that particular time, as he will recall. That went through but, of course, it has not yet been fully implemented. It does not come fully into law until April. Before we have the display ban, we now have the plain packaging ban. It would be useful if we could implement previous legislation before we start bringing forward more legislation. Does the House not think that that is sensible? The Government obviously do not think that it is.
Then there is the ban on smoking in cars; even that has not come into operation yet. It is now beginning to be understood that it will be difficult to enforce. It seems to me that it was absurd to pass such legislation, because the fumes coming into the car all the time, as they do, are probably more dangerous than the occasional smoke that the driver or passenger in the car might care to have. It would be useful if we could implement those laws that we have passed before we put yet another law on the statute book.
In relation to tobacco itself, as I have said, I am a non-smoker, but I resent the demonisation of people who do smoke. It is not right in a democracy that we should treat such people as pariahs. That is what is happening to them and I believe that that should not be done in a democracy.
When the noble Earl introduced the regulations, he said that this provision would not be extended to other foods or habits—but he will probably find that he is on the wrong track. I was reading in today’s Times a little piece which says that Susan Jebb, the Government’s obesity adviser, wants snacking on the move and eating meals without vegetables to become socially unacceptable. She wants the Government to learn from tobacco control. If that is what the Government’s own adviser has said, quite clearly further restrictions may be on the way.
Before I sit down I will talk about some other dangers that people face, for example from alcohol. It has been said in this debate that tobacco is the most dangerous drug. I can assure your Lordships that it is not; the most dangerous drug is alcohol. In fact, it is not only responsible for disease—I saw a figure yesterday saying that it causes £50 billion of harm to the National Health Service—but socially bad as well. If people smoke a cigarette, they do not go home and beat up their wives and children. People who are full of alcohol very often do that. Outside pubs, people also get stabbed but they do not get stabbed if they smoke a cigarette. So alcohol is the most dangerous drug, yet it is advertised certainly as much as tobacco, and perhaps even more. Bottles and cans of alcohol are full of great advertisements and colourful—yet, as I have said, it is the most dangerous drug that there is.
Finally, we are now told—in some papers, anyway—that obesity is more dangerous than tobacco, which contradicts everything that has been said here this afternoon. When the Minister says that the Government do not intend to go on to other products and bring in bans or restrictions on advertising them, he may well be proved wrong. The fact that we are interfering with an industry’s right to advertise its product is dangerous to our democracy and ought not to be allowed or supported in this House, of all places.
My Lords, I sense that the House is ready to come to a view on this very interesting matter, and I am looking forward to the response of the noble Earl, Lord Howe. I should start by declaring my interest as president of the Royal Society for Public Health.
Not surprisingly, noble Lords will know that I support the regulations, for which the Labour Party campaigned vigorously. The noble Lord, Lord Stoddart, is right that they come on the back of a successful amendment in your Lordships’ House to ban smoking in cars when children are present. Like the noble Earl, I pay tribute to the noble Lord, Lord Faulkner, the noble Baronesses, Lady Tyler and Lady Finlay, and the noble Lord, Lord McColl, for their outstanding work on this issue in your Lordships’ House.
I have some questions to put to the noble Earl, Lord Howe, in relation to the effectiveness of the measure, following the debate. That is the fair test that we need when reaching a decision. First, can the noble Earl confirm that opinion polls have shown very strong support among the public for this policy? Does he agree with me that, if we look back at the measure we passed in relation to smoking in cars with children present, again the public showed enormous support for the action that was being taken? It is not as if we have an authoritarian measure, imposing a sort of public-health view on the public; what we have here is a sensible measure that the great majority of people in this country support.
I turn now to the evidence. I listened with care to the comments of the noble Lord, Lord Naseby. Does the noble Earl stand by the evidence contained in the impact assessment published with the Explanatory Memorandum? Is it his view that, far from what the noble Lord, Lord Naseby, said, the evidence is clear about the Australian experience so far? Industry leaders have talked about market decline in Australia. On a point made by the noble Lord, Lord Walton, I refer to Sir Cyril Chantler. He may not be a marketing expert, but, goodness me, he is a man of enormous reputation in his ability to sift evidence, so can the noble Earl confirm that Sir Cyril Chantler took a highly dispassionate view on this issue? He made himself available to people on all issues. It is not an emotional report; it is a dispassionate, weighing up of the evidence.
On the issue of illicit trade, can the noble Earl confirm that the HMRC concluded that standardised packaging is not likely to have a significant effect on that? In answer to the point raised about the paragraph in the assessment, is his reading of it that, on balance, it is “very unlikely” to have an impact on illicit trade? The words, “very unlikely” mean that obviously there is a small percentage chance that it might not. That is my reading of that paragraph. Will he confirm that I am right about that?
As for the view of the noble Viscount, Lord Falkland, that because it is legal we should therefore not place any controls around it, I fail to understand the argument. Driving is legal, but we do not recoil from setting speed limits. There is general support for seat belts. Is that not the same issue? It is a legal activity, but we are right to place constraints on it to safeguard people from its worst effects.
On whether the packaging industry will be hit by the change to plain packaging, can the Minister confirm that cigarette packaging accounts for less than 5% of all packaging cartons manufactured in the UK—and, of course, packs will still be required in future? Perhaps he can then address points made about questions asked in the other place that were not answered. There is a question about the process and timetable to be followed once the regulations, if accepted by your Lordships’ House, are put in place.
The question of enforcement was raised today. I understand that several local authorities have advocated the need to ensure that trading standards officers are equipped and trained to implement the measure. That is clearly important, and perhaps the Minister can say something about the programme by which the Government intend to help local authorities once the regulations come into law.
My view is that the noble Earl, Lord Howe, in his speech today, in the regulations, in the Explanatory Memorandum and in the impact assessment has made a very powerful case for why the regulations should be passed. I sincerely hope that the House will listen to that and pass the regulations.
My Lords, this has been a very powerfully argued debate. I am grateful to those noble Lords who have welcomed the regulations for the many supportive points that they have made. I also thank my noble friend Lord Naseby for setting out his objections and concerns with his customary clarity and courtesy. Several noble Lords have already done part of my job for me in responding to my noble friend’s critique, but I believe it to be incumbent on me to address directly all the matters that he raised, as well as the questions posed by other speakers.
I turn to the issue of the illicit trade and the evidence from Australia. Contrary to what the tobacco industry would have people believe, the evidence from Australia does not show an increase in the illicit market in that country following the introduction of plain packaging. There have been a number of criticisms of the tobacco-funded reports on that issue. It is therefore useful to consider the data provided from official Australian government sources. Official data from Australia on the use of illicit tobacco show a drop in those aged 14 years and over currently smoking illicit tobacco following the introduction of plain packaging. From 6% using illicit tobacco in 2007, the figure dropped to 5% in 2010 and then to under 4% in 2013—after plain packaging had been introduced.
A study published in BMJ Open analysed data from smokers before, during and one year after the introduction of plain packaging in Australia. The proportion of smokers reporting current use of illicit tobacco did not change significantly after plain packaging was introduced. I assure the House that the Government have looked very carefully at the potential impact on the illicit market. Tackling tobacco smuggling is a government priority. I can tell the noble Lord, Lord McFall, in particular, that, due to the fantastic work of HMRC and others, there has been a long-term decline in the tax gap for tobacco products over the past decade. The potential impact of standardised packaging on the illicit trade was considered extensively by HMRC, Sir Cyril Chantler, the Select Committee’s inquiry on smuggling, the Trading Standards Institute and RUSI. They all concluded that standardised packaging will not have a significant impact on the illicit market. HMRC has undertaken a detailed assessment of the potential impact of standardised packaging on the illicit market, which is the most comprehensive and reliable information available. Its assessment is that:
“We have seen no evidence to suggest the introduction of standardised packaging will have a significant impact on the overall size of the illicit market or prompt a step-change in the activity of organised crime groups.”
The Trading Standards Institute, which has extensive experience of tackling illicit tobacco at retail level, said in its consultation response that it,
“is aware that the tobacco industry regularly argues against standardised packaging for the reason that it will inevitably lead to an increase in the illicit tobacco trade. The Institute does not regard this as a valid argument”.
My noble friend referred to the system known as Codentify. That system is a voluntary security feature developed and controlled by the tobacco industry. We know that HMRC is starting to make use of the system to assist in identifying illicit tobacco. We are working across government to ensure that anti-counterfeit systems that are useful to HMRC and other enforcement agencies now and in the future can continue to feature on standardised packs. That will require such anti-counterfeit systems to be put on to a statutory footing.
My noble friend suggested that the prevalence of smoking had increased in Australia and that standardised packaging had not helped. Australian government figures show that smoking prevalence is in fact at an all-time low since the implementation of standardised packaging, with a 15% drop between 2010 and 2013. This change is likely to be attributable to the cumulative effects of a range of policies, including standardised packaging.
My noble friend also referred to the study by Kaul and Wolf apparently showing that smoking had increased among teenagers. The Kaul and Wolf report was funded and its release was closely directed by Philip Morris International, part of the tobacco industry. It was based on a specific survey of population smoking that is not intended to provide reliable estimates of smoking among teenagers, and the sample size was very small. It also compared figures immediately before and after implementation, and the effects of standardised packaging are more likely to be gradual. It is not a reliable study, we suggest, from which to draw any conclusions.
My noble friend Lord Blencathra urged the Government to wait for more evidence from Australia. He may like to know that studies in Australia have found that smokers buying standardised packets reported being more likely to prioritise quitting than smokers using fully branded packs. Calls to quit lines have increased. Smoking has decreased in outdoor cafes and fewer packs are being displayed on tables.
What has happened to tobacco sales in Australia? There have been suggestions that sales have gone up. Sales of tobacco can be measured in many different ways—sales by manufacturers to wholesalers, wholesalers to retailers or by retailers to consumers. Different pictures of sales emerge depending on the source of the data and the timeframe. In fact, official government data from Australia suggest that a continuing decline in per capita consumption of tobacco products has taken place. Commonwealth Treasury figures show that excise and customs clearances of tobacco declined by 3.4% in 2012-13, and that is generally regarded as the most reliable indicator of population sales.
