House of Lords
Tuesday 27 November 2018
Prayers—read by the Lord Bishop of Worcester.
Death of a Former Member: Baroness Trumpington
My Lords, I regret to inform the House of the death of our much-loved colleague and friend the noble Baroness, Lady Trumpington, on 26 November. On behalf of the House, I extend our condolences to the noble Baroness’s family and friends.
Schools: Mental Health Support
To ask Her Majesty’s Government what steps they are taking to develop mental health support in schools.
My Lords, many schools already promote their pupils’ mental health and we are providing significant new support to them. In July, we confirmed our commitment to train mental health leads in schools to develop whole-school approaches to promoting and supporting good mental health. But schools cannot act as mental health experts, so we will also provide increased specialist support from new, clinically supervised mental health support teams.
I am grateful for the Minister’s reply. He will be aware that 65% of children and young people who have mental health problems currently get no support. I am aware of the trailblazers but they will take time to be established and teach good practice. We have a resource in schools which, sadly, is underfunded. It has too many vacancies and spends all its time on its statutory responsibility of reviewing cases under the Children and Families Act—I mean, and thus mention, our educational psychologists. Why can we not provide extra resources so that educational psychologists who are in post can do this work to provide support for children and young people with mental health problems?
My Lords, we are improving specialist children’s and young people’s mental health services with our £1.5 billion investment from 2015. We recognise that we need to do more, which is why the NHS will invest at least £2 billion a year in mental health, including children’s services, under the recent Budget proposals. Our Green Paper proposals are about providing support quickly through teams directly linked to schools and testing four-week waiting times for more specialist follow-up. We are absolutely not complacent about this vital area.
My Lords, frequently children with ME are diagnosed as having a mental health problem at school, which leads them into child protection proceedings. Can the Minister please ensure that the people responsible are aware of the fact that ME is not a mental health condition so that these children are not treated as mental health patients?
My Lords, that is the reason we are rolling out mental health training in schools. Since April last year, we have already trained 1,300 teachers across 1,000 schools to increase awareness of subjects such as the one the noble Countess raises.
My Lords, I understand that the numbers of school nurses and counsellors has dramatically decreased over the last few years. Can the Minister confirm this? What is the role of school nurses and counsellors, or do they no longer have one because they have disappeared?
My Lords, it is up to individual schools to deploy their resources as they see fit. Where school counsellors provide an important role, I am sure they are used, but as I said in answer to the supplementary question asked by the noble Lord, Lord Storey, we are deploying more resources into this area in schools.
Is the Minister aware that the Jewish Leadership Council has just launched a scheme to improve mental health in schools? Trained counsellors/well-being practitioners are being recruited to five schools—two primary schools, Rimon and Broughton Jewish, and three secondary schools, JFS, JCoSS and Yavneh College—for a three-year pilot. Will the Minister join me in congratulating Yavneh College, Spencer Lewis, the head teacher, and the staff as, according to the Sunday Times, it has just been announced as the best performing non-selective school in the country?
My Lords, many faith schools are high performing and achieve consistently high exam results. I am happy to join my noble friend in congratulating Yavneh College. Many of the best schools focus on well-being as an intrinsic part of their job, so I welcome the initiatives highlighted by my noble friend. Promoting well-being can help prevent problems arising or escalating, ensuring that both the school and pupils are provided with the tools they need to achieve the best results.
My Lords, while I am grateful for the increased funding that is now available for mental health services for young people, is the Minister aware of the real difficulties facing young people in a crisis situation? I am thinking of a 14 year-old who asked his father to take him to the GP because he was afraid he might do something silly. The GP sat and listened very sympathetically, but then said, “I’m afraid there’s very little I can do for you. If I give you a referral to CAHMS you probably won’t get an appointment for a year”. Is that not a crisis situation?
My Lords, there are always going to be individual incidents such as that, and that is why we have made such a big commitment to increasing mental health funding over the few next years, including children’s mental health. As I mentioned in answer to an earlier question, improving awareness of mental health issues, such as the trauma just mentioned by the right reverend Prelate, will help us deal with these cases.
My Lords, does the Minister agree that having a few people trained in every school does not mean you will get throughput unless you have basic awareness within the staff? That can be achieved only by continuous professional development structured in an awareness package, so that you get to the people you are training.
My Lords, we are introducing mental health training as part of teacher training. We are beginning a voluntary scheme in September next year, and that will become a compulsory part of teacher training programmes. Returning to the earlier point about funding, we aim to add another 8,000 mental health professionals into the system over the next few years.
My Lords, may I add another element to this vital debate? It is about all schools having a school garden. I shall quote from a recent report by the King’s Fund:
“The mental health benefits of gardening are broad and diverse. Studies have shown significant reductions in depression and anxiety”,
and “improved social functioning”. This costs unbelievably little, and lessons can be based around it. In my time running the London Food Board I put many gardens into London schools, and the effects were dramatic. The cost is as little as 50 quid—with a bit of volunteering—and it has a permanent, long-term effect.
I strongly support the noble Baroness’s comments on children’s exposure to outdoor activities. There is a very good trust, the Country Trust, which takes children on to farms in the same spirit as just mentioned. I think this is enormously important. I am the Minister responsible for the disposal of land in schools, and I intervene weekly to ensure that land used for such outdoor pursuits is not disposed of.
My Lords, does the Minister not realise that the answer he gave to the right reverend Prelate about it taking a year to get help for a child in need was extraordinarily disappointing? Can nothing be done to deal with these urgent cases, about which the right reverend Prelate made such a persuasive point?
My Lords, we are committing to and experimenting with much shorter waiting times in the NHS to bring that down to four weeks. The rollout of the trailblazers will be in exactly the same spirit: to learn best practice, which we can then adopt across the whole system.
To ask Her Majesty’s Government what steps they are taking to ensure that the planned local government fair funding allocation will provide local authorities with the resources needed to provide sufficient and effective local services.
My Lords, I am pleased to say that we are making good progress on the development of a funding formula that aims to provide a simple, transparent and accurate link between local authority relative needs and resources and available funding. The new funding formula will sit alongside the conclusions of the planned spending review, which will settle how much money is available to local authorities.
I thank the Minister for his response. I hope he is aware—I am sure he is—that the Institute for Fiscal Studies reports that, in the last eight years, real-terms spending on council services has fallen on average by 24% per person and in more deprived communities by up to 35% per person. Simply dividing this shrunken pot in a different way will fail to address the real and serious problem of the underfunding of local services. Will fair funding ensure that the total available is significantly higher than it is now?
My Lords, the noble Baroness makes a persuasive point, but as I have just indicated, these are two separate things that are sitting alongside each other. The fair funding formula will be looking at redressing some of the imbalances that exist at the moment in a relative sense, but alongside that of course is the spending review next year, which, hopefully, will be doing some of the things that the noble Baroness and I—and, indeed, many others—would want it to do.
My Lords, as the Minister knows, this is an incredibly complex area in which there is great misunderstanding. I have an enormous amount of time for the Minister. Perhaps he would explain to the House how there is going to be a fair distribution formula when the whole system from 2020 depends on local council tax and revenue raising locally and the distribution of the business rate, which falls where it falls?
I thank the noble Lord for those comments. The formula that we are looking at is in essence about redistribution. It is in three separate phases. The first is to look at the relative needs of different areas. The consultation on that has concluded and we will be publishing its results when the second phase of the consultation, looking at relative resources, starts in December. The third stage, which will be in late spring or summer next year, will look at allocations and transitional arrangements. The noble Lord is right that the situation has its complexities; there is a simplicity about the aims, but the difficulty will be in their delivery. As I say, though, that sits alongside looking at resources and the spending review that will go alongside it, so those are two separate matters. The business rate retention scheme, at 75%, will also kick in when the fair funding formula comes in, in April 2020.
Does the Minister agree that with £15 billion of reductions for local government by 2020, the local government sector has done more than its fair share of ensuring that the burden that the country has carried since the previous Government were in power has been met, that that equates to 60p in the pound in central government funding and that a fair funding review must make sure that no council is worse off than it currently is?
My noble friend always, understandably, makes a powerful case for local authorities. He will be aware that in the Budget we added money for adult and children’s social care. As I said, the fair funding formula is not about adding to the pot—that will, I hope, be done in the spending review next year.
My Lords, we are all aware that many councils, in particular county councils, are facing serious financial problems. Within the UK, we now have devolved Administrations, combined authorities, metro mayors and city deals, all with varying tax-raising powers offering different degrees of fiscal autonomy. Does the Minister agree that the two-tier system is now the Cinderella of local government, and is it not time for the Government seriously to consider offering all councils similar powers before it is too late?
Where I agree with the noble Baroness is that the system is already quite complex. Although she referred to the devolved Administrations, these particular issues will not affect Wales or Scotland—not directly anyway—nor, indeed, Northern Ireland; they are just about England. She has a point about the need for simplicity, and that runs through the review. It is aiming to be simple and transparent. That is why we are taking our time on it and why we are doing it in this way. As I said, noble Lords and others will see the results of the first stage of that consultation when we publish it next month.
My Lords, does the Minister recognise the fundamental flaw in his argument? He says that the fair funding review will not bring any new funds and he could not assure the noble Lord, Lord Porter, that no council would lose money. If some will get increased funding and there is no new money in the pot, others will lose money. Local authorities have had a £16 billion cut in their funding, while costs have risen. How much longer can the Government keep shoving costs and responsibilities on to local authorities while not paying for them?
My Lords, as always, the noble Baroness makes a powerful point, but it is not a point on the Question. The Question is about the fair funding formula, which is about relativity, not increased spending. That is the point I was keen to make. There are issues about increased spending, but not from the fair funding formula; they are for the spending review. I also pointed out that in the Budget there were increases in spending for local authorities on adult and children’s social care. That is a fact and there is no denying it.
My Lords, I make the case on behalf of sparsely populated rural counties, such as Lincolnshire. The truth is that rural counties have never been fully funded because the sparsity factor has not fully been taken into account.
My Lords, my noble friend makes a powerful point for an area that he knows well. Sparsity and population density are very much centre stage in the fair funding review and will be taken full account of.
My Lords, an important public service that has been and continues to be cut is public health. Directors of public health tell me that they can spend money extremely cost-effectively. Are the Government doing any research into the public health interventions carried out by local authorities, to let everybody know what works?