I turn now to the print industry and my noble friend’s complaint that more time should be given to the print industry to enable a proper lead-in period. Standardised packaging is not a policy that has been sprung on the print industry. It has been under discussion since 2008 and two public consultations have been held on the subject, as I mentioned earlier. The regulations would come into force in May 2016, which provides the print industry with a lead time of over a year. I confirm to my noble friend Lady Tyler that the regulations will be implemented at the same time as the European directive is transposed in May 2016, so the industry does not have to undergo two changes to its manufacturing process.
The previous changes to tobacco packaging, such as the requirement for picture warnings in 2008, showed that a 12-month period in which to sell through old stock is appropriate and that stock sells through more quickly than one year. In answer to my noble friends Lord Naseby and Lord Blencathra, it is not true to say that standardised packaging will make it easier to copy packs and therefore make things easier for counterfeiters. Standardised packaging would remain complex to counterfeit. The packs will continue to feature large and complicated to reproduce picture health warnings and will retain all the security features currently on packs, including covert anti-counterfeit marks. The European Union directive includes provisions on the printing of labels. As I said, we have given very careful and measured consideration to that. We believe that the synchronised introduction of the provisions in the directive with the coming into force of these regulations is a sensible course.
Mention was made of intellectual property issues. As I said earlier, we have given very careful and measured consideration to all legal aspects of the policy, and this includes intellectual property aspects. These regulations regulate the use of tobacco branding, which includes trade marks. I emphasise that we regard tobacco as a unique consumer product in this context because it is a uniquely harmful consumer product. For the record, we do not consider that these regulations breach intellectual property laws or our international obligations in relation to trade marks.
I listened with care to my noble friend Lord Geddes, who argued from experience of his National Service that plain packs would not deter smoking. He referred to “Blue Liner” cigarettes, which I was interested to hear about. However, there are several key differences with regard to our proposals. First, the regulations we are considering mandate health warnings, which did not appear on “Blue Liner” cigarettes. Secondly, there is the colour of the packaging. Our regulations take into consideration the extensive market research the Australian Government undertook to determine the most effective designs for standardised packaging. Of the eight different colours tested during the research, dark brown packaging was the least appealing and thought to contain cigarettes most harmful to health. After carefully considering the research, our regulations adopt the same dull brown colour as the packs required in Australia.
The noble Viscount, Lord Falkland, referred to the possibility of unintended consequences. We believe very firmly that the benefits of these regulations far outweigh any of the unintended consequences that might come from introducing standardised packaging. In some cases, we are not convinced that certain predicted unintended consequences are anything more than scare stories. The department has run two consultations on standardised packaging, which contributed to our understanding of all the relevant factors in making our decision.
My noble friend Lord Blencathra queried the Explanatory Memorandum. I think he might have been referring to the impact assessment, which was rated green by the Regulatory Policy Committee, meaning that it is fit for purpose.
The noble Lord, Lord Hunt, asked about public support for standardised packaging. Multiple surveys have shown that the public support it. A YouGov poll in spring last year, with a representative sample of 10,000 people, found that 64% of adults in England supported standardised packaging while 11% opposed it. Even among smokers, more people were in support of or neutral towards standardised packaging than opposed it. After the implementation of standardised packs in Australia, support for the policy increased from 28% to 49% among smokers. Survey data from Australia show that more smokers approve of the policy than oppose it.
The noble Lord, Lord Stoddart, made a point that I have heard him make powerfully before—that alcohol is, in fact, the most addictive and harmful drug, not tobacco. I just say to him, as mentioned in my speech, that all smoking is addictive and harmful to health, and half of regular smokers are eventually killed by smoking-related illness. That is simply not true of other consumer products such as alcohol. Tobacco is being treated uniquely in regulatory terms because it is a uniquely harmful consumer good. All smoking is addictive and harmful to health. Therefore, to be absolutely clear, we see the introduction of standardised packaging as a unique approach to tackling smoking and its appalling effect on public health. It fits within a comprehensive tobacco control policy.
We are proud that smoking rates are the lowest ever recorded in this country, and my noble friend Lord Naseby was right to point that out. However, we cannot rest on our laurels. In other parts of the world we have seen that if Governments take their foot off the pedal with tobacco control, smoking rates can go up. For the good of public health, we want to continue our policy action to see smoking rates continue to fall, which is why I once again commend these regulations to the House.
My Lords, I should like, first, to thank my noble friend on the Front Bench for addressing the four points that I raised and were vital to be addressed. I shall comment on only two short matters because I sense that the House wants to move on.
My first comment is on youth smoking, which a number of Members raised. One may dispute this or not, but the facts are that the Australian Institute of Health and Welfare has stated that youth smoking rates have not declined as a result of standard packaging; in fact, they are at a seven-year high. Secondly, there is the matter of illicit tobacco consumption, which is the issue that worries me most. One has only to go round a building site in the United Kingdom today. I recently did so and checked a bit. Illicit tobacco is being offered on many building sites in this country; it is costing the Revenue and genuine companies a great deal. Not only that, when we look at Australia specifically, which we have done this evening, we see that by mid-2014 in that country illicit tobacco consumption stood at an unprecedented 14.7% of the market—25% higher than it had been in 2012. Whatever anyone says, as far as the industry is concerned—after all, it knows exactly how many cigarettes are produced and sold—that is a crucial area, and a crucial area of public health. Unless someone does something about that, we may well find increasing numbers of counterfeit cigarettes imported into this country. That will have an effect on public health because they kill even quicker than the genuine ones do.
I am grateful to all those who have taken part. I particularly thank my noble friends who have supported me this evening. Some home truths have been spelt out by the noble Lord, Lord Stoddart, the noble Viscount, Lord Falkland, the noble Earl, Lord Erroll, and a number of other colleagues who have supported me. The key issue, however, is a little wider than the tobacco industry, because what this Motion does, if it goes through—I imagine that it may well do so—is totally to undermine intellectual property rights, which are the very foundation of our modern capitalism. Intellectual property rights are fundamental to every business and defend a company from rogue competition—wherever it may come from—and, in my view, from totally misguided Governments on occasion.
I have to decide whether to divide the House. I take note of the fact that in another place nearly 25% of that Chamber voted against the Motion. I sense this evening that about 25% are against this Motion and I thank that 25% for the support they have given me. Nevertheless, it does not seem to me to be terribly productive for us all to march through the Lobbies and for me to get only 25% of the vote, or thereabouts, so with the leave of the House I will withdraw my amendment.
Amendment to the Motion withdrawn.
City of Birmingham (Scheme of Elections) Order 2015
Motion to Take Note
My Lords, I am very glad to debate the City of Birmingham (Scheme of Elections) Order 2015 and glad to see that we have such a full House still for this important debate.
This order imposes on our second city a new scheme of elections that commence in 2017. It also changes Birmingham’s current practice of retirement by thirds and moves to all-out elections. Noble Lords need to be aware that last week the Government laid a new order that actually amends the order we are debating this evening by changing the date of the first all-out elections from 2017 to 2018. That order has not been through the scrutiny committee and other scrutiny processes and, no doubt, there will be a report to your Lordships’ House, I believe after the next meeting of the scrutiny committee next Tuesday.
I want to raise some issues about the change to all-out elections but I want to set out the context. I have lived in Birmingham for nearly 40 years. It is a wonderful city—very vibrant and friendly—but it faces a number of real challenges at the moment. Its economy has underperformed compared with London, Manchester, Liverpool and Sheffield over many years now. Parts of Birmingham are among the most deprived in the country. In fact, we have more poor children in Birmingham than in any other part of the country and many of our adults are locked in a spiral where they have low skills and cannot take advantage of some of the new jobs that are being created in the city.
Birmingham has a great history, great strengths and potentially a great future but a lot of that depends on the city council and the quality of leadership it provides. At the moment, it is fair to say that it is being held back by a number of very significant problems. Its children’s services have been rated inadequate or worse for a number of years now. The Trojan horse incident raised a lot of serious issues about the education service in general and about the city council’s engagement and understanding of its local communities. Its financial position, following the equal pay debacle, can be described at best only as horrendous.
The city council is subject to a number of interventions. My noble friend Lord Warner is a commissioner appointed by the Secretary of State for Education looking particularly into children’s services. Sir Mike Tomlinson has been appointed in the wake of the Trojan horse issue and Sir Bob Kerslake, the former Permanent Secretary at the Department for Communities and Local Government, has undertaken an independent review of the governance and organisational capabilities of the city council. That is what I want to focus on. Let me say at once that I believe Sir Bob has undertaken an enormous task. I am very grateful to him for it. His report is well written and many of its conclusions are absolutely right. However, there are some issues I want to raise, particularly in relation to this order.
Where I think Sir Bob is absolutely right is that he says, essentially, that for Birmingham to achieve its full potential and deal with some of the problems I have mentioned, the city council has to rethink its role and the way it does its business. In a telling phrase in the report Sir Bob says it has to end the,
“not invented here, silo-based and council knows best culture”.
Leadership of the council has changed hands between the three political parties over the past few years. I was a member of the city council a long time ago, but I recognise that criticism. Of all the changes Birmingham needs to make, that is probably the one that I would focus on.
Sir Bob goes on to talk about the governance of the city council. In particular, he says that the council needs to clarify roles, responsibilities, behaviours and ways of working expected in relation to the leader, the cabinet, councillors, chief executive and officers. I agree with that too. I agree that the city council should draw up a robust plan on managing the financial challenges it faces. I certainly agree that it needs to establish a new model of devolution and partnership with key stakeholders. As a former chairman of an NHS foundation trust in Birmingham, I am struck by the inability of the city council to forge strong relationships with other key players in the sector. That is an issue that goes across leadership between two different administrations. I certainly support the recommendation that there should be a combined authority—what I would call greater Birmingham—covering Birmingham, Dudley, Sandwell, Walsall, Wolverhampton and Solihull, rather in the way that Manchester has been developed, in order to deal with some of those cross-local authority strategic issues.
I want to have a debate, because it is important that this is debated, on the proposal about the scheme of elections and the move to all-out elections. Sir Bob says:
“Birmingham City Council is an outlier on the size of the council and the size of its wards. It has 15 of the 20 wards with the largest population in the country”.
Because Birmingham is forecast to have a big growth in population over the coming years, those wards are likely to become even bigger. There are already 120 councillors but, speaking as a councillor in a three-member ward representing 22,000 electors, it is a very tough challenge for 120 councillors to represent effectively a population of 1 million. We are going up to 1,150,000, yet Sir Bob’s proposals are to reduce the number of councillors. For ward councillors, that is going to be a major challenge.
Sir Bob also says that we should move away from the traditional, current election by thirds to all-out elections. If you read the report, he clearly favours reducing the number of councillors and moving to single-member wards, rather than multimember wards, at the same time. I know opinions differ about the merits, or not, of all-out elections and elections by thirds. Essentially, it depends upon what you are used to. I spent time as a councillor in Oxford and I have lived in Leeds and Birmingham, so for me the natural order of things is election by thirds. Equally, I am sure that the Minister thinks all-out elections are the right thing to do because that is what he has experienced. It is a 50:50 argument. I know Sir Albert Bore, the leader of Birmingham City Council, favours the move to all-out elections because he thinks they will provide greater certainty of political control over a four-year period, allow confident medium-term financial and strategic planning for that four-year period and that the majority group will have a clear mandate for the whole of the period. Well, that is fair enough—I am not going to argue about that. I like the old tradition of election by thirds; it makes sure that the electorate have an opportunity to have a say on an annual basis. None the less, I very much accept what Albert has said. However, I worry about reducing the number of councillors. Even more worrying, for me, is the fact that the city council will be subjected to a boundary review. The chairman of the Local Government Boundary Commission has already been in the city and has issued a challenge to local councillors to say that, if they do not like the reduction in numbers, they must put up a convincing case against it.
The problem that I have is that, in the original Kerslake report, he identifies that this great city of Birmingham is facing mega-challenges in its leadership and partnership approach as well as in how it operates, the services it provides and the skills of its people. Yet we know that the moment the commission starts to do its work, in a situation in which it is proposed to reduce the number of councillors, the focus of most councillors’ attention will not be on these core issues of leading Birmingham out of the very difficult situation that it is in. It will be about responding to the boundary commission review and worrying about the new wards, and selection will then take place. Councillors’ focus will be on those really rather secondary issues rather than on the core issue of tackling the problems that Sir Bob addresses.
The reason I am raising the issue tonight is to ask the Minister to give this some consideration. After all, another order is coming down the line. The last thing that we need in Birmingham is the distraction of a wholesale boundary review, which will get rid of three-member wards—so it will be a mega-change. We need to focus on improving the services in the city of Birmingham. I beg to move.
My Lords, I support the order. I was born and raised in Birmingham, and my first and last jobs in manufacturing were in the city. I am old enough and my memory is still good enough to say that I can still recall my mother’s Birmingham co-op number. I served in the Commons as the Member for Birmingham, Perry Barr, where I went to school and had my paper round, for 27 years. Although I no longer pay council tax in the city, I have just arrived at your Lordships' House from chairing the Neighbourhood Partnership Board at Castle Vale in the city. So I am now an outsider, but I have insider roots, insight and, indeed, support. However, my memory is also good enough to remember how the city was considered by others as a leader over five decades, over a variety of issues—an exemplar.
At the time when the noble Lord, Lord Nash, made the Statement in this House last year on 22 July, I did not get the confirmation—it was buried in the paragraphs—that the Kerslake review would not have any no-go areas. As such, in July, I put in my long-held views to Sir Bob about the governance of the city being split into separate boroughs. I copied my views to the city leadership at the same time—I have always been quite open on this point, which I raised in the 1980s and the 1990s. The city is too big. London does not suffer for being split into 32 boroughs, and Birmingham would not suffer for being split into two, three or four boroughs.
Sir Bob, who is soon to join your Lordships' House, has explained to me why his team went for what is in the order, and I accept that. I am not going to go over that tonight; it is not the time. His review makes it crystal clear that, if the city council fails to improve, questions of size will continue to be asked. Improvement is urgently required. As my noble friend just said, there are currently two government-imposed commissioners working in the city due to it failing—I do not like saying that, but that is the reality—in education and in children’s social services. The city has massive potential to return to being an exemplar for strong, good local government, as it was in the past and I want it to do so.
When I attended the Labour Party conference last year, I did not waste too much time in the conference hall, which is a waste of time. But I did not waste too much time: I went to every single fringe meeting dealing with urban affairs and city growth. I concentrated on that because I knew what would happen. The Kerslake review had been set up; it had been announced in July. Not once at any meeting I went to was the word “Birmingham” uttered as an example of what was being done as a beacon for others. It was always several other examples of cities in the country on various issues. The Birmingham leader knows this to be true because he sat alongside me for the whole of one of those meetings.
Usually when Manchester is mentioned, it turns out to be Greater Manchester that is being referred to. That is a misnomer, but the fact is that it is the 10 authorities working together—which has not been the case in the West Midlands. I remember being in Birmingham Council House with all the local authorities present years ago in 2004, when I was an ODPM Minister dealing with regeneration. I was the soft cop; my official was the hard cop. I uttered the phrase “Greater Birmingham”—I picked bits of the roof off my head later that day.
More recently, when I was chair of the Food Standards Agency I launched the food hygiene rating scheme in the north-west of England in Greater Manchester. Every single one of the 10 authorities was present in Trafford for the launch. In the Midlands I did a couple, separately, as did a couple of other board members. The idea of getting them to do it together was an absolute nonsense. The reality is that working together has not worked in the West Midlands, mainly because of the attitude of the biggest authority. It is the biggest by far. I will not go over the statistics; I put them in a paper to Sir Bob. There is more inequality of size among those councils than anywhere else.
So to the order. Like my noble friend, I have always supported annual local government elections, for a variety of reasons, some to do with governance and some party reasons. That has been the reality. These no longer apply in Birmingham. I think that change to all-out elections should be embraced—there is no doubt about it whatever.
Single-member wards will be new, but they should be grasped as a positive advantage. The Kerslake review makes it clear that it will be a better system, but there is a phrase in the review that concerns me. It talks about “mainly single-member wards”. The one thing that I would oppose is wards with different numbers of members. I know that this occurs around the country; I am always gobsmacked when I go to various local authorities and I find out there are one-member, two-member and three-member wards in the same authority. I cannot comprehend that. They should all be the same. I know that the Boundary Commission will deal with the details, but I hope that it has not got carte blanche. As far as I am concerned its job is to implement Kerslake, taking account of the practicalities at ground level. I hope that it does not mix the wards.
I think that the total number of wards should be an odd number—I have often wondered why it has generally been an even number. It is not a problem in Birmingham because there has been a written, almost legal agreement for about 40 years about the mayor. We got rid of all that nonsense about not taking the mayor if there is a split because you lose your majority. We have a sensible, written legal agreement between the three parties that has lasted since it was created, probably the best part of 30 or 40 years ago.
I would settle for 101 wards—or a maximum of 105. I do not think that it should be the same as the present number. I know that, looking at the arithmetic, there is a problem with that, but in my view it should be less than the present number. If there are going to be single-member wards, there is an opportunity for there to be very little variation—I would say plus or minus 4% as a maximum so that they are as near as possible the same size. At the moment, they are not; there are examples of massive disparity in the city because the last boundary review was a long time ago.
The population would be about 10,000. Funnily enough, the place that I have just come from, Castle Vale, has a population of exactly 10,000 and the electorate is about 6,500. It has its own postcode. The regeneration area that people have driven past along the M6 has been very successful. Thirty-two out of the 34 tower blocks have come down. Now, people queue up to live there rather than not wanting to be sent there, as was the case with my constituents and those of my late friend Lord Corbett.
I have one suggestion, which is that an attempt should be made—I am not sure by whom—to deal with what I think is the recurring theme throughout Kerslake. As I said, I am an outsider and I have not discussed this with any MPs, although in December I picked up vibrations among some of my friends on the council. They thought, “Oh, nothing’s going to happen with Kerslake until after May”. I told Mr Pickles in December that he had better get on with it because the view was that nothing was going to happen. This is a really serious issue and it should be dealt with urgently.
The recurring theme throughout Kerslake—it is recommended reading in relation to governance; it is not a massively long report—is the blurring of roles between councillors and officers. I was gobsmacked when I read the examples in the report. There is a complete lack of training opportunities for elected members. It seems to me crucial that councillors—a bit like Ministers, in a way—understand the difference between governance and management. It is fundamental that there is no blurring of the roles but, sadly, according to Kerslake, that seems to apply to some officers as well. That has grown up because of their culture. Kerslake says that the culture has to change, and that would be pretty radical. Although this is not my preferred solution, I think that the one that he has come up with is just as good in forcing a radical rethink and change: all-out elections and single-member wards. For councillors, it will be a completely new way of working.
The present culture is three-member wards, and changing will not be easy because not all wards are of the same political party. The idea that the councillors will divide the ward up among themselves is wrong; they will not. They will stand for election in the whole ward. In wards in my former constituency there was sometimes a lonely Labour councillor or a lonely Lib Dem councillor. They had the whole 20,000-odd electorate—the population was about 30,000—so the wards were quite large.
Therefore, single-member wards will be different. I do not think—no, I shall be positive about this rather than say, “I do not think”. I think that before anyone is allowed to be a candidate, they should have been on a governance training programme run by an independent body, such as a business school, a university or training specialists in government—but preferably not the Local Government Association, where there is too much of a vested interest.
The political parties really ought to embrace this. We are obviously not going to hear the views of the noble Lord, Lord Whitby, but I think that all the parties should embrace this. I am not seeking a qualification for anyone who stands for election, as that could be risky, but the public are entitled to know that those who are elected understand what their role is—and, more to the point, what it is not. That was the message that I took from Kerslake, and it explained to me why a lot of the negative issues for the city have arisen.