My Lords, I can give the noble Baroness the assurance that the public health grant is to be incorporated into local spending by virtue of business rate retention. We are proceeding rather slowly on this because we are keen to ensure that the assurance arrangements are fully recognised to cover the points she makes.
To ask Her Majesty’s Government what assessment they have made of the sufficiency of current industry contributions to efforts to reduce gambling-related harm.
My Lords, protecting vulnerable people from harm is central to gambling regulation. Operators must prevent underage gambling and train staff to intervene if a person is in difficulty. They must provide information on accessing help. The Gambling Commission also requires a financial contribution to research, education and treatment. Our review set out measures to strengthen protections across the industry, as well as a system for funding support. Donations this year are well on track to meet targets.
I thank the Minister for his reply and am glad that the Government will increase the remote gaming duty next year. But in a year in which Simon Stevens pointed out that problem gambling is costing the NHS between £260 million and £1.2 billion a year, and the gambling industry made a total return of £13.9 billion, is it not time that we moved away from the voluntary levy to a compulsory levy which significantly contributes to research and treatment?
My Lords, there are a number of issues there. First, the figures quoted by the right reverend Prelate apply to the total cost of gambling, not just to the NHS. Of course, he did not mention the other side of the equation, which is the £2.86 billion in gambling taxes, apart from national insurance, corporation and income tax, which the gambling industry raises to help pay for the NHS. We recognise the need for reliable evidence on the wider impact of gambling-related harm, so work is under way to bill this. On the funding itself, for treatment, it is our priority to strengthen the voluntary system and build our understanding of what is needed. We have always said that we want to see operators step up, and I am glad to say that donations are on track to meet GambleAware’s targets. If the actions to improve the voluntary system do not bring results, we will consider other options, but we do not consider it necessary at this stage.
My Lords, when I was responsible for gaming in the Home Office back in 1995, the rule was that firms could not do anything to stimulate demand. Casinos had a 48-hour membership and gambling companies were not even allowed to advertise in Yellow Pages. Given the disastrous consequences of this deregulation, with ads appearing on daytime television and in sport, is it not time that we reverted to when we had a workable and efficient policy?
My Lords, for most people—the vast majority of people—gambling is not a problem; problem gambling is less than 1%. But I take my noble friend’s point that, for a small number of people, gambling can be a problem, and advertising could contribute to it. There is no reliable evidence on the extent to which it contributes, but we are putting tough new guidance into advertising to protect vulnerable people, including children. A large advertising public service campaign is being put out to promote responsible gambling. But advertising is one of the things we are considering, so I shall take my noble friend’s point on board.
My Lords, on previous occasions when we have looked at gambling and fixed-odds betting terminals were considered, there was a perceptible measure of support for the rather humble measures we proposed, which have now been accepted. I suspect that the mandatory rather than the voluntary levy would command equal support from all Benches. Although I am repeating the Question asked by the right reverend Prelate, I ask again: how long do we have to wait for studies in an industry that generates an enormous amount of money—so much so that one person can have a pay rise of £45 million? It would not be onerous to ask for a mandatory rather than a voluntary levy, which I am sure is the next step that as a House we should responsibly be advocating.
The question is why you would want to introduce a mandatory levy. At the moment, GambleAware gets more than the money it asks for. It says it needs £10 million a year, and it is getting an extra £5 million from penalty payments, so it is getting more than it asks for. As I said, if we find that there is a need for more money and the voluntary system is not producing it, we will consider other options.
My Lords, I think the House will be somewhat surprised that the noble Lord is suggesting that more money is not needed. There are 430,000 problem gamblers in this country, and currently only 2% of them are getting help. Does the Minister not find it odd that we have a compulsory horse-based levy that brings in £70 million to help horses, and we have a voluntary levy that brings in £10 million to help people?
It is a mistake to say that the racing levy is there to help horses, although a small proportion of it is for veterinary reasons. It is there to help the racing industry and the people who work in it. By the way, a lot of people complain about that levy too. We have asked the industry to contribute, voluntarily, to research, education and treatment. We have said that if it does not produce enough we will look at other options. Just because the industry has a large gross gambling yield—not profit but yield, which is different and before payment of expenses—that does not mean that we should, for the sake of it, increase the levy and have a compulsory one.
Television Licences: Over 75s
To ask Her Majesty’s Government what steps they will take to maintain free television licences for those over the age of 75.
My Lords, we know that people across the country value television as a way to stay connected with the world. The Government have guaranteed free licences for those over 75 until 2020. We agreed with the BBC that responsibility for the concession will transfer to it in 2020. It confirmed that no decisions will be taken until the public have been fully consulted, but we have been clear on our expectation that the BBC will continue the concession.
My Lords, in its manifesto the Conservative Party actually promised free TV licences for the over-75s until 2022. However, the BBC is currently consulting on “what, if any” licence fee concession should be in place for older people from June 2020. The ONS classifies the BBC licence fee as a tax. Will the Minister point to the section in the royal charter that gives the BBC the power to levy taxes? He will recall that he said, on 29 March 2017:
“I reiterate that taxation is a matter for the elected Government”.—[Official Report, 29/3/17; col. 624.]
Does he still stand by that statement and will he join me in calling on the BBC to withdraw this disgraceful consultation?
The BBC is doing exactly what it agreed when the settlement was put in place in 2015. We agreed at that time to provide a continuous licence fee, increasing by inflation, for five years. That had never been done before. We agreed to close the iPlayer loophole, which was what it wanted. In return, the BBC agreed to take on this concession. However, we have been clear that we expect the BBC to continue with this important concession. It was agreed by the BBC, Parliament and the Government.
Speaking as one who declares an interest as I was 82 last Sunday, should the director-general not look at his own house? For instance, why should he not look at the Peacock report, which proposed that the BBC should take advertisements in certain circumstances? After all, the BBC World Service takes them and—your Lordships may study this—there are about three minutes of propaganda for forthcoming programmes in every hour of BBC programmes, ad nauseam.
The director-general of the BBC should be proud when he looks at himself in the mirror. The BBC is a national institution and the Government support it. We made a deal with it when the new charter was put in place. It is a £5 billion organisation and is more than capable of delivering on this agreement.
My Lords, in this age of multichannel provision, our public service broadcasters—not least the BBC—are crucial in ensuring the provision of high-quality, British programming and news that we can rely on. Yet if the BBC does not go ahead with cutting the over-75 licence fee concession, its own content will be dramatically cut. Why should the BBC be forced to make a social policy decision that should be the remit of government? If the Government want the fee concession for over-75s protected then surely they should pay for it, not the BBC.
The noble Lord talks about news but other public service broadcasters have the same duty to provide impartial news. I completely agree with him that what the BBC produces is a benefit, and it is a tribute to it. Other public service broadcasters have the same duty but they do not have a £3.8 billion head start from the taxpayer.
My Lords, I am not sure that the Minister answered my noble friend’s question. If it was a manifesto commitment of the Conservative Party that the licence fee concession would continue until 2022, why have the Government subcontracted it to the BBC to break that manifesto commitment? Does he regard the licence fee as a tax and, if so, do the Government subcontract taxes to other people?
I think that the noble Lord misunderstands the position. We made it absolutely clear to the BBC that we expect it to continue with this important concession, and in October the Secretary of State also made that clear to the House of Commons committee. However, the Digital Economy Act, which was passed before that, also made it clear that the Government retain the power to maintain the concession until 2020, which we will do, after which full responsibility will transfer to the BBC. Therefore, the settlement took place before the manifesto was written.
Would it not be good if the director-general of the BBC occasionally came to this House, of which he is a Member, to assist us in discussions of this kind?
I am not sure that that would be helpful—for a number of reasons but mainly because it is very important that the BBC’s director-general, who is the editor-in-chief of the BBC, stays clear of politics as much as he can.
My Lords, I do not think I am alone in struggling to understand exactly what the Minister is telling us. Can he confirm that, when the settlement with the BBC was made, it was made clear to it by the Government that it would receive the five-year funding uplift on condition that it continued to maintain the free licence for over-75s? If that is the case, effectively the BBC’s licence fee income was cut. Can he confirm that that is the case? If it is not, presumably the BBC has the autonomy to do as it pleases and determine the outcome of the licence for the over-75s.
The noble Baroness is quite right: the BBC has the autonomy to do as it pleases. Responsibility in this area was handed over to it in the Digital Economy Act with Parliament’s agreement. So far as the first part of her question is concerned, it is true that that was agreed in the settlement, and that is why the director-general of the BBC said:
“The government’s decision here to put the cost of the over-75s on us has been more than matched by the deal coming back for the BBC”.
Financial Services and Markets Act 2000 (Claims Management Activity) Order 2018
Motion to Approve
That the draft Order laid before the House on 9 October be approved. Considered in Grand Committee on 21 November.
Mental Capacity (Amendment) Bill [HL]
Report (2nd Day)
Relevant document: 12th Report from the Joint Committee on Human Rights
Schedule 1: Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005
29: Schedule 1, page 10, line 8, at end insert—
“Rights to information11A(1) Prior to the authorisation process, the cared-for person must be fully informed of their rights.(2) The responsible body must take such steps as are practicable to ensure that the cared-for person and any appropriate person or Independent Mental Capacity Advocate representing and supporting them understand the possible outcome of the assessments, the reasons why the cared-for person may be deprived of their liberty and their rights—(a) to request an Approved Mental Capacity Professional’s assessment and review of the arrangements,(b) to advocacy, and(c) to challenge the authorisation in court.(3) If an Independent Mental Capacity Advocate is appointed under Part 5, the advocate is to take such steps as are practicable to help the cared-for person and the appropriate person to understand the following matters—(a) the steps involved in the authorisation process,(b) the purpose, duration and effect of the authorisation,(c) any conditions to which the authorisation is subject,(d) the reasons why the cared-for person met the qualifying requirements in question,(e) the right to object to the authorisation and the right to request a review by an Approved Mental Capacity Professional,(f) the outcome of a review of the arrangements,(g) the relevant rights of the cared-for person,(h) how the cared-for person may exercise relevant rights.(4) In this paragraph, “relevant rights” includes the right to make an application to the court to challenge an authorisation decision in court under section 21ZA and the right to request a review of the arrangements.(5) The responsible body must ensure that cases are referred to court when the cared-for person’s right to a court review is engaged.”