I am not going to go over any particular details, but when I saw how bad this blurring of the roles of governance and management was, I could think of examples where I thought, “Oh, that must be the reason why so and so happened”. This is a serious matter, in the largest local authority in the country. We know it has happened in others, because we have read about some recent examples, particularly in the north, but the fact is that it should not happen anywhere. There should be procedures to stop it happening, whether by the chief executive or other people in local government.
We have an opportunity here. There is the Boundary Commission and, of course, Birmingham currently has a council oversight board as a result of Sir Bob’s report, which is made up of the great and good. They all look very qualified people, they have not been sent up from London and they have experience of local government, at officer, chief executive and councillor level. I have faith in them, but they will have to look at the situation in 12 months’ time, when they will expect to see cultural change. One of the ways the parties could show that they are up for cultural change is by doing something about the most serious deficit that Kerslake identified, which is the blurring of the roles of councillors and officers. I support the order.
My Lords, I thank my noble friend Lord Hunt for the measured way in which he introduced his take-note Motion. I recognise his knowledge of and attachment to the City of Birmingham. I also thank my noble friend Lord Rooker for his contribution.
We on the Front Bench support the order as it stands. My noble friend Lord Rooker raised some fascinating issues—the same ones that Kerslake raised—about how Birmingham City Council used to be a leader and has lost its way. My noble friend Lord Hunt recognised that as well. The issue of the city being too big was touched on in the report but the conclusion was not to change those matters, certainly for the time being. My noble friends had a different emphasis, as I shall put it, on whether an election by thirds or an all-in, all-out election is the most appropriate. I am bound to say that we on Luton Council changed to an all-in, all-out system in 1976. We supported it then and have supported it since, even though, politically, we have always caught the bad years and ended up in opposition. Thankfully, that has changed, but it is a consequence: you cannot have all the benefits of it.
As for wards which have a different number of members, again in Luton we have two-member wards and three-member wards. Frankly, it works perfectly well and I do not know what the problem is with having that system. My noble friends Lord Rooker and Lord Hunt focused on this issue of the blurring of roles between councillors and officers, which we accept is a significant issue. I suspect it may have got worse for those councils that have an executive-type arrangement, which I think lends itself more naturally to that blurring. It is important to guard against that.
The instrument before us today moves away from councillor elections for Birmingham City Council being in thirds to all-out elections every four years. This was to commence in 2017 but, as my noble friend Lord Hunt pointed out, it has been put back one year. I join with my noble friend in seeking a proper explanation of that change. There is speculation that it was a recognition of the complexity associated with the reorganisation of the council and that longer would need to be provided for the Boundary Commission changes to be put in place. Perhaps the Minister can use this opportunity to clarify matters.
The proposed change came about of course as a consequence of the Kerslake review, which we have heard about. Sir Bob Kerslake was asked last year to lead a review of the governance and organisational capabilities of the city council. The review was conducted on the principles of an LGA peer challenge model and looked at five factors critical to council performance and improvement. These were: effective political and managerial leadership working in partnership; an understanding of the local context and a shared long-term vision for the future, with a clear set of priorities; effective governance and decision-making arrangements that respond to challenges and manage change, transformation and disinvestment; organisational capacity and resources focused in the right areas in order to deliver the agreed priorities, including a workforce that understands the priorities and supports their delivery; and a financial plan in place to ensure long-term viability.
The Kerslake report was clear in recognising the strengths and potential of Birmingham to be an economic powerhouse alongside London, but it was also clear that for the city to succeed Birmingham City Council had to change. The report listed a raft of areas where there is the need for change. I will highlight just a few of them. It said:
“The council must act now to address its significant challenges. Like all local authorities, it must rethink its role and the way it does business with its partners and those it serves, including its relationship with the city’s residents. But there are some issues that are particular to Birmingham City Council. Some of its services are not good enough, such as children’s services”—
which we have heard about—
“and there is dissatisfaction with others, such as waste management. If the financial challenge is to be met the council needs to begin a different conversation with the people it represents”.
On other matters, the report says:
“Birmingham City Council’s size acts as both a badge and a barrier: it has led to a not invented here, silo based and council knows best culture. These characteristics are not an inescapable feature of Birmingham City Council’s size but they need to be acknowledged and addressed. There is much to learn here from other large authorities”.
It says that,
“there is a blurring of roles between members and officers. The relationship needs to be reset and officers given the space to manage”—
an issue we have touched upon—and that,
“the council’s vision for the future of the city is neither broadly shared nor understood by the council’s officers, partners or residents”.
We accept this analysis and understand that my noble friend Lord Hunt does as well.
As for the report’s recommendations, we accept these as well, especially the focus on resetting the governance arrangements, and of course recommendation 4 concerning the electoral cycle and the Boundary Commission. These proposed changes are far-reaching but, we suggest, necessary. Recommendation 4 says:
“The Secretary of State should move Birmingham City Council to all out elections replacing the current election by thirds. In the interest of effective and convenient local government the Local Government Boundary Commission for England should conduct an Electoral Review, that reflects existing communities, to help the council produce an effective model for representative governance. It should aim to complete its work to enable elections by May 2017”—
now 2018, we understand.
My noble friend Lord Hunt is right to seek assurance that the challenges identified by Kerslake and the actions required are not being distracted by electoral processes—I think that was the key argument that my noble friend made. But the recommended switch from elections in thirds to all-in, all-out elections every four years is surely an integral part of the change that is necessary. In particular, the report highlights the problem of a culture of short-termism, referring to,
“an inability to focus on longer term problems, including transforming services”,
and suggests that,
“changing the electoral cycle to all out elections can have a significant impact on a council’s ability to change and adapt, provide stability in decision making and aid long term planning and vision”.
We agree with that, as do the Government, I think. We consider that the regulations should proceed and I hope my noble friend will be comforted in this regard by the debate and the understanding of the issues that he has raised.
My Lords, I thank the noble Lord, Lord Hunt, for tabling the Motion. It is important that, in the—albeit brief—debate that we have just had, your Lordships’ House reviewed and discussed the important issue of the Kerslake report. I join other noble Lords in recognising the sterling work done by Sir Bob Kerslake in the review of Birmingham, and look forward to welcoming him to your Lordships’ House. He and his team have clearly shown that Birmingham—both the city and the council—are some way from fulfilling their full potential, and indeed their past potential, which noble Lords talked about. The challenges they face are deep-rooted and there are serious problems that they need to face up to, such as an underperforming economy, poor local services in certain respects and no credible plans to address the council’s very significant budget difficulties. That England’s second city faces such challenges is something that should concern us all. I am therefore extremely grateful to the noble Lord, Lord Hunt.
I apologise to the noble Lord, Lord Hunt. I was seeking to meet him in advance of this debate and perhaps speak to him on Sunday. However, being a father of three and it being Mothering Sunday, I was under strict orders not to look at the phone in the key hours of the day. I apologise that we were unable to talk earlier.
I recognise and share many of the concerns that the noble Lord, Lord Hunt, has expressed. Indeed, I found myself in total agreement with the speech of the noble Lord, Lord Rooker. In particular, I listened with great attention to his description of the Labour Party conference. Not having attended one myself, I bow to his view of how the plenary, and indeed the fringe, sessions proceed. Nevertheless, I thank all noble Lords, and the noble Lord, Lord McKenzie, and Her Majesty’s Opposition, for their support for this order. It is important that we come together in ensuring that the great city of Birmingham realises its full potential.
We believe that the change to the election cycle in the city of Birmingham is critical to securing the fundamental reforms that the city needs. The current pattern of elections by thirds has not helped Birmingham’s ability to take strategic decisions. There is, as we all recognise, an inability to focus on the longer-term problems that are holding the council back, including transforming services. When we are children, we are often told not to do things by halves—or by thirds, in this case—so perhaps a move to whole-council elections will give the council the impetus that it needs. It will give a four-year stable mandate and facilitate the strategic decision-making that we all desire. It will enable the council more effectively to take those longer-term decisions and forge a strategic and long-term vision for the future and the city as a whole.
The approach of moving councils where reform is imperative to holding whole-council elections is not unprecedented. The previous Labour Government did this in the case of Stoke-on-Trent and we have done this for Doncaster Metropolitan Borough Council, where the first full-council elections will take place in May this year. More generally, the Government are on public record as recognising the benefits of whole-council elections every four years. In our White Paper response to my noble friend Lord Heseltine’s report on promoting economic growth, No Stone Unturned: In Pursuit of Growth, we said that,
“the Government welcomes the adoption anywhere of four-yearly whole council elections”,
while recognising that this was generally a matter for local choice.
The noble Lords, Lord McKenzie and Lord Hunt, raised the issue of the order being made so quickly. I recognise that, following the publication of Sir Bob’s report, matters have moved swiftly and continue to do so. I take this opportunity to apologise to the noble Lord, Lord Hunt, for not alerting him earlier to the further order, which we laid on Friday, which will shift the date for the first whole-council elections from May 2017, as recommended by Sir Bob Kerslake, to May 2018. I shall explain both why we are moving so quickly and why we have changed the start date.
First, as the noble Lord, Lord Hunt, recognises, the situation in Birmingham is serious. Indeed, all noble Lords who took part in the debate made that point. Fundamental reform is essential and needs to be driven forward as quickly as possible. We quickly established the Birmingham independent improvement panel, led by Sir John Crabtree, a highly respected figure in the city whose lifelong commitment to the well-being of Birmingham is known to all. The panel’s role is to provide challenge and advice to the council as it follows its improvement journey in response to the Kerslake report. The council quickly set to work to draw up an action plan to implement the Kerslake recommendations made to it and is now seeking to finalise this, working closely with the improvement panel.
Along with recommending a change to whole-council elections, the Kerslake report recommended that the Local Government Boundary Commission for England undertake an electoral review. The aim of this review, when linked with a move to whole-council elections, is to move the council away from having three-member wards and to enable there to be a smaller council. Such a council, with many single-member wards, will be better able both to represent local people and more effectively to take the tough decisions needed to address the challenges that Birmingham faces. The boundary commission has already started its work. Before it can get to grips with its review, it needs certainty about the pattern of elections that the council will hold, hence the urgent need for any order changing the pattern of elections to be made as soon as practicable.
That is what we did. We made the order on 21 January; we laid it before Parliament on the 22 January; and it came into force on 16 February. It implemented fully the Kerslake recommendations, including the start date recommended by the report. We knew that this report had been prepared following many meetings with residents, business leaders, community and faith leaders, the voluntary and community sector, local politicians, council officers, front-line staff, and representatives of other public services. The review heard the views of more than 350 people and received 80 submissions of written evidence.
However, with the order having been made, some suggested that 2018 would be a better year in which to hold the first whole-council elections. This is because Birmingham, like the other West Midlands authorities, would then continue to have no local elections in 2017, 2021 and so on. It would also avoid councillors being elected for just a one-year term, which would be the case for those elected in 2016 if the first whole-council elections were in May 2017. Our sole aim is to do what is best for Birmingham. We have been persuaded that a 2018 start date is on balance better than the 2017 start date, even though it means that a renewed council with a clear four-year mandate will not be in place until one year later.
I assure noble Lords that I fully take on board the points that have been made during this debate. In particular, the noble Lord, Lord Rooker, talked about the importance of training for officers and councillors. That is a very important point to reflect on, because, too often, people put themselves forward for office without perhaps fully understanding the nature of their role and its importance in decision-making.
The noble Lord, Lord Rooker, drew an important distinction between the roles of elected members and officers. Training and the renewal of such training are important not just in Birmingham but around the country.
I am confident that these orders provide a firm foundation for the many changes that are needed in Birmingham—challenges that I know the noble Lord, Lord Hunt, knows only too well. There is an overwhelming consensus that the council cannot carry on any longer as it is. The issues are deeply rooted and will not change overnight, but a start needs to be made now. This order is part of the start and I commend it to the House.
My Lords, I am grateful to the Minister and my noble friends Lord Rooker and Lord McKenzie. I will not speak for any length of time; I want to make four brief points.
First, I endorse what my noble friend Lord Rooker said. Going back to Victorian days and over many decades, Birmingham led the way as a strong exponent of what local government could be. The sanitation improvements, the housing improvements and the Chamberlain improvements showed what a vigorous, confident city could do to improve the lot of its citizens, and it is clear that that is what we want to get back to.
Secondly, my noble friend is also right that, at some point, we have to face up to the “greater Birmingham” issue. The relationship between Birmingham and the other boroughs in the West Midlands is not what it should be. We cannot take advantage of what we see as a great pendulum swing back to local government and autonomy unless that relationship is sorted out. I agree with my noble friend on his point about Birmingham and the boroughs. In the end, that will be resolved only if Birmingham gives confidence to the other boroughs that a partnership can truly be created.
Thirdly, the roles between councillors and officers are crucial. All I will say is that I hope that the panel that has now been established to help and challenge the city council will focus on governance, relationships and culture. That seems to be where a huge amount of work needs to be done.
Finally, I listened with care to the Minister’s argument and, of course, I support the order. However, I worry that for three years the council will be inwardly focused on boundary commission reviews, new wards, selection and then election. I hope that the noble Lord’s department, in its relationship with the city council and the panel, will do everything it can to ensure that the eyes of the leadership and all those involved with the city council are focused as much as possible on the job in hand: improving service to the people of Birmingham rather than, as I fear, worrying about the boundary review. I was not encouraged by the intervention of the chairman of the Local Government Boundary Commission for England over the past few days. It seemed that he tried to embark on a sort of city-wide debate in terms of boundaries and wards. That is the last thing we need to worry about at the moment. The job in hand is improving Birmingham’s services. Having said that, I beg to move my Motion.
Health: Deprivation of Liberty Safeguards
Question for Short Debate
My Lords, I am most grateful to the House for allowing this debate to occur at the end of the day today. It relates to the so-called Cheshire West judgment of 19 March 2014 and its impact on healthcare. The background to that judgment was most eloquently laid out by my noble and learned friend Lord Brown of Eaton-under-Heywood in the debate on the Mental Capacity Act 2005 that we had last week on 10 March.
In the judgment itself, the noble and learned Baroness, Lady Hale, said:
“This case is about the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised”.
I will cover briefly why it was felt necessary to clarify the issue. There appear to have been relatively few authorisations under the deprivation of liberty safeguards: in 2009-10 there were 7,157 and in 2012-13 there were 11,887. The noble and learned Baroness went on to say that,
“it would not be at all surprising if those arranging for the care of people with severe learning disabilities were reluctant to see those arrangements, made in what they think are the best interests of the people concerned, as also depriving them of their liberty”.
In response to the question of whether the deprivation of liberty is the same for all people, the noble and learned Baroness also said that,
“the whole point about human rights is their universal character”.
Indeed, the state of liberty—as defined by the noble and learned Lord, Lord Kerr of Tonaghmore, as,
“the state or condition of being free from external constraint”—
should therefore apply to everyone, irrespective of their disability of any sort. The Supreme Court laid down an acid test of circumstances that are likely to amount to a deprivation of liberty: namely, that the person is under continuous supervision and control, is not free to leave and lacks capacity to consent to these arrangements.
The important conclusions from this judgment are, first, that living arrangements amounting to a deprivation of liberty for a non-disabled person are a deprivation of liberty for a disabled person. In other words, there is parity. Secondly, if a person in a supported living arrangement in the community, care home or hospital setting is under continuous supervision and control, and is not free to leave, their liberty is deprived no matter the reason for the confinement. Thirdly, the person’s compliance or lack of objection is immaterial. Fourthly, periodic checks need to be in place to ensure that any legal justification for such confinement remains in place.
The judgment is clearly written, but it has had wide impact, which is what I want to address. The cost to councils arising from the changes as outlined in the judgment is estimated to have increased by more than £98 million—from the £35.2 million available in 2014-15. That is the estimate from the Local Government Association and the Association of Directors of Adult Social Services. There were 13,000 DoLS applications in 2013-14. Following the judgment, there have already been 86,500. Given this pressure, I ask the Minister: are the decisions made by assessors being scrutinised to ensure that hasty decisions are not made in the context of what is effectively a massive increase in demand?
There has been a reduction in the forms relating to DoLS, which have gone from 42 pages down to 13, and a streamlined process for applications was introduced by the Court of Protection to help cope with the increased demand. However, have families and advocates been asked for their views on the forms and how they are working for individuals?
As a result of the judgment, there has been a significant increase in the circumstances in which deprivation can be seen to take place, such as in hospice care, intensive care units and ambulance transfers, to give just some examples. In many circumstances, there is confusion for healthcare professionals about what amounts to a deprivation of liberty. It appears to be leading to a defensive and bureaucratic mindset, with a risk of stigmatising the care and those being cared for. As a recent paper on ethics and law pointed out:
“The acid test framed by the Supreme Court was not decided in the intensive care setting. However, the concept of a deprivation of liberty is not context-specific, so is capable in principle of applying in this setting. Due to their circumstances, most patients in intensive care units would seemingly fit the ‘acid test’ criteria, and it could therefore be construed that we are depriving them of their liberty. This is supported by a recent case (published 28 August 2014), in which a judge applied the Cheshire West acid test to a maternity unit in a general hospital”.
Can the Minister help to define the scope of the implications of the Cheshire West judgment and say whether it is seen to be appropriate to interpret the implications so widely?
There has been little guidance for families and healthcare staff about how to respond to the judgment. Perhaps I may quote from the experience of a hospice consultant, who has asked to remain nameless but said that:
“The organisation that manages the hospice has become very legalistic and is suggesting that we need to complete a DOLS application for all patients who become unconscious at the end of life—arguing that they have lost capacity and therefore are subject to a DOLS. This causes distress to families and delays the issue of death certificates as the death has to be referred to the Coroner and they hold a ‘desk inquest’ and issue the certificate, but maybe after 2-3 days delay”.
Other hospices have also expressed rising concerns, saying that they have felt impelled to apply for DoLS assessments for all dying people.
A very helpful and detailed letter, of 14 January this year, written to the DoLS leads in local authorities and the NHS by Niall Fry, the MCA DoLS policy lead at the Department of Health, addresses the situation of hospice patients. The letter said that,
“if a person receiving palliative care has the capacity to consent to the arrangements for their care and does consent, then there is no deprivation of liberty. Furthermore, if the person has capacity to consent to the arrangements for their care at the time of their admission or at a time before losing capacity, and does consent, the Department considers this consent to cover the period until death and that hence there is no deprivation of liberty”.
The letter also outlines that “continuous control and supervision” needs to be differentiated from a normal care situation, when you would of course expect there to be close monitoring of a patient and indeed, possibly close supervision, particularly of a very vulnerable person on a ventilator, for example.
The guidance letter is not clear on whether the consent referred to must be in writing, the level of particularity required, nor the extent to which advance statements of wishes, lasting power of attorney or advance refusals of treatment may be sufficient to indicate consent, particularly in relation to their timeliness. The guidance is from the Department of Health but, unlike the Supreme Court judgment, it does not, of course, have legal force, which results in further difficulties and confusion.
A practical issue is the inconsistent interpretation of what may constitute a deprivation of liberty, leading to variations in practice, confusion for hospices and other providers, and distress for patients, families and carers. Hospice stays are on average 13 days across England. As a process of applying for a standard authorisation often takes much longer than the average stay, this means that patients are often discharged or have died mid-process. This can distract staff away from care. The DoLS application may not be completed before the patient dies, and the process causes potential trauma for the family. It does not appear to increase care quality.
Hospices can use urgent authorisations at the time of applying normally, but an urgent authorisation lasts for a maximum of seven days. If that is granted but expires, there is a gap until a formal application is processed. Given our inability to predict life expectancy accurately, even at such a short time, the urgent authorisation frequently expires. As an application for DoLS is setting specific, for a patient transferred to a hospice in-patient unit with a DoLS authorisation in another setting, such as a hospital, the process has to start again. Although it should be started prior to transfer, this can now result in delayed transfers.