In moving Amendment 29, I shall speak also to Amendment 86, having added my name to both. My noble friend Lady Hollins originally tabled this amendment, which is associated with rights to information. She is unfortunately unable to be here, so in her absence I will articulate the points on behalf of us both, without repeating many of the arguments made at Second Reading. The amendments are supported by many third sector bodies, including the Royal Mencap Society, Mind, Rethink Mental Illness, the Alzheimer’s Society, Disability Rights UK, Inclusion London, Liberty, VoiceAbility, the National Autistic Society, Sense and others.
As it stands, there is a fundamental imbalance in the proposals, with the power in many cases lying with health and social care providers and the responsible body. These amendments seek to partially redress that balance, in part by ensuring that critical information is provided to the individual concerned, the person being cared for, and those advocating on their behalf.
Under the first part of Amendment 29, the individual would receive information about their rights in advance. This is critical, as is having someone—an appropriate person or advocate—to explain things to the person in a way meaningful to them. VoiceAbility, which provides advocacy for people who may lack capacity and their families, has received feedback from families that having information clearly explained to them up front can help dispel many misunderstandings and myths that can escalate the person being cared for being them very unsettled.
Knowing the reasons why you were detained, and what you can do about it if you are not happy with your conditions or placement, is important. Similarly, the knowledge that you can ask for a review or challenge the decision can help to reduce the stress and anxiety that many people face—even if the person does not at the outset wish to exercise their rights to review or challenge.
Information should, of course, be provided in an appropriate format, which is clear, easy to understand and takes account of any communication difficulties that individuals or their families have. Providing people with just written information is not enough. Some people may require easy-read information in jargon-free, plain English. Others should have the opportunity to speak to somebody and ask questions. Some families may need a translator, and some individuals may need sign language such as Makaton to fully understand the situation they find themselves in. There is very limited knowledge about DoLS and even less about the proposed LPS, and it is therefore critical that people understand the process they are entering.
The Bill requires the responsible body to complete an authorisation record containing important information for the cared-for person. It does not, however, require that this information be automatically provided to the cared-for person, their family or an advocate. The second part of Amendment 29 and Amendment 86 address this by ensuring that the responsible body provides the cared-for person and any advocate with information about the outcome of the authorisation, what it means and the reasons why their liberty may be deprived. As before, this must be provided in a format that is appropriate for them and easy to understand. It must also detail the person’s rights to challenge the assessment and request an intervention from an approved mental capacity professional, their right to advocacy and how to challenge the authorisation should they so wish. People often feel disempowered in this situation, and in many cases simply accept inappropriate provision without understanding that they can challenge it. Finally, these amendments would ensure that information is provided relevant to the process of how to challenge their individual assessment and, in turn, the fact that their liberty is being deprived.
Advocacy must play a central role in this Bill. The amendment recognises this by spelling out the functions of an IMCA at this critical juncture for the cared-for person. This includes helping the individual to understand the process, the assessment itself and the result of that assessment, as well as how they can exercise their rights of challenge.
I hope the Minister recognises that these amendments are an important addition to ensuring that people are empowered throughout the process. I look forward to his response. I beg to move.
My Lords, my name is attached to some of the amendments in this group, most notably Amendment 88. I endorse everything that the noble Baroness, Lady Watkins, said in her introduction. It is paramount that those detained under this legislation, and their friends and family who care for them, must know in exact detail that they are being detained under a law that stipulates that their detention should be the least restrictive option for their care and what their rights are.
In speaking to my amendment, I wish to return to a theme I have spoken to throughout our discussions: the role of a code of practice. As I said in our previous discussions on the right to information—as set out in cols. 335-38 of Hansard on 15 October—there is a fair amount of unease and disquiet among stakeholders about the Government’s understanding of the duty to provide information and its place in legislation. It is important to state again that statutory codes do not exist without a statute, and the majority of laws do not have a code of practice. Codes are there only for when non-legal people are using a law directly. No one expects non-legal people to read or necessarily understand a statute and so a code is provided. Such a code follows what is in statute and sets it out in lay terms and at length. But it would not exist if the obligation in law was not clearly set out.
We have had some case law about the Mental Capacity Act code of practice. In 2018, in the case of An NHS Trust and others (Respondents) v Y, the Supreme Court said:
“Whatever the weight given to the Code by section 42 of the MCA 2005, it does not create an obligation as a matter of law to apply to court in every case”.
In the Mental Health Act code, which has been in force for a very long time, and to which the original drafters of the Mental Capacity Act looked when drawing up the legislation back in 2005, there is an explicit duty on hospital managers to provide information to a person who is detained and to the relevant interested persons responsible for their welfare.
No doubt the department will stick to its line that a code of practice is adequate. However, for the reasons I have outlined, which I think are compelling, we do not. I therefore simply wish to indicate that if the noble Baroness, Lady Watkins, is minded to push her amendment to a vote, she will have support from this side of the House.
My Lords, I too support Amendments 29 and 86 and others in this group.
It is essential that the cared-for person and their appropriate person and/or advocate are provided with information about the reasons for the cared-for person’s detention and their rights to review and also to challenge. It is a fundamental human right under Article 5 of the ECHR. Both the Mental Health Act and the DoLS contain clear obligations to take steps to help the person understand their situation and their rights; and the DoLS set out a clear statutory list of those entitled to copies of the authorisation and the assessment.
Despite this, the Bill is silent on these rights to information. The Minister has suggested that the person could request the information by making a subject access request under the GDPR. I agree with the Joint Committee on Human Rights, which does not accept this as an adequate substitute. This misunderstands the obligation, which is a right to be informed, not a right to request information. It is highly unrealistic to expect a person subject to the LPS to think that they would know to make this request and be able to do so.
Meanwhile, the person’s family would have no obvious rights to this information unless, of course, they held a lasting power of attorney or deputyship, and most will not. At the moment, requests for personal data are managed through the MCA code’s guidance, with data being disclosed only if it is in the best interests of the person. In practice, families, and even advocates, are often shut out of decision-making and consultations about the person, and can experience obstruction in trying to access vital information like this. The Bill should be compatible with the ECHR, not on promises of what might possibly be in the code—as my noble friend Lady Barker has just stated.
The Minister has confirmed that the code of practice is statutory and that it must be followed unless there is good reason not to do so. However, this is not the main problem. In some places the code is being asked to effectively establish rights and duties instead of explaining or elaborating on them. Duties to provide information about the authorisation and clear-cut rights to obtain copies of the authorisation documentation are an important example. A code cannot be used to achieve this.
I remind the House of a recent example in which the MCA code of practice said that certain very serious decisions—such as withdrawal of artificial nutrition or hydration—could be taken only by the court of protection. Peers were reassured in Parliament that that was the case and shown a draft copy of the code of practice, which stated it clearly. However, the Supreme Court ruled this year that that was not the case in law and that the MCA code of practice not only misstated the legal situation but could not establish a duty where none had existed. Consequently, if there is a need for a hard-edged duty or right, that needs to be put into legislation, not in the code.
I therefore urge the Minister that in this Bill we must have the provisions to provide the person with information about their situation and their rights, and also clear statutory entitlements to copies of the relevant documentation for those supporting and representing them.
My Lords, Amendments 49, 85 and 87, which are in my name, complement Amendment 29—which, like others, I strongly support. Information to the family and those who care deeply about the welfare of the person is the cared-for person’s safeguard against exploitation or bad care or simply having their needs ignored. It is paramount that families have a role to play in the care planning of their relatives, not least by giving them the option to stay fully informed and to object to the proposed plans if they are unsatisfied.
When an assessment happens at one point it is easy to collate all the information, get it signed off and then forget that every day until the scheduled review is a day to be lived by the cared-for person. If the conditions laid out in the authorisation are not adhered to, if the person is not empowered as much as possible to be both mentally and physically active, gradual inactivity and a slipping decline set in.
The care itself is important. Certainly, quality of care will vary between care homes and within them, but monitoring the care plan is central to ensuring that the cared-for person’s dignity is maintained. Their quality of life depends on how they are treated day in, day out, as well as whether they receive care in a way that enhances their personal dignity or, shamefully, they are treated as though they are of less worth. It is therefore imperative to ensure that the cared-for person is placed at the heart of the LPS authorisation process, which is why I want all those consulted in the initial process, as laid out in paragraph 17(2), to be able to access easily the care and support plan. Being able to apply for it is not enough; many people may not even know that they are able to apply to look at it. Relatives will notice if the care plan states that something is not happening and question why.
The care plan and authorisation record must be available to the cared-for person, enabling them to keep track of what is supposed to be happening. For those with fluctuating capacity or less severe impairments, the sense of control and empowerment that this would give is completely in line with the ethos of the Mental Capacity Act. Where the cared-for person cannot monitor their care plan, they can still know, even in their short-term memory, whether they are getting what they should get. Those with specific responsibilities for the cared-for person’s welfare—such as the nominated representative, the donee of the lasting power of attorney for health and welfare or the court-appointed deputy—must have both the authorisation statement and the accompanying care plan.
The care plan must also be provided to the care team in the cared-for person’s place of residence, because where such a place is supported living, I am concerned that those who provide support and are not on a professional register may find that they are not given all the details. I strongly support Amendment 29, introduced so clearly by my noble friend Lady Watkins. People must know what their rights are and what will happen. This will not be costly; it will be far less costly than the court cases that are likely to come if the requirement to provide information about all aspects of the process and plan is not in the Bill.
Amendment 87 deals with what to do in the event of a dispute. It requires an AMCP to be appointed to explore the reasons for the dispute and assess the situation independently. If agreement cannot be reached, independent mediation must be sought before resorting to the adversarial processes of going to court. A group of family law solicitors has been working for over a year to develop a system of mediation to be used before a court proceeding in the Court of Protection. This type of dispute, where everyone agrees that a solution must be found in the interests of the cared-for person, lends itself well to mediation; it would be swifter, cost less than any court action and be far less traumatic for all concerned. If the principle of dealing with dispute is not in the Bill, can the Minister reassure the House that it will be dealt with in the code of practice?