What is the position of a patient who requires a home-care package and whose discharge for that home-care support is delayed because the care package cannot be put in place? Are these delayed discharges depriving patients of their liberty if they want to go home and have any impairment of capacity and are not taking their own discharge? It seems that the Law Commission review is urgent. Given that the earliest that draft legislation can be laid is summer 2017, I ask the Minister: is there a need for a test case to appeal to the Supreme Court against the West Cheshire judgment and its implications for hospices and other healthcare settings? If so, who should do this and how would it be funded? On what basis would a test case be brought?
My Lords, it is customary on these occasions to congratulate the first speaker on having obtained the debate to which we are privileged to listen. However, I think that it might also be right on this occasion to commiserate with the noble Baroness, Lady Finlay, partly because of the small number of noble Lords who have put down their names to speak but also because, in a way, much of the force of what was to be discussed was taken away by the debate to which she referred, which took place on 10 March, last week. There were 10 speeches on that occasion, including a speech by the noble Baroness herself, a speech by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and a speech by the noble Baroness, Lady Hollins, who I am glad to see in her place. The noble and learned Lord, Lord Brown, indicated to me earlier that he thought he would be unable to be present this evening, although I see that he is in his place just now, for a while at least.
As the debate today is directed to the decision of the Supreme Court in the Cheshire West case, I felt that I should step into the breach and put down my name, but I emphasise that I have no expertise in mental health law, nor do I have any knowledge of the operation in practice of applications for authorisation under Section 16 of the 2005 Act or the deprivation of liberty procedures under Schedule 1A for those detained in hospitals and care homes. Given those shortcomings, I felt it might be helpful if I said a few things about the judgment itself, about the test which it lays down and, as far as I can, on what is to be done about the case, although I am not sure that I can answer all the questions in the noble Baroness’s exam paper which she set before us a few moments ago.
The judgment itself is very interesting from the juridical point of view because it is one of those rare examples of the court going further than the Strasbourg court has done. There is a great deal of debate about the relationship between the United Kingdom courts and the Strasbourg court, and most of those debates concentrate on the other side of the coin, which is giving effect to or following Strasbourg, when people say that we should be more robust and not do so. This is a quite different thing. This is stretching the application of the convention rights beyond what Strasbourg has thought it right to do and has yet had to consider by cases that have come before it. There are some who point out that that gives enormous power to the judges to, in effect, create law. This is perhaps an example of that. I am not criticising the court for doing that, but it is an interesting example of a rather unusual situation.
It was a majority decision of four to three—a borderline decision, as the noble and learned Lord, Lord Brown, said, but a decision it was. I entirely agree with the noble and learned Lord that it is not for us to say how we would have resolved it. We take the decision as it stands. It is worth recording that the noble and learned Baroness, Lady Hale, who wrote the leading judgment for the majority, was without doubt the best qualified of all judges to express an opinion on the subject. She has made a study of mental health law over many years and is the author of a leading textbook on the subject. She is also pre-eminent among our judges in her understanding of human rights law. The issue could not have been in better hands so far as the law was concerned.
It is a feature of that case, however—it happens from time to time when one looks at decisions taken by judges—that they were not concerned with the practical implications of their judgment. They may give guidance, but it is not their responsibility to see how that would be done, what it would cost or what has to be done to give effect to it. In a sense, that is their luxury. Their task is to say what the law is. The matter is then passed to the Executive—the Government—to find the money and give effect to what the law requires. That is where we are now.
There are questions, of course, as to what the law as laid down in the judgment requires. The essential point, which the noble Baroness, Lady Finlay, mentioned, is that the situations do not enable one to distinguish between people of sound mind and those of unsound mind. Human rights are the same for everyone. The word “everyone” appears repeatedly throughout the European convention. There is a difference between a mere restriction and a deprivation of liberty. It is a question of fact and degree. Of course it depends on the situation of the person concerned. The situation where a person is detained on the authority of the state in a hospital or a care home really does not give rise to any problem, because it is obvious that that is a deprivation of liberty. In that case, the DoL procedures must be applied.
The difficult cases are those with which the judgment was especially concerned: people of unsound mind in benign situations with foster parents in a home setting, on the one hand, so that they can lead as normal lives as possible, or with live-in carers, on the other, for the same reason. Addressing that issue, the noble and learned Baroness, Lady Hale, said that the concept of physical liberty is the same for them as for anyone else, regardless of their mental or physical disability. The right at issue is a right not to be deprived of that physical liberty—whether that person is free or not free to come and go as he or she pleases. Where a person is by reason of an action taken by the state—I emphasise that we are talking about state interventions, not interventions by parents exercising their ordinary parental responsibilities—the question is whether that situation is one where they can properly be said to be deprived of their liberty. That is so however benign the environment they are in and irrespective of whether they actually want to break loose and leave the situation on their own initiative. As the noble and learned Baroness, Lady Hale, put it in paragraph 56,
“it is the constraints that matter”.
However, the question is still left in the air as to how far this judgment goes. The noble and learned Lord, Lord Brown, addressed that issue in his speech last Tuesday. He said:
“It can fairly be said that the facts of those three cases represent about the furthermost examples of what the English courts …would conclude involves a deprivation of liberty”.—[Official Report, 10/3/15; col. 632.]
When one considers the nature of the places where those concerned were living, the noble and learned Lord must be right about that. Indeed, he also said that the borderline between restriction and deprivation of liberty is quite a narrow one. Those cases lay at the extreme limits.
The facts will vary from case to case, and one has to face the situation that the facts of those two cases must not be taken as definitive. Indeed, when the noble and learned Baroness, Lady Hale, was writing about this she said that we should err on the side of caution in dealing with the situation of people of extreme vulnerability. It is quite striking that she rejected an invitation to lay down an acid test for the deprivation of liberty. What she did instead was to set out certain things that are not relevant. For example, the person’s lack of objection is not relevant. The normality of the situation in which they are placed is not relevant. The reason or purpose behind a particular placement is not relevant. But what we do not find in the judgment is an answer to the kind of questions that, understandably, the noble Baroness is raising as to where exactly the line should be drawn.
The noble and learned Lord, Lord Brown, did venture on this point, too, but I am not sure that I agree entirely with what he said. He made a distinction between long-term placements of unsound mind and situations in which people are placed that are the result of a terminal or emergency situation. I can agree with him about terminal situations and emergency situations, because the timeframe is necessarily short, but I am a little uneasy about the phrase “long-term placements”, which was a point addressed by the noble Baroness. One could have situations that are meant to be temporary but involve the deprivation of liberty. They may be quite short term—a matter of two or three weeks or a month or so. In those cases, it looks as though, if there is a deprivation of liberty, the procedures must be applied. That illustrates the problem pointed to by the noble and learned Baroness, Lady Hale, about trying to draw any kind of precise line to be able to say when a situation is caught and when it is not. Each case must be taken on its own facts.
The question then is what needs to be done. I recognise that there are limits to what the Minister can say in the dying days of this Parliament. He cannot commit very many people to what can be done in the next two or three weeks. But one or two points may be made and he may be in a position to say something about them. The first is in relation to the Government’s reaction to the Select Committee report, which was mentioned by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. The paragraphs that are relevant in that response are paragraphs 7.26, 7.27 and 7.31. I will not read them out because they are available to everyone. But the Government get full marks for accepting that there is a pressing area that needs attention in the matter of community care arrangements of the kind involved in the case of Cheshire West. There is a pressing need here and a new legal framework needs to be designed in order to deal with that problem.
The difficulty I have is that the solution that has been adopted is to ask the Law Commission to undertake a review. It is recognised in paragraph 7.27 that this work will not complete for a few years. That seems to come close to kicking the matter into the long grass. I quite see that one wants some kind of informed approach to this issue but to look at dealing with it in terms of years rather than doing so in the relatively short term seems to be rather unfortunate. Surely something could be done more immediately. The point is raised in a paper on the impact of the judgment circulated by the Local Government Association, which draws attention to the increasing burden on councils which are already concerned about the affordability of the Care Act and calls on the Government to commit fully to funding all the burdens that rest upon them. The association also calls for a change in the law for people lacking capacity who need supervision and need to be in supported living environments. It wants action to be taken in the short term in various respects to enable the matter to be addressed.
The noble and learned Lord, Lord Brown, made the same point at the end of his speech last week and I endorse exactly what he said. Can the Minister explain a little more whether any thought is being given to addressing these problems as a matter of urgency rather than waiting for a matter of years for the Law Commission to report and no doubt further years after that for further legislation to be introduced?
My Lords, I support the noble Baroness, Lady Finlay, and declare my interest as the chair of Hospice UK.
In view of the limited time available to me, I shall bite my tongue hard and resist the temptation to comment on what the noble and learned Lord, Lord Hope, referred to as the juridical aspect of the problem that faces us and concentrate on what I think will be of most help to my noble friend the Minister when he considers the need for urgent action to deal with the issues to which the decision of the Supreme Court, and the legislation which lay behind it, have given rise. I entirely agree with what the noble and learned Lord, Lord Hope, said in that regard. Therefore, I shall concentrate on specific examples of difficulties which hospices have faced.
The first concerns a hospice that instigated an urgent deprivation of liberty application and applied for a standard authorisation. The urgent deprivation of liberty was put in place for seven days. On the sixth day, the social services DoLS team had made no contact, so the hospice contacted it for advice on how to proceed as the urgent deprivation was due to expire the next day. The team asked the hospice to implement an extension to the urgent deprivation for a further seven days, as they had a backlog of referrals and no best interest assessors available, which the hospice did. Six days later, still nobody had been to assess the patient, so the hospice contacted the DoLS team again and asked what it should do. The team confirmed they had a backlog of applications and would not be able to assess the patient prior to the urgent deprivation of liberty expiring, and explained that there was nothing else the hospice could do as it had done all that it was legally required to do. The hospice raised its concerns that this meant that it would be depriving a patient of their liberty without the appropriate authorisation and confirmed that it would be contacting the Care Quality Commission. The DoLS team agreed that the situation was not acceptable, but confirmed that there was still nothing it could do.
I give another example from another hospice which had a patient transferred from its local hospital who had metastatic cancer and had suffered a stroke. He was not responding or understanding when he was admitted, but did not appear to be in the last days of life. An urgent application and standard application for DoLS were made. An assessor came to see him from the local authority who seemed at a complete loss as to why she was there and what she was supposed to do. The patient died three days later.
A hospice has provided a series of examples of the kind of situations with which it is confronted. The first example is:
“An actively dying hospice in-patient placed on a Palliative Care Plan, who has lost capacity/consciousness, and is receiving sedative medication to manage symptoms of their terminal phase”.
The second example is:
“The delirious hospice in-patient who is receiving medication or support to manage this state”.
The third is:
“The wandering cognitively impaired patient at risk of falls (in an in-patient or day care setting) who has a nurse call system that activates when the patient starts wandering in order to alert nursing staff to return the patient to their area of care”.
These are all very specific examples of the problems that hospices now face on a daily basis as a result of the situation that has arisen.
Reference was made in an earlier debate in your Lordships’ House today to the unintended consequences of legislation. I submit that it is impossible to come across a better or, indeed, worse example of the unintended consequences of legislation than the situation in which we find ourselves. I suspect that it can ultimately be resolved only by fresh legislation; but at least, when one contemplates the prospects for such legislation, it ought to be free of party political difference, so there ought to be not a great deal of difficulty in building a consensus. I am not sure that it is necessary—the noble and learned Lord, Lord Hope, suggested that it is not necessary—to await the Law Commission’s recommendations. Perhaps it can be asked to expedite its work, but the problem is urgent and I urge the Minister to take urgent action to resolve it.
My Lords, I should like to reflect on how we have reached this point by looking briefly at two cases. First is the 1997 Bournewood case, which is why we have the deprivation of liberty safeguards in the first place.
Henry—we do not know his real name—is a man with severe autism and learning disability. He cannot communicate verbally but can make his needs known to those who know him. As with most people with autism, structure, routine and predictability are very important to him. However, on the day in question, he did not have his usual driver for his day centre visit. The driver went a different route, picked up different people, and Henry became increasingly upset. By the time he reached the day centre, he was frustrated and angry, was harming himself and hitting out at other people. The day centre staff therefore rang for specialist advice and were advised to admit him to hospital immediately, where he was detained for his own safety. When his foster parents visited him, he became upset and wanted to go home with them. However, this increased his harmful behaviour and the doctor asked them not to visit any more, saying that it was in his best interests not to see them. They started a legal campaign and, after five months, Henry went home. They then took the case to court, arguing that he had been illegally detained. Eventually, after seven years and hundreds of thousands of pounds in costs, the European Court of Human Rights ruled that Henry had been illegally deprived of his liberty, in contravention of Article 5 of the European Convention on Human Rights—and so the Mental Capacity Act and DoLS were born.
Currently, if a person without capacity does not meet the criteria to be admitted to hospital under the provisions of the Mental Health Act, an application for a DoLS authorisation may be made. In fact, Henry’s psychiatrist said that she could have detained him under the Mental Health Act and, paradoxically, he would not therefore have been eligible for DoLS.
Let us compare Henry’s story to the case of Stephen Neary. He, too, has autism and a learning disability, although he is able to communicate verbally. He lived at home with his father and had constant adult supervision. However, his father became unwell and exhausted and, in 2009, agreed to Stephen being admitted temporarily for respite. When he went to fetch his son he was prevented from doing so. The professionals argued that they had concerns about Stephen’s weight and behaviour, and he was detained under DoLS. For a year Mr Neary fought a legal battle to get his son home. Neither he nor his son were eligible for legal aid but fortunately Mr Neary was able to do this. There was no automatic tribunal, no means of legal challenge other than through the High Court and ultimately damages were paid because it was found that the council had not acted lawfully in depriving Stephen Neary of his liberty.
The post-legislative scrutiny committee of which I was a member found the Mental Capacity Act unfit for purpose with respect to DoLS. The code of practice has not been updated since it was first published and does not take into account significant changes resulting from case law, including the Supreme Court’s March 2014 judgment. Since the Cheshire West case many more people are being referred and the system is completely clogged up. In one authority 2,000 cases are awaiting standard authorisations—a year on from the judgment and no safeguards in place. The legal framework is complex, expensive and confusing for clinicians, who may fear that they are not up to date with the latest case law. The BMA told the Select Committee that its concern with the DoLS is its complexity and bureaucracy.
Does the Minister agree that simplifying and streamlining the safeguarding arrangements are a matter of urgency? They must, however, be considered alongside the service redesign taking place in the care of people with learning disability and challenging behaviour. The Government are trying to increase the speed of discharges but because of inadequate community support these delayed authorisations are quite literally causing paralysis in the system. I agree with the suggestion from my noble friend Lady Finlay that perhaps further case law is needed to clarify the situation.
My Lords, I congratulate the noble Baroness, Lady Finlay of Llandaff, on securing this short debate and on her excellent speech on the issues of deprivation of liberty safeguards and healthcare, particularly in respect of hospices and homecare support. I also congratulate the noble and learned Lord, Lord Hope, the noble Baroness, Lady Hollins, and the noble Lord, Lord Howard, on their very wise and detailed contributions, particularly around hospice care. This debate effectively complements the debate last week on the excellent Select Committee report on the Mental Capacity Act 2005, when the noble Baroness, Lady Finlay, rightly stated that the laudable principles of the Act have clearly not been realised as was hoped.
The House of Lords Select Committee made nine recommendations that related to deprivation of liberty and the Government responded to them in June 2014. I will return to one or two of them shortly but I want to concentrate in the limited time available on some of the consequences of the Supreme Court judgment. In March 2014 the UK Supreme Court handed down two judgments, which are commonly known as the Cheshire West judgment. As the noble and learned Lord, Lord Hope, has eloquently explained, these judgments outlined the test that must be used in the determination of whether arrangements made for the care and treatment of an individual lacking capacity to consent amount to a deprivation of liberty. As the British Medical Association commented, in its judgment the court said that:
“The benign purposes of care arrangements are not relevant to the question of whether a person was deprived of liberty … What would be a deprivation of liberty for a non-disabled person is also a deprivation for a disabled person … The key feature is whether the person concerned is under continuous supervision and is not free to leave … The person’s compliance or lack of objection, the purpose of the placement or its relative normality are immaterial”.
As a consequence of this judgment there has been a significant increase in the number of DoLS applications received by local councils, as we have already heard. Government figures show that there were 13,000 DoLS applications in 2013-14. Following the judgment, there have been 86,500 applications so far this year, according to the Association of Directors of Social Services. The number of applications has increased every quarter. Further, as ADASS has stated, as well as significant cost implications, this places great strain on the ability of staff and local councils to meet their statutory duties. Most importantly, it makes it harder to meet the needs and protect the best interests of the most vulnerable people in society in a timely way.
I shall illustrate this further. In my council, Manchester City Council, there has been a fivefold increase in DoLS applications since the Cheshire West judgment. In 2013-14, there were 236 applications; this year to date, there have been 1,147 applications. There is also a backlog of 200 cases which the council is working through, having recruited additional assessment capacity. The cost of a straightforward application is £900 in court costs, and court costs will be significantly higher for disputed applications. Therefore, Manchester is experiencing significant cost pressures in court fees and assessment costs to meet the needs of the most vulnerable people and their families. ADASS has suggested that each case needs 10 hours of assessment time. Manchester agrees with that. For Manchester, it equates to 10 full-time equivalent practitioners to deal with the additional assessment requirements following the Supreme Court judgment. To aggregate this, and against a backdrop of considerable strain on resources in adult social care, it is estimated that the cost to councils is in the region of £98 million over and above the current funding for DoLS activity in 2014-15. Furthermore, the BMA has stated that the authorisation for DoLS is cumbersome, bureaucratic and time-consuming and, crucially, will inevitably divert resources from front-line care.
As a consequence, the Local Government Association and ADASS are calling on the Government to fully fund the cost of the changes to DoLS and to ensure that the healthcare of vulnerable people is not affected. I spoke at a Mencap conference in Cardiff today on learning disabilities and access to justice. It expressed concern that the costs imposed by DoLS might deflect from the direct care of people with such disabilities. Will the Minister explain the Government’s position on the funding arrangements?
I return to the Select Committee report and the Government’s response. The House of Lords Select Committee rightly asserted:
“Better understanding of the purpose behind the safeguards is urgently required”.
Part of the Government’s response was to request the health and social care sector to establish a multiagency task force to determine the impact of the Supreme Court judgment on local authorities and to identify potential solutions, such as pooled training and sharing good practice. This is clearly welcome but, as ADASS pointed out, even with extensive sector-led activity, local authorities cannot hope fully to mitigate the impact of the judgment without additional resources. Further, as we have heard, the BMA is calling for an urgent review of DoLS with a view to simplifying and streamlining the system. I would welcome the Minister’s response to that call.
Another key point is that considerable uncertainty remains in a wide range of circumstances about whether care or treatment will amount to a DoLS. This uncertainty could lead to confusion for health professionals and a defensive and bureaucratic mindset, as the BMA pointed out. This is partly through the failure to deliver effective training in this area, as the noble Baroness, Lady Finlay, pointed out in last week’s debate, and can lead to staff being understandably risk-averse in the assessment process.
Investment in training in all aspects of mental health and learning disability legislation and services is essential, particularly in relation to the Mental Capacity Act and the related DoLS. Many organisations support that view, including Mencap, which clearly recognises the specific training needs of staff working with people with learning disabilities. My views on the crucial importance of training, for what they are worth, have been shaped by my involvement in the national rollout of liaison and diversion services for people with mental health and learning disabilities who come into contact with the criminal justice system. Those multiagency programmes rely on training not only within individual organisations but, more importantly, across organisations to ensure that there is a common understanding of the needs of the individual, breaking down organisational and cultural barriers.