Before I finish, I urge the Minister to recognise the strength of feeling about people needing to be given information about their rights. If he will not accept these amendments, will he agree to bring the lead amendment in this group back as a government amendment at Third Reading? Requiring adequate information-giving must be in the Bill; it cannot be left to the code of practice, nor deferred to the Commons stages. This is one of the most essential planks in ensuring that the care that should be given is given.
My Lords, we on these Benches strongly support the key amendments in this group. Amendment 29, to which my noble friend Lady Thornton added her name, would ensure that the responsible body has a duty to make sure that the cared-for person or the person representing them in an advocacy, professional or other capacity fully understands the rights of the cared-for person for whom deprivation of liberty is proposed, and the rights to challenge. Those rights also include specifically the rights to an independent and professional assessment, to a review of the LPS arrangements, to advocacy and support and to be able to challenge the LPS authorisation in court.
The noble Baroness, Lady Watkins, made a strong case for rights to information to be on the face of the Bill, ably following on from the interventions of the noble Baroness, Lady Hollins, during its previous stages. She spoke on the importance of this issue, particularly in respect to people with learning difficulties, and the need, wherever possible, to take steps to increase the cared-for person’s capacity to understand what is happening to them and to have as much involvement as possible to help them determine their wishes and feelings.
Indeed, those of us who were heavily involved in the passage of both the Care Act and the Children and Families Act find it hard to understand the Government’s resistance to including in this Bill references to the rights of the person. During the passage of the two Acts, both noble Lords and Government firmly supported, for example, both Acts placing duties on local authorities to provide copies of the care assessment and information about mediation or appeals procedures to individuals and families. I look forward to the Minister explaining why these provisions were considered appropriate in two important previous Acts, but not when the crucial issue of deprivation of a person’s liberty is being considered.
Amendment 29 ensures that the crucial information is provided at the start, prior to the authorisation process. It also spells out the eight key considerations of the appointed IMCA in helping the cared-for person and/or the appropriate person understand the outcome of the LPS authorisation, what it means, why their liberty is to be deprived and what the rights of the cared-for person are.
The remaining amendments in this group reinforce the need to ensure that the statement and the key decision-making documents and records are made available to the cared-for person and their family, to all persons representing the cared-for person, and to those involved in the consultation process. This includes the care and support plan under Amendment 49, the authorisation record under Amendments 83, 85 and 86, the IMCA, the lasting power of attorney donee and the court-appointed deputy.
Finally, we strongly support Amendment 87 from the noble Baroness, Lady Finlay, which rightly addresses the circumstances where there is disagreement between relevant parties on any aspect of the authorisation. How disputes in these circumstances are dealt with is an important aspect to cover in the Bill, and to ensure the appointment of an independent AMCP to review the LPS arrangements and areas of disagreement. This is also with the provision that consideration be given to independent mediation prior to consideration by the Court of Protection.
Working together, we have made considerable progress on this Bill. Strengthening the Bill to uphold key rights and protections is vital. We know there is widespread concern, and unanimous support for information rights to be included in the Bill from the key charities, stakeholders and experts in this field, as the noble Baroness, Lady Watkins, spelled out. The Minister’s letter of 15 November asserts that the case for the “best” and “accurate” way of spelling out information and rights to access information is in the code of practice and, so far, his response to debates on this issue have just restated this belief, without addressing the compelling arguments that noble Lords have put forward. We need the rights outlined in Amendment 29 to be included in the Bill, where they would have full legal force.
My Lords, I first thank the noble Baroness, Lady Watkins, for introducing this group of amendments, both for her own speech and for representing the noble Baroness, Lady Hollins, as she does. I thank all noble Lords for their contributions. These amendments clearly relate to providing information to the cared-for person, which is a critical issue that we have debated throughout this Bill.
Amendments 49 and 85, tabled by the noble Baroness, Lady Finlay, require that the authorisation record must be provided to the cared-for person, or their representative, their donee of lasting power of attorney, or a court-appointed deputy, and also to the team providing care in the person’s place of residence. Amendment 83, tabled by the noble Baronesses, Lady Barker and Lady Thornton, specifies that the authorisation record must also include details of how the deprivation of liberty, or its effect on the person, will be reduced. I will deal with Amendment 29, the first amendment in this group, shortly.
I introduce these amendments in order to talk about less restrictive care. Less restrictive care is a central aspect of the new liberty protection safeguards, as a result of the necessary and proportionate assessment. This was emphasised by the Law Commission in its final report, which concluded that,
“integral to the question of whether the deprivation of liberty is proportionate (as well as necessary) is consideration of whether there is a less intrusive alternative”.
Less restrictive care is also a vital principle of the Mental Capacity Act—as set out in Section 1(5)—and therefore should be considered at all stages of the process. It is already considered as part of the current DoLS system.
Given the abiding role of “best interests”, as discussed in the last day of Committee, as a principle of the Mental Capacity Act, it does not need to be restated in the Bill. Indeed, our belief is that the liberty protection safeguards scheme will drive less restrictive care, as it will require the responsible body to specify a programme of regular reviews. This review should be triggered if there is a significant change in the cared-for person’s circumstances. Critically, this means that if there are practicable, less restrictive alternatives available, the authorisation will cease to have effect as the arrangements will no longer be necessary and proportionate.
Amendment 86, tabled by the noble Baronesses, Lady Hollins, Lady Thornton, Lady Jolly and Lady Watkins, would require the responsible body to ensure that the cared-for person, appropriate person and IMCA, or independent mental capacity advocate, are given a copy of the care plan as soon as possible and those consulted with should be provided with a copy unless there is good reason not to do so. As has been mentioned, this was discussed at every stage of the Bill, in the Chamber and outside it. I agree that it is vital that relevant people are given full information about the authorisation and the rights of a cared-for person, including rights to review and to challenge authorisation.
The key point, and the reason why we do not support these amendments, is that this is already the case in law, which clearly provides that people must be given appropriate information. This is required by Article 5 of the ECHR, as enacted into UK law by the Human Rights Act. Article 5(2) sets out that everyone deprived of their liberty must be informed promptly and in a language that he or she understands. This should set out the reasons for the deprivation of liberty. Where a person has been informed of the reasons, he or she may apply to a court to challenge the lawfulness of their detention in accordance with Article 5(4). It is plain from the wording of Article 5(2) that the duty on the state is to proactively provide specific information to the individual or their representative. Whether the information provided is sufficient must be assessed depending on circumstances, but, as a minimum, people must be given information in simple, non-technical language that they can understand.
It is also worth noting that the Law Commission’s draft Bill did not explicitly outline what information should be provided. The Government took forward the Law Commission’s approach, as we have been encouraged to throughout by noble Lords, because we are satisfied that Article 5 makes it clear that a person has the right to information. So while I have carefully considered whether the Bill should be amended to explicitly state what information should be provided, I believe that it would be better to set out specific details in the code of practice.
On the specific point from the noble Baroness, Lady Barker, about statutory codes of practice having to sit within a framework of law, the Human Rights Act, which enacts the ECHR into British law, provides the route into law. Therefore, I believe that the code of practice is the appropriate place and has that anchor in statute. Furthermore, it is appropriate to set this out in the code of practice because it will allow us to fully and accurately capture the detail of all the people who should be provided with information, exactly what information should be provided and how, and to be able to amend it without having to amend primary legislation over time.
One of the problems with the original DoLS legislation is that it is overly prescriptive. Indeed, this House found in its post-legislative scrutiny of the Mental Capacity Act that the provisions for DoLS were “overly complex”. These amendments set out, for example, who should be provided with the authorisation records, but they exclude others who might need the care plan, such as members of the care team providing support in the community, not in the person’s place of residence. We believe it is precisely that level of detail that is better set out in the code of practice.
Amendment 29, tabled by the noble Baronesses, Lady Hollins, Lady Thornton, Lady Jolly and Lady Watkins, specifically seeks to address this point. This amendment outlines that a person must be fully informed of their rights and ensure that appropriate persons and IMCAs understand their rights and duties. Further to this, Amendment 88, tabled by the noble Baroness, Lady Barker, would require the cared-for person and their representative to be informed, in addition to any person likely to be carrying out the arrangements, if their authorisation ceases to have effect.
I absolutely agree that it is vital that people are informed of their rights. Let me be clear that this Bill does not take away or amend any rights. Article 5 is already clear that people have a right to information. However, we want to use the code of practice, rather than the Bill, to outline how this applies. As I said, this is so that we can provide a level of detail there would simply not be appropriate in the Bill. We would also use the code to detail, for example, the role of the IMCA and/or the appropriate person’s role in the provision of information and ensuring that people are supported in understanding their rights.
In closing, I want to address Amendment 87 which supports, as it were, this set of amendments. As the noble Baroness, Lady Finlay, pointed out, Amendment 87 would require an approved mental capacity professional to complete an investigation where the relevant parties disagree over any aspect of an authorisation. If agreement is still not reached, it would require independent mediation. I agree with her that it is vital that the new system of liberty protection safeguards ensures that the voice of the person is heard and that there is an appropriate level of scrutiny in all authorisations. That is why we have been explicit that the person must be consulted with, as we will discuss later, and why, as a result of government amendments brought forward after listening to noble Lords, if there is no appropriate person acting as a representative, there is now in effect a presumption that an IMCA should be appointed. Again we will discuss that later. It is also why we have tabled amendments to remove conflict of interest and to make clear who should and who should not carry out pre-authorisation reviews.
So while the Government recognise the important role that mediation plays within the NHS, we do not believe that it is necessary to make it a compulsory feature of the system. There are fantastic systems of mediation already available, through private, public and charitable sectors; indeed, the noble Baroness gave us an example of a further initiative in this area. It is worth noting, on this point, that the Mental Capacity Act code of practice already provides guidance about mediation. In answer to her specific question, while we do not think it is necessary to have it in the Bill, I can confirm that guidance on the use of mediation will be in the code of practice and we will make sure that that is as up to date as possible and comprehensive in taking account of new schemes.
I will finish by saying that while I applaud and recognise the importance of the right to information, not just for the cared-for person but for everybody representing them, the Government’s view is that this is already adequately accounted for in law, so we do not need to set it out in the Bill. Indeed, it may be counterproductive to do so, by not being able to be comprehensive of every category of person. For that reason, I fear that we are not able to support these amendments.
Can the Minister confirm that, if the amendment in the name of the noble Baroness, Lady Watkins, is passed, it does not preclude the Government from setting out anything they like in the code of practice, at considerable length, to explain the detail of what information should be conveyed to whom and how? Does he agree that it might be helpful to have her amendment in the Bill, if only to bridge the rather large chasm between Article 5 rights and the code of practice? Would her amendment not be rather helpful?
On the noble Baroness’s first point, of course there is nothing to stop us setting out anything in the code of practice. The concern would be whether there would be a clash between what was set out in the Bill and what was set out in the code of practice or in Article 5. That is one of our concerns and it is for that and other reasons that unfortunately we are not able to support that amendment.
Does the noble Lord agree that one of the differences here between Article 5 rights normally and this group of people is that these are people who lack capacity to make their own decision, which is why they are being deprived of their liberty? They are particularly vulnerable and unable to speak up for themselves and depend on others. Therefore, if we have something in the Bill—and it may be that the wording in Amendment 29 is not right—brought back by the Government at Third Reading, we would know that there is an explicit right to information to be given to people when they lack capacity, as well as giving it to people when you have done everything to confirm that they have capacity for it.
I recognise the point that the noble Baroness is making. As I said, our belief is that the rights that currently exist, and are in no way amended or reduced as a result of the Bill, provide what she is asking for. Unfortunately, I am not able to give a commitment that we will be able to return to this issue at Third Reading.
I thank the Minster for his reply and thank all noble Lords who have spoken in support of this group of amendments. I do not believe that the Minister’s reply gives us sufficient security that if the information is contained only in the associated code patients and their families will be protected in the way that we have outlined. We firmly believe that the issue of information and, in particular, its provision in advance need to be in the Bill. It is therefore important that the House makes a statement to the Government about this issue, so I would like to test the opinion of the House.
27 November 2018
Division on Amendment 29
Amendment 29 agreed.View Details
30: Schedule 1, page 10, line 9, at end insert—
“11A_ The responsible body may authorise arrangements—(a) under paragraph 12, if the conditions in that paragraph are met, or(b) under paragraph 13 if—(i) the arrangements are care home arrangements,(ii) the responsible body decides that authorisation should be determined under that paragraph instead of under paragraph 12, and(iii) the conditions in paragraph 13 are met.”
Amendment 30 agreed.
I should notify the House that if Amendment 31 is agreed, I cannot call Amendment 32 by reason of pre-emption.
31: Schedule 1, page 10, leave out lines 10 and 11 and insert “The conditions in this paragraph are that—”
Amendment 31 agreed.
Amendment 32 not moved.
33: Schedule 1, page 10, leave out lines 14 to 16
My Lords, I am most grateful to the Government for having changed the role of the care home manager. All the changes in the Government’s amendments have been welcomed. Almost all of my amendments in this group have fallen away, but I seek reassurance from the Minister that the authorisation process will include inspection of the proposals and conditions as set down in the care and support plan. This is because the necessary and proportionate test can be understood only in the context of the way that the care will be provided and how it will meet the wishes and feelings, as well as important information gleaned from the consultation process. The helpful diagram that was attached to the Minister’s letter of 15 November shows the factors, but I am unclear how they will be contextualised for the authorising body without the authorising body having access to a copy of the care and support plan. It is for that reason that I decided to speak to this group of amendments. I hope the Minister will be able to give me reassurance. This is about the process whereby the authorising body will know that it has accurate information that will affect the day-to-day care of the person. I beg to move.
My Lords, like the noble Baroness, Lady Finlay, I do not intend to pay much attention to many of the amendments in this group because the Government made significant moves last week in relation to the role of the care home manager.
In relation to Amendment 121, I take this opportunity to raise again an issue I mentioned during our deliberations last week. There has been a great deal of talk about the Bill and the code of practice, but there has been very little said about regulations under the Bill. In particular, very little has been said about the functions of IMCAs in representing and supporting people under the schedule which are a bit different from the role of the IMCA in other circumstances under the rest of the Mental Capacity Act. Unlike DoLS, the Bill does not make detailed provisions for this or any regulations.
Can the Minister confirm whether amendments will be forthcoming in this area in relation to the functions of IMCAs? Specifically, will the Government look at amendments in relation to Section 35 of the Mental Capacity Act to place a clear duty on the responsible authority to make arrangements to enable IMCAs to be available and to represent and support cared-for persons under paragraph 36 of Schedule 1 to this Bill and in addition to support the appropriate person to fulfil their functions under paragraph 37? Can the Minister also confirm that the existing regulation power under Section 36 of the Mental Capacity Act will be extended to reflect the IMCAs’ function under the schedule?
A particular concern that has been raised with us by stakeholders is that there is no current reference in paragraph 36 to maintaining contact with the cared-for person and supporting their rights under the schedule. Given that the intention is that under the Bill authorisations will be made for much longer periods than was intended under the original Bill—longer than 12 months—it is rather important that someone who is acting in the role of an IMCA continues to have an ongoing involvement with that person. I understand why on this occasion it may not be entirely appropriate to put that in the Bill, but it is an issue of such significance that it might well come under the aegis of regulations.
I thank the noble Baronesses for speaking to the amendments in this group. Before I deal with their questions, I say to the House that I take note of the significant margin in the vote on the previous group of amendments. That is something that the Government will reflect on.
I am grateful for the recognition by the noble Baronesses of the progress that we made on the last day of Report in defining the care home manager much better. I am grateful to everyone who has contributed to that process; we have made progress.
I turn to the specific questions posed by the noble Baroness, Lady Finlay. She asked about determining that arrangements are necessary and proportionate and inspecting proposals, conditions and indeed the care plan. The preauthorisation reviewer—as we are about to discuss, we are tightening up who can carry out that role—will thoroughly scrutinise arrangements and need to satisfy themselves that they are necessary and proportionate. It is also worth saying that in making the determination they have the power, if they so wish, to meet the person to determine that, which clearly is important. There is another critical matter, although we will come to this when we talk about conditions so I do not want to pre-empt that discussion too much: in making an authorisation, the responsible body can also then set a timetable of regular reviews to take place so that there is a process of ongoing review to ensure that the “necessary and proportionate assessment” test is always being passed.
We also said—this deals slightly with one of the points that the noble Baroness, Lady Barker, was making—that if the responsible body is not satisfied that the care home manager is capable of fulfilling this function, they can take on the role of organising assessments themselves. That is, to use the phrase that we coined last time, a backstop that provides some reassurance that any variable quality in provision should not affect the process by which assessments are made and organised and the preauthorisation reviews carried out.
It is absolutely the case that responsible bodies will be able to demand to see care plans and care and support plans as part of their deliberations. That is something that they can ask for, and we would expect that they will provided because the whole point of the process that we are trying to move to is that decisions on and circumstances around deprivations of liberty are actually integrated into care planning and therefore ought not to be divisible in that sense. I hope that that provides reassurance, but if I can provide more by follow-up, I shall be happy to do so.
The noble Baroness, Lady Barker, asked some specific questions, which I shall need to consider, on the regulation-making power. I do not want to get that answer wrong without considering it, but we can meet in the coming days to ensure that she is reassured on that. A group of government amendments about IMCAs that we will discuss later provides greater reassurance on their role, in that, if they are agreed to, there will be a presumption in favour of an IMCA, removing the gatekeeper role that we have discussed. Also, the preauthorisation review will be carried out only by a responsible body, which must apply that presumption of access to an IMCA, so there will be much greater rights to advocacy on an ongoing basis.
The noble Baroness makes an excellent point about maintaining contact. As we move to a system of regular reviews, it is important to make sure that someone is alongside the cared-for person who can flag up any problems—for example, that a less restrictive care option is available, or that there is an objection. As we discussed, passive objections can materialise many weeks or months later. That ongoing role is clearly very important, whether it is for the IMCA or the appropriate person, the family member, or whoever. I give her the commitment that we will determine that in the code of practice.
I hope that I have answered the questions from both noble Baronesses and that on that basis, the noble Baroness will feel comfortable withdrawing her amendment.
I am most grateful to the Minister for that clear reassurance. I reiterate our gratitude that the Government decided to change the role of the care home manager, making most of the amendments in this group redundant. Therefore, I beg leave to withdraw the amendment.
Amendment 33 withdrawn.
34: Schedule 1, page 10, line 23, after “review” insert “, arranged by the responsible body,”
My Lords, the amendments in this group relate to the vital preauthorisation review process in the liberty protection safeguards system, which we have discussed on many occasions. Our intention, which is now clarified by the amendments, is that every application will undergo a preauthorisation review arranged by the responsible body and conducted by someone who is not involved in the day-to-day care or treatment of the person. That must happen before any authorisation can be given.
As we know, this review is essential, not only because every application will undergo one, but because it provides an early opportunity to address situations where someone may be receiving poor care or care in an inappropriate setting, or who are subject to poor care planning. This preauthorisation review, arranged by the responsible body, provides separation between those who will authorise the arrangements and those who carry them out.
Amendments 34 and 40 clarify that the preauthorisation review must be arranged by the responsible body. This was always the Government’s intention, but we are now being explicit about it. These amendments serve to reinforce the role of the responsible body under the liberty protection safeguards system, ensuring that all proposed arrangements undergo independent scrutiny.
We also expect the individual completing the preauthorisation review to consider issues which should act as red flags, such as if there has been inadequate consultation or a provider is seeking authorisation for particularly restrictive arrangements. This provides further protection for cared-for people in cases where the application falls short or has not been as thorough as it ought to have been. We will also expect the person completing the preauthorisation review to meet the person where necessary.
We are determined to work with the sector and set out the detail of how this is applied in a code of practice. This will set out when we expect preauthorisation reviewers to take further action and ensure that the code is consistently applied by different local authorities—an issue that has been raised before. Building on amendments tabled last week, this significantly strengthens the role of local authority oversight and intervention, and ensures the good quality of the new scheme.
Noble Lords will note that the amendment states the responsible body must “arrange” rather than “conduct” the preauthorisation review. The reason for this is to ensure that the person undertaking the review is not doing so as a representative of the responsible body. They must make their own professional decision. This is particularly important in cases where the responsible body also provides the care: for example, where the NHS is the responsible body.
Noble Lords have consistently raised the importance of independent and thorough scrutiny of arrangements, as well as the elimination of conflicts of interest. Amendment 73 makes it clear that the preauthorisation review cannot be completed by someone with a prescribed connection with a care home, such as a care home manager or member of care home staff. We will set out in regulations exactly who this covers. We will use the regulations to ensure that in England care home staff are unable to conduct preauthorisation reviews where they have a potential conflict of interest, and the Welsh Government will have the power to do the same.
Doing this in regulations allows us to provide the necessary detail and, given the complexity of the care home sector, will ensure that there are no loopholes. It will also provide a further opportunity for consultation with the sector, given the wide range of issues that will need to be considered. I am confident that these amendments strengthen the preauthorisation review process and in turn ensure that everyone’s arrangements receive proper, independent scrutiny. I beg to move.
My Lords, I think the Minister deserves our congratulations on having met all the conditions that we around the House said we believed were important. I am sure that the Government always intended to have some of these matters as part of the legislation, but making them explicit in the context of the Bill is helpful. Not least, it will be helpful to care home managers themselves, who will welcome the protections from unjust accusations of undue influence in future. On behalf of these Benches—and, I should imagine, others—we welcome that.
My Lords, I agree with the noble Baroness, Lady Barker, and welcome these amendments. As the Minister said, they are very important and deal with the issues of conflicts of interest and the preauthorisation review. I congratulate the Minister on navigating us to this point, and certainly we will be supporting the amendments.
My Lords, I am grateful to the noble Baronesses for their support. Of course, navigation of any ship requires a good crew, and I feel that we have one. I am very grateful for that support.
Amendment 34 agreed.
35: Schedule 1, page 10, line 32, at end insert—
“12A The responsible body may not authorise arrangements if an Approved Mental Capacity Professional has concluded that the arrangements should not be authorised.”
My Lords, Amendment 35 is a failsafe mechanism that will save a great deal of court time in the future and make it clear where the process has halted if things go awry. The failsafe is that an approved mental capacity professional—AMCP—can veto authorisation if the AMCP has grounds to object. However, it is important that the AMCP cannot authorise arrangements. In other words, the default position is to preserve liberty and not to impose restrictions on a person without a very sound reason. It is important that we are explicit about the extent of the AMCP’s powers, whether on the face of the Bill or in subsequent regulation, as we will need to be more prescriptive about these powers in the statutory code of practice than we have been to date, for the sound reason of flexibility and the independence of the AMCP.
The reason I tabled the amendment and feel it should be in the Bill is that there is a risk that local authorities facing financial stringencies might be inclined to authorise arrangements that are less costly, thereby revealing an inherent conflict of interest where a local authority is funding a person’s care. We have had many debates about conflicts of interest in relation to care homes but we must remember that in a whole-health and social care system which is under financial pressure, all kinds of little conflicts and pressures can creep in.
The other amendments in this group specify the different criteria whereby an approved mental capacity professional must conduct the review. I am not going to go through each line of these amendments—they are quite self-explanatory—but they show the importance of that degree of independence before taking the major step of imposing restrictions on somebody’s liberty and conditions under the new liberty protection safeguards process. I beg to move.
My Lords, I will speak briefly to Amendment 77 in my name, which was drawn up because of the experience of many relatives. I make particular reference to the case of Stephen Neary, where relatives had to deal with local authorities which were telling them wrongfully what their position was in law. A great deal of responsibility was put on to the relatives to oversee the right interpretation of the law. This amendment seeks to ensure that, where they are acting in the best interests of someone who is cared for, relatives would be able to meet an AMCP and trigger their involvement. In our earlier discussions, there was an underlying sense on the Government Benches that the involvement of professionals can often be an unwelcome intrusion into families. In fact, many of them do not find that at all. Many find that the first occasion when they come into contact with a professional is the point at which all sorts of information and understanding becomes available to them in support of their loved ones.
Although I am not seeking to press this amendment today, I hope that the Minister might think about it and, if he is disposed to do so, make some supportive statements.
My Lords, I will speak briefly to Amendment 46, which is in my name and supported by the noble Baroness, Lady Barker. It provides that the care home manager, or any person interested in the cared-for person’s welfare, is responsible for being satisfied that an AMCP should carry out a pre-authorisation review. The Committee has already discussed this and the important safeguards which we will be seeking come under Amendment 76A. Some of the important matters raised by the noble Baronesses, Lady Finlay and Lady Barker, have been addressed by the Minister in the Government’s amendments. I look forward to his reply.
I am grateful to the noble Baronesses for tabling these important amendments. It is critical to get right the role of approved mental capacity professionals and when they should review cases under the liberty protection safeguards system. AMCPs will be a vital part of the system. They will be qualified, knowledgeable and experienced professionals. It is intended that they will act independently, both of the care provider and the responsible body, and that they will make a determination on proposed arrangements after meeting the person and reviewing relevant information.
Amendment 35, tabled by the noble Baroness, Lady Finlay, explicitly prevents the responsible body overriding a determination of the AMCP. The responsible body is responsible for approving the authorisation, but an AMCP is required to complete the pre-authorisation review if it is reasonable to believe that the person objects to the arrangements. The AMCP can also conduct the pre-authorisation review in other cases. Where an AMCP conducts the pre-authorisation review they will determine whether the authorisation conditions are met.
The critical issue here is the consequences of the AMCP determining that the authorisation conditions have not been met. We are absolutely clear that the responsible body should follow the AMCP’s determination, and indeed any responsible body that did not do so would be taking on a significant legal risk. The responsible body might believe that it has a good reason to disagree with the AMCP’s assessment, but in that case the proper course of action would be to discuss this with the AMCP. If the responsible body then tried to override the AMCP’s decision, we would expect the AMCP to raise concerns—first, with the responsible body itself. If the local authority is the responsible body, the concern can be escalated to the Local Government Ombudsman, and if a CCG is the responsible body, it can be escalated to the regional director of commissioning in NHS England. Concerns regarding NHS organisations and independent hospitals can also be raised directly with the CQC in England or Health Inspectorate Wales. Therefore, I hope that noble Lords are reassured that mechanisms are in place to stop any unjustified behaviour on behalf of responsible bodies.
Amendment 77, tabled by the noble Baronesses, Lady Barker, Lady Finlay and Lady Jolly, makes explicit that a pre-authorisation review must also be conducted by an approved mental capacity professional if relatives or those with a genuine relationship to the person object to the arrangements, if there is restriction on contact, if the care home manager or responsible body considers the case to be exceptional, or if the arrangements are for mental disorder or the arrangements include covert medication.
The Government agree that families and carers play an important role in liberty protection safeguards. As the people who know the cared-for person best, they will often know what the person’s wishes and feelings are and whether they do, or would, object to what is being proposed. The Bill already states that a pre-authorisation review must be completed by an AMCP if there is a reasonable belief that a person objects to residing in or receiving care and treatment at a particular place. We are clear that an objection raised by someone with an interest in the cared-for person’s welfare can also give rise to a reasonable belief that the person objects, and this will be confirmed and clarified in the code.
We all agree that deprivation of liberty is a serious matter, especially when accompanied by measures such as high levels of restriction, covert medication and restrictions on contact. Such measures should be put in place only following a best-interests meeting and in some cases will require a court application. This is confirmed in the current MCA code of practice and will continue to be a key aspect of the new code.
I agree that in some circumstances such cases should be considered by an approved mental capacity professional. The Bill expressly allows for a pre-authorisation review to be completed by an AMCP in other cases, as is clear from paragraph 19(1). However, although the Bill is clear about how the lodging of an objection will lead to a review by an AMCP, I have heard clearly from noble Lords and stakeholders that there is a concern about referring appropriate cases to an AMCP. I hope that noble Lords will be glad to hear that I have been persuaded that we need to clarify on the face of the Bill that other cases can be referred to an AMCP.
In the previous day on Report, I stated that we would revisit, in the Commons, the issue of referral to AMCPs, specifically regarding those in independent hospitals. I can now confirm we will be looking at this issue more widely, including the specific concerns raised in the debate and in the amendment, as part of our considerations for government amendments in the other place. I look forward to working with all noble Lords to make sure that we get this right.
I turn briefly to Amendment 46 in the names of the noble Baronesses, Lady Thornton and Lady Barker. The amendment would mean that in care home cases the statement to the responsible body must indicate whether any person interested in the person’s welfare is satisfied that the person does or does not object. I understand that the intention here is to create a mechanism for those with an interest to be able to raise objections. I have already said that the Bill specifies that the statement must reflect any consultation that has been completed with those with an interest in the cared-for person’s welfare, and our later amendments will also make it explicit that that includes the person themselves under the “duty to consult” government amendments. The IMCA and the appropriate person will also have a role in reflecting these concerns.
To conclude this group of amendments, Amendment 104 states that a review is triggered if a person with an interest in the cared-for person’s welfare has raised concerns. As I said, that will be the case. Amendment 109 would change the Bill to reflect the effects of Amendments 34 and 104.
I hope that in answering points raised on these important issues, I have been able to give two kinds of reassurance. The first is that the process of triggering a review will be clearly set out. The Bill as it stands, as well as amendments that we are making, will mean that anybody with an interest in a person’s welfare will be able to trigger a review and that will lead to a consideration by an AMCP. Secondly, in the rare cases where there is a dispute between an AMCP and a responsible body, there will be avenues to escalate such a disagreement to mediation and resolution.
Furthermore, we are determined to get the role of the AMCP right. We think it is necessary to go beyond specifying that those in independent hospitals can see an AMCP and to think of other cases as well, and we are intending to bring forward amendments at the Commons stages of the Bill. I hope that that provides the reassurance that the noble Baronesses are looking for and that the noble Baroness, Lady Finlay, will be prepared to withdraw her amendment.
I think I can speak on behalf of all noble Baronesses who had their names on these amendments. We are most grateful to the Government for listening and find all that the Minister said in his speech in response to this group of amendments reassuring and positive. We look forward to working with the Government as these new criteria evolve. I beg leave to withdraw the amendment.
Amendment 35 withdrawn.
36: Schedule 1, page 10, leave out line 33 and insert “The conditions in this paragraph are that—”
Amendment 36 agreed.
Amendments 37 to 39 not moved.
40: Schedule 1, page 11, line 1, after “review” insert “, arranged by the responsible body,”
Amendment 40 agreed.
41: Schedule 1, page 11, line 9, after second “statement” insert “in writing”
My Lords, the amendments in this group provide clarification regarding the form of the statements provided by the care home manager to the responsible body. I thank noble Lords and others outside the House who highlighted some issues that these amendments attempt to address.
Amendments 41 and 96 outline that the statements provided by the care home manager to the responsible body under paragraphs 14 and 28 must be in writing. This issue was rightly raised by the noble Baroness, Lady Barker, and others at Second Reading and in Committee. It has always been the Government’s intention that the statement be a written one, and I gave assurances to noble Lords during Committee that the Bill would be updated to be explicit on this.
Passing these amendments, though simple and straightforward, is important, because it will mean that care homes are not able to provide statements over the telephone, as sometimes happens now. This is a valid concern about the future system. The amendments will help to ensure the quality of assessments and pre-authorisation reviews, and that there will always be a written record of the basis for decisions. It is vital that statements be in writing in order for a thorough pre-authorisation review to be completed and for proper evidence of assessments and consultation to be provided.
Under the current DoLS system, care homes are required to complete a “form 1” when making an application. We envisage that under the liberty protection safeguards there will be a similar form, updated and tailored to the new system. I hope this amendment makes it clear to all noble Lords that the Government do not want to see any weakening of safeguards as a result of our reforms.
Amendments 47 and 59 clarify that the necessary and proportionate test is based on an assessment, and that the care home manager’s statement under paragraph 14 must be accompanied by a record of that assessment and a record of the medical and capacity assessments. This was always the Government’s intention. Its omission was a simple drafting error, for which I apologise and which we are now rectifying.
I hope noble Lords will be able to support these minor but vital amendments, which will clarify how the system works in practice. I beg to move.
My Lords, at Second Reading I said that there was much to be concerned about in this Bill and that I really hoped the Government would be in listening mode. For the most part, the Government have listened and have made improvements, thanks to the willingness of the Minister and Bill team to listen and to the hard work and commitment of noble Lords on all sides of the House, who have pursued improvements with all the energy they could command.
Government Amendments 41 and 96, requiring a care home manager to provide a written statement to the responsible body to authorise and renew arrangements, seem pretty obvious. Most of us would think that it is common sense to provide a statement in writing, but my late mother would often lament that I would find that, in life, sense is not that common. We certainly welcome these amendments.
The same applies to Amendments 47 and 59, which will ensure that the determination that arrangements are necessary and proportionate is to be made in an assessment, and that a record of this assessment must accompany the statement from the care home manager to the responsible body before an order to authorise arrangements is made. This is also most welcome. On this side, we certainly welcome these amendments.
My Lords, I also welcome these amendments and want to make a brief observation. Since the summer, like many other noble Lords, I have spent a great deal of time talking to practitioners and stakeholders. If one were to try to thoroughly amend and improve the DoLS and LPS systems, you would start not with the role of the care home manager but with the paperwork and the bureaucracy. Before the code of practice is written, the Government would do well to spend some considerable time talking to local authorities and practitioners about paperwork and communication, because that is perhaps the biggest cause of the backlog of people who have yet to have a proper assessment.
I hope that the Minister will take on board what noble Lords have said on this matter. It is not a commitment to the current way of doing things; rather, although noble Lords are committed to ensuring that people are sufficiently informed, we are not averse to changing and modernising the systems to make them work more efficiently.
I am grateful to the noble Lord, Lord Touhig, and the noble Baroness, Lady Barker, for their support for these amendments.
I want to reflect on the last point made, which is very important. The reference is to a written statement, which tends to bring to mind a piece of paper, but of course what we are really talking about are digital records. A great deal of thought has to be put into whether a paper system—or digital records—passing back and forth is the best way to go about this, or whether we can make a technological intervention. That is particularly true if we want these authorisations to be much more dynamic, so that their consistency and application can be assessed over time. There might be technological interventions we can make to make that process easier. I take that advice on board. We will absolutely talk to local authorities, cared-for people, their representatives, charities and others in making sure that we do it right. Noble Lords will be aware that the Secretary of State is a true technophile, and I imagine he would relish the opportunity to inject a bit of innovation into this area to make everyone’s life easier. I will take that point forward.
Amendment 41 agreed.
Amendment 42 not moved.
Amendments 43 and 44
43: Schedule 1, page 11, line 18, at end insert “and”
44: Schedule 1, page 11, leave out lines 19 to 21
Amendments 43 and 44 agreed.
Amendments 45 and 46 not moved.
47: Schedule 1, page 11, line 32, leave out “paragraph 15” and insert “paragraphs 15 and 16”
Amendment 47 agreed.
Amendments 48 to 50 not moved.
51: Schedule 1, page 11, line 44, leave out “is of unsound mind” and insert “has a mental disorder”
Amendment 51 agreed.
52: Schedule 1, page 11, line 44, at end insert—
“(1A) An assessment must be carried out by a person who appears to the relevant person to have appropriate experience and knowledge.(1B) But if the arrangements are care home arrangements and authorisation is being determined under paragraph 13, an assessment may not be carried out by a person who has a prescribed connection with a care home.(1C) Regulations made by the appropriate authority under sub-paragraph (1B)—(a) may make provision about a connection of any kind (financial or otherwise), and(b) may make different provision for assessments under paragraph 15(1)(a) and paragraph 15(1)(b).(1D) The “appropriate authority” means—(a) where the assessment is in relation to an authorisation by an English responsible body, the Secretary of State, and(b) where the assessment is in relation to an authorisation by a Welsh responsible body, the Welsh Ministers.”
Amendment 53 (to Amendment 52) not moved.
Amendment 52 agreed.
54: Schedule 1, page 11, line 46, leave out from “appears” to end of line 1 on page 12 and insert “to the relevant person”
Amendment 54 agreed.
I remind the House that having agreed Amendment 54, I cannot call Amendment 55 for reasons of pre-emption.
Amendments 55 and 56 not moved.
Amendments 57 to 59
57: Schedule 1, page 12, line 3, leave out “care home manager or responsible body” and insert “relevant person”
58: Schedule 1, page 12, line 9, at end insert—
“( ) In this paragraph “relevant person” means—(a) the care home manager, if the arrangements are care home arrangements and authorisation is being determined under paragraph 13, or(b) the responsible body, in any other case.”
59: Schedule 1, page 12, line 11, at end insert “made on an assessment”
Amendments 57 to 59 agreed.
60: Schedule 1, page 12, line 12, after “necessary” insert “to prevent harm to the cared-for person”
Amendment 60 agreed.
61: Schedule 1, page 12, line 12, at end insert “and that the arrangements will continue to be necessary and proportionate for the period of time for which the arrangements are sought.”
My Lords, Amendments 61 and 67 return to two issues that I and the noble Baroness, Lady Finlay, raised at earlier stages in our debates.
Amendment 61 pertains to what happens when the circumstances or condition of a person deprived of their liberty change. As we have said on previous occasions, that may be someone with dementia whose condition deteriorates or, as in the cases cited by the noble Baroness, Lady Finlay, it could be someone with a brain injury whose condition improves and who regains some of their capacity. It is the intention under the Bill that deprivations of liberty will last considerably longer than under current circumstances.
I seek an assurance that there is an ongoing duty on care home managers and those responsible for arranging and carrying out assessments to revisit people whose conditions are likely to change to ensure that their detention is still the least restrictive option.
In Amendment 67, I use the word “conditions” in a completely different sense. As has been said, under DoLS people carrying out assessments and authorisations have the right to say that it would be in order to detain someone and deprive them of their liberty provided that certain conditions are met. The noble Baroness, Lady Finlay, has given us memorable examples of what those conditions might be. However, in truth, the most common condition concerns medication and reviews of medication.
The Government have consistently said that the Bill does not alter that—and that, as ever, the matter will be dealt with in the code of practice—but I am simply asking for a statement from the Minister setting out the legal force by which it will be possible in future for those who are responsible for depriving people of their liberty to do so on the basis of conditions which must be met. The importance of those conditions— particularly when we talk about DoLS in the community —is that they can make something a least restrictive option and therefore admissible.
It is for that reason that I have returned to these two amendments today, and I beg to move.
I have added my name to Amendment 61 because it is important that we recognise that no one has a crystal ball—we cannot predict what is going to happen. Even people we think might be seriously impaired, as the noble Baroness, Lady Barker, said, can sometimes improve and it can be quite unexpected.
It is inconceivable that the course of a person’s illness will match the timetable of annual reviews—that is not the way bodies behave when they have an impairment; if someone does not improve within an expected time frame, they must be reassessed. Otherwise, there is a real possibility that they will languish with inappropriate restrictions on their liberty when such restrictions are no longer necessary or proportionate. In fact, in the case of medication reviews, they may have become inappropriate because they may be on medication that is unnecessarily a sedative.
Of course, those who deteriorate will also need phased authorisations and reviews. Without the Government laying out explicitly this degree of uncertainty in the timeframe and the fact that wherever there is expected to be uncertainty, it should be specified, I fear that there will be pressure to define the amendment’s principle by going to court. We will then end up with a court precedent that is not necessarily applicable to a lot of people, but which they will get caught up in anyway. We will end up with a risk-averse response. I hope the Government will be able to accept, if not the actual wording of the amendment, the principle that the timeliness and the timeframe need to be specified wherever possible to avoid that confusion.
My Lords, I was pleased to add my name to Amendment 67 in the names of the noble Baronesses, Lady Barker and Lady Jolly, because it would allow the responsible body to specify the set of conditions on the deprivation of liberty to determine that the arrangements are necessary and proportionate and that those conditions are complied with.
Throughout the Bill’s stages, the noble Baronesses, Lady Barker and Lady Finlay, have been consistent on the importance of conditions. Of course, these things make the deprivation of liberty from the patient or cared-for person either tolerable—that is, understandable—or really horrible. I have been very impressed by some of the examples explained by the noble Baroness, Lady Finlay. It is important that these conditions are not only set, but met, monitored and changed when circumstances change. We seek assurance that the legislation, regulations and conditions will make that happen.
My Lords, I reinforce what has been said about the importance of conditions and the difference that they can make to both quality of life and the tolerability of the regime to which the looked-after person is subject. I read about how some of the conditions might be things such as helping the looked-after person to sit in the care home’s garden every day or be taken out once a week, as well as how vital these conditions are to ensuring that the decisions taken are the least restrictive. We can all relate to these important things. It is important that there is provision for such conditions to be set out.
I thank the noble Baronesses for introducing their amendments and giving us the opportunity to discuss this important issue. I will set out why the Government have taken a different approach and attempt to explain it.
It is not that we do not think conditions are important. The use of conditions should be baked into the care plan and the arrangements put forward for authorisation, rather than being added only at the point of authorisation. This is not to say that the conditions—let us call them the elements of the arrangements—pointed out by the noble Baroness, Lady Tyler, and other noble Baronesses are not critical. Obviously, they are critical to making sure that the elements are the least restrictive. This is about when they are put in place in the care planning and authorisation process. I shall explain our approach, which I hope will satisfy noble Lords, but we can see whether further discussions are required.
I will deal with the amendments in order. Amendment 61 states that it should be determined by the responsible body,
“that the arrangements will continue to be necessary and proportionate for the period of time for which the arrangements are sought”.
We absolutely agree that this should form part of our model and I confirm that this will be considered by the responsible body.
Furthermore, under the Bill, the responsible body is required to specify a programme of regular reviews at the point of authorisation. In a sense, it gets to specify at the point of authorisation how frequently reviews should take place, to seek whether changes in arrangements or other changes have taken place. This means that the care home manager—or the responsible body, if they are carrying it out directly—will be continually required to consider whether arrangements are necessary and proportionate. That is baked into the system we are introducing.
Amendment 67 specifies that conditions can be put on authorisations and, of course, conditions exist under the current DoLS system. However, with the backlog, by the time they come into force, it is often too late, because the person has been subject to the arrangements for some time before the conditions can be applied. In developing the liberty protection safeguards system, we have taken a different approach; for that reason, conditions have not been included in the Bill. Again, it is worth pointing out that this is consistent with the approach adopted by the Law Commission, which concluded that conditions, as currently provided for under the DoLS system, were not necessary under its new scheme. The Law Commission’s final report states on page 112 that, instead of DoLS conditions, the scheme,
“focuses on particular arrangements and what will be authorised are very specific arrangements. Further, it is only arrangements which result in the minimum amount of deprivation of liberty possible that will be authorised, otherwise the necessary and proportionate condition will not be met. So the arrangements will need to be described in a way which builds in any conditions”.
In other words, arrangements under the Bill can be detailed in such a way as to have the same effect as conditions. For example, the authorised arrangements could include enabling the person to be taken out on trips with one-to-one support, or their care plan could specify that additional staff should be provided to enable the person to be taken out more frequently.
It is our view that doing this provides greater protections for the person. This approach means that conditions—or, if noble Lords prefer, specific arrangements—are considered as part of care planning, before an authorisation is sought, rather than being bolted on afterwards. Rather than being something that happens after the person is deprived of liberty, they would be an integral part of care planning, with the proposed arrangements submitted to the responsible body for review.
Notwithstanding this approach, I know the noble Baroness, Lady Barker, is keen to have a statement from me about current practice, under which a DoLS lead, or best-interests assessor, can insist that deprivation of liberty is authorised only if stated conditions are made. We are not proposing to change the ability of the responsible body, whether the responsible body itself or an AMCP, to make conditions as part of an authorisation. It will still be possible for that to happen. We are trying to ensure that the decision on appropriate conditions is made earlier in the care-planning process, so that they are incorporated into the arrangements that are then put to the responsible body for review, rather than being added when the review takes place. Failure to comply with these conditions, specifically because they have been within the authorisation, would mean that the authorisation would cease to have effect, and must be reviewed. There we come to the ongoing important role that appropriate persons, IMCAs and others will have, in making sure the person is supported, so that if there are any changes in their condition, or their circumstances, a review is triggered.
I recognise this is a fiendishly complicated thing to describe, and I have probably done a fairly inadequate job of it. However, I strongly believe that, in making this change, we are not trying to remove conditions, but move the concept of applying conditions to earlier in the care-planning process. That is the right thing to do. The responsible body will continue to be able to add subsequent conditions if it feels it is necessary for an authorisation. I genuinely believe that is a better system. Clearly, the proof of the pudding will be in the eating. On how this will happen in practice, there will need to be clear guidance and training to make sure that people are trained to do this, both at the care home, and in other NHS bodies, and to make sure that reviewers are capable of assessing such arrangements and making their own subsequent conditions, if they feel it is necessary. That guidance and training is something we aim to provide, of course.
I hope I have explained why we take the point the noble Baronesses made in tabling these amendments very seriously, and shown that the system allows for it. It puts this consideration earlier in the planning process, we hope with better effect. We have been guided by the Law Commission’s approach in this way. I hope this has been persuasive, but if further discussion and elaboration is needed, I would be more than happy to give it following today’s debate.
I thank the Minister very much for his response. We are arguing not about two opposites but about a gap that I am trying to close, the answer to which lies in why conditions happen. They happen not necessarily because of any failure of care planning, which I think the Minister is talking about, or to improve care planning, but because in real life people end up being cared for in a particular place. Things to which they object or limitations in their care become apparent at the point at which someone goes to do the authorisation.
I am all in favour of improving personalised care planning and so on, but the one thing that DoLS and best-interests assessors have been absolutely united in saying is that this makes a practical difference when they go to see people. I am very happy that the Minister said that it would still be the responsibility of a responsible body to make sure that conditions are being met, and that, if they were not or if it became apparent that further conditions needed to be put in place, they would still be able to do so. With that reassurance, I am content that we have probably closed the gap that I was trying to close. On that basis, I am willing not to press the amendments.
Amendment 61 withdrawn.
62: Schedule 1, page 12, line 12, at end insert “in relation to the likelihood and seriousness of harm to the cared-for person”
Amendment 62 agreed.
63: Schedule 1, page 12, line 12, at end insert—
“( ) When making a determination under this paragraph regard must be had (amongst other matters) to the cared-for person’s wishes and feelings in relation to the arrangements.”
My Lords, before introducing these amendments, I thank the noble Baroness, Lady Barker, for accepting my explanation on the previous group. I am conscious that we need to explain this in more detail, but I am grateful to all noble Lords and to the noble Baroness, Lady Thornton, for not pushing this point. This is something that we can clarify to get to a better system.
The amendments in this group are clearly central to the Bill, because they are all about putting the cared-for person at the centre of the new liberty protection safeguards. Noble Lords have been at pains to highlight a concern that the cared-for person is not listed explicitly as a person to consult. That has clearly always been our intention, but it is nevertheless quite right that that should be explicit in the Bill.
Amendment 71 clarifies that the cared-for person must be consulted as part of the consultation under new paragraph 17. Amendment 63 sets out that the person’s wishes and feelings must be considered as part of the determination that the arrangements are necessary and proportionate. Amendments 110 and 111 update other parts of the Bill to reflect the new explicit consultation requirement and to make some other minor drafting changes.
The consultation required by the Bill is important in establishing the cared-for person’s wishes and feelings, and identifying objections to the arrangements. It is also an important way of involving the person and their families in the process, and making sure that the liberty protection safeguards authorisation is something that happens not just to them, but with them. It has always been our position that the person should be consulted, but it is quite right that we set this out explicitly. Through these amendments we have also been explicit that the person’s wishes and feelings must be considered as part of the necessary and proportionate determination.
Briefly, Amendment 68, tabled by the noble Baronesses, Lady Finlay and Lady Jolly, would also ensure that this point is considered. I hope they will feel that the Government’s amendments have dealt with their issues and that they will feel happy not to press their amendments.
I am looking to the noble Baroness, Lady Jolly, because I am sure she will agree with me. I am grateful and happily give way to the government amendment, which does what we wanted to do. We will not do anything with our amendment. I thank the Minister for his clarifications.
I thank the noble Baroness for her agreement. I beg to move.
Amendment 63 agreed.
Amendment 64 not moved.
Amendments 65 and 66
65: Schedule 1, page 12, line 15, after “arrangements” insert “and authorisation is being determined under paragraph 13”
66: Schedule 1, page 12, line 18, at end insert—
“(3) If the arrangements are care home arrangements and authorisation is being determined under paragraph 13, an assessment may not be carried out by a person who has a prescribed connection with a care home.(4) Regulations made by the appropriate authority under sub-paragraph (3) may make provision about a connection of any kind (financial or otherwise).(5) The “appropriate authority” means—(a) where the assessment is in relation to an authorisation by an English responsible body, the Secretary of State, and(b) where the assessment is in relation to an authorisation by a Welsh responsible body, the Welsh Ministers.”
Amendments 65 and 66 agreed.
Amendments 67 and 68 not moved.
69: Schedule 1, page 12, line 21, after second “arrangements” insert “and authorisation is being determined under paragraph 13”
Amendment 69 agreed.
Amendment 70 not moved.
71: Schedule 1, page 12, line 24, at end insert—
“(za) the cared-for person,”
Amendment 71 agreed.
Amendment 72 not moved.
I remind the House that if Amendment 73 is agreed I cannot call Amendment 74 because of pre-emption.
73: Schedule 1, page 13, line 3, leave out from “must” to end of line 5 and insert “not be by—
(a) a person who is involved—(i) in the day-to-day care of the cared-for person, or(ii) in providing any treatment to the cared-for person, or(b) a person who has a prescribed connection with a care home.”
Amendment 73 agreed.
Amendment 74 not moved.
Amendment 75 had been withdrawn from the Marshalled List.
76: Schedule 1, page 13, line 15, at end insert “, or
(c) there is dispute between the responsible body and the registered health or social care professional who has carried out the review under paragraph 20.”
My Lords, I declare an interest. Some years ago I was involved in helping the police prosecute people who were responsible for care but who were delivering terrible abuse in what was then termed an EMI home. A care assistant, encouraged and supported by her friend who worked on the domestic side, thought, “This wouldn’t be good enough for one of my relatives”. As we explored the cases, families in their statements commented on all they had noticed but said they did not feel able to raise concerns