While it is welcome that the Government have recognised some of the issues that have been identified as a result of the Cheshire West judgment, faster action and more resources need to be considered properly to respond to the Select Committee’s nine recommendations on goals and to ensure that the health and social care needs of some of the most vulnerable people are properly met. I hope that the Government therefore respond in a more speedy and timely manner on those issues.
My Lords, I am very grateful to the noble Baroness, Lady Finlay, for raising this important issue for debate and for her authoritative speech, alongside those of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Bradley. I also very much appreciated the contributions from the noble Baroness, Lady Hollins, and my noble friend Lord Howard of Lympne.
Since the Supreme Court judgment in the case of Cheshire West on 19 March 2014, social care and NHS providers have been working hard to understand the implications for their service users and to plan a response that prioritises the well-being of all the individuals for whom they care. I pay tribute to their efforts and the efforts of the local authority teams responsible for assessing and authorising any deprivation of liberty.
The phrase “deprivation of liberty” arouses a lot of emotion, some of it unhelpful. It can feel intimidating, perhaps even stigmatising. The phrase derives from the European Convention on Human Rights, which stipulates that, when an individual is subject to a deprivation of liberty, they must be provided with legal safeguards and a legal route of appeal. In England, for those who lack capacity in hospitals and care homes, this is provided by the system known as the deprivation of liberty safeguards, or DoLS. Despite the negative connotations of the phrase, a deprivation of liberty can be entirely appropriate, if it is in the best interests of the individual concerned and an appropriate and proportionate approach to providing necessary care and treatment. An example would be a dementia sufferer who requires 24-hour care and who would be prevented from leaving a care home because he does not know where he is going, does not know how to safely cross a busy road and who has a history of endangering himself when he does leave. This could be an entirely appropriate deprivation of liberty.
The noble Baroness referred to the Supreme Court judgment, as did noble Lords. The judgment clarified the test for a deprivation of liberty. There are three parts: first, that the individual lacks capacity to consent to the arrangements for their care; secondly, that they are under continuous control and supervision; and, thirdly, that they are not free to leave. Many have welcomed the Supreme Court judgment for emphasising the universal nature of human rights. As for the scope of the judgment, about which the noble Baroness asked me, I hope that she will excuse me for not attempting to interpret case law here and now. However, she may be interested to know that, by the end of this month, the Law Society, commissioned by the department, will publish extensive guidance on the matter.
How we regard those who lack capacity is a cultural challenge. A Select Committee of this House recognised that the health and care system, and society at large, have a way to go to implement the Mental Capacity Act, of which DoLS are part. It noted the tendency of the health system to act in a paternalistic fashion—that of “doctor knows best”. Of course, all health and care professionals want what is best for the service user, but this does not mean that health and care settings can be exempted from the legal safeguards that all of us are entitled to and which ensure that our human rights are protected.
Let us be clear on another point as well: DoLS do not cause a deprivation of liberty. The deprivation of liberty results from the nature of the care and treatment package. As I indicated, the restrictions on freedom of movement and choice that constitute a “deprivation of liberty” may be entirely justifiable and necessary. DoLS exist to ensure that this is the case—in other words, to assess the individual’s situation and ensure that the deprivation of liberty really is necessary—and, if not, to instigate the steps to ensure the person is provided with more freedom. Therefore, DoLS, despite the sometimes negative attention, are positive things that promote the equal human rights of the individual.
The key question, then, is this: are the current deprivation of liberty safeguards the best they can be? Do they allow the individual’s human rights to be protected, but, at the same time, can they be implemented at a population level so that all individuals have their rights protected? As has been mentioned, following the Supreme Court judgment there has been a great surge in DoLS applications: 90,000 in the nine months following the judgment. This represents a tenfold increase. Many local authorities are struggling to process these; there is a significant backlog of applications. It seems clear to the Government that the current DoLS system was designed when deprivation of liberty was seen to be a fairly rare occurrence. The law—perhaps even society—has now moved on.
The Government believe that the DoLS system may not be the best way to provide safeguards at a population level. That is why we have secured the services of the Law Commission to fundamentally review the legislation and propose a new system that covers care homes, hospitals and community settings. This summer, the Law Commission will produce a detailed public consultation paper on future options.
Meanwhile, the Government have been taking steps to assist providers. We have instigated more frequent data collection to monitor better the impact of the Supreme Court judgment. We have issued guidance notes to reassure and to inform. We have significantly cut the number of standard forms associated with making a DoLS application from 32 to 13. We have commissioned extensive guidance as to what now constitutes a deprivation of liberty, which will be published within the next two weeks.
The noble and learned Lord, Lord Hope, and the noble Lord, Lord Bradley, referred at some length to the backlog of applications. We are aware of this. ADASS has produced some helpful guidance that assists local authorities to prioritise the applications for those most at risk. The reduction in the number of forms will also reduce the administrative burden, allowing applications to be processed more quickly. However, the backlog is concerning as it indicates that some people may not be benefiting from the safeguards. We are working more closely with local government and are closely monitoring the situation.
There is a positive element here: because of a clarification by the Supreme Court, tens of thousands of vulnerable individuals are having their care scrutinised. There is work to be done in responding to the judgment, but as I have said, we will work closely with local authorities to get the safeguards provided to as many as possible. I can tell the noble Lord, Lord Bradley, and the noble Baroness, Lady Finlay, that the Department of Health has provided local authorities with £35 million in 2014-15 for their MCA/DoLS responsibilities.
The Government, together with the Care Quality Commission and the Association of Directors of Adult Social Services, have stressed over the last year the importance of a proportionate response to the Supreme Court judgment that puts the individual’s best interests first. DoLS will become a paperwork exercise only if it is applied as a blanket measure—for example, assessing all individuals in a ward together and not considering each patient’s individual circumstances. If providers can demonstrate that they have an understanding of the Supreme Court judgment, that they have policies and procedures in place to ensure that restrictive care practices are minimised, and that they are doing their very best to make DoLS applications where appropriate, then we do not expect that they will be unfairly penalised.
The noble Baroness, Lady Finlay, asks whether decisions are properly scrutinised and whether advocates or relatives are asked to feed in to those decisions. Government officials are in regular contact with those working on the front line. So far, it seems that assessors are keeping to the ethos of the Mental Capacity Act—namely, they are not treating this simply as paperwork. The DoLS forms were subject to consultation with a range of practitioners. We are still taking on board comments on the forms and we welcome suggestions for improvement.
The noble Baroness, together with the noble Baroness, Lady Hollins, referred to the difficulty posed by delayed discharges. The Government have recently done a lot of work to speed up appropriate discharges from hospital settings. It is hard to be conclusive about the impact of DoLS here, but it is reasonable to assert that in some cases a DoLS application could help discharges, identifying, as it may, a least restrictive option outside of hospital.
The noble Baroness, Lady Finlay, asked about consent—whether it had to be in writing and the timeliness of the consent. It is important that any wishes that the person made known when they had capacity are considered when decisions are made at a later date when they may lack capacity. This would apply, however those wishes were expressed. However, having something in writing means that the wishes are clear and not second or third hand, and therefore that form of consent may hold more weight. In terms of timeliness, any medical professional should always give consideration to whether a statement of wishes or an advance decision reflects the person’s current wishes or feelings. As these may have changed over time and/or in the light of a change of circumstances, it is important that family members and carers are consulted on the current validity of such decisions.
The noble and learned Lord, Lord Hope, referred to long-term placements as compared to restrictions imposed on a temporary basis. It is an important principle that any deprivation of liberty authorisation must be for the shortest time needed to achieve the desired outcome. Currently, we have essentially a one-size-fits-all model for DoLS. However, the Law Commission will be considering whether a more flexible model might be better.
The noble and learned Lord, Lord Hope, and my noble friend Lord Howard questioned whether there might be changes to the law that we could make more quickly to help alleviate the pressure on the system pending the Law Commission report. I know that some partners have called for rapid legal changes. One example is increasing the time for which hospitals can authorise a deprivation of liberty—that is, instead of the current seven days, perhaps 14 or 21 days. Another suggestion that I have heard is to change the requirement for local authorities to process applications within 21 days by extending that period. Although I sympathise with local authorities and hospitals because of the pressures they are under, the counterargument that I know many others make is that, with something as important as fundamental human rights, government should not weaken the safeguards. My own belief is that the changes proposed should be considered in the round with the wider changes that the Law Commission is currently considering so that we do not inadvertently cause negative or unhelpful side-effects.
The noble Baroness, Lady Finlay, questioned whether there should be a test case—and, if so, who should do it and where the funding should come from. In terms of a test case to take to the Supreme Court, the Government are not yet minded to force this issue. The majority of partners that officials have spoken to support the Cheshire West judgment. We understand that the implications are many and that they vary by settings. As such, the Government have provided, where possible, guidance on specific settings, such as those that the noble Baroness, Lady Finlay, referred to relating to hospices. That guidance has, I think, been very well received.
I understand the noble Baroness’s concern about the implications of the judgment for different settings, particularly those where the fewest number of DoLS applications have traditionally come from. She has, as we all acknowledge, considerable expertise in this area and I would be grateful and pleased to facilitate a meeting with the officials leading this work if she would find that useful—and, indeed, with the Law Commission team looking at future legislation. It is vital to have the support of medical professionals for any future system to replace the current DoLS system.
I have not addressed all the points made by noble Lords this evening. If I am able to add to the comments that I have made, I would be happy to do so in writing. Suffice it to say, for now, that the Supreme Court judgment has challenged us to think about how we regard the most vulnerable members of society. The ultimate test is for those of us fortunate to have full capacity to put ourselves in the place of those who do not. If we were prevented from leaving a hospital ward—if we could exercise no choice over our day-to-day activities, over whom we met and when we met them—I wonder how we would feel. I suspect that we would expect at the very least to have a legal route of redress. Those who lack capacity deserve and are entitled to exactly the same. The challenge now is to deliver these rights in a busy and pressurised health and care system upon which demand continues to rise.
House adjourned at 8.03 pm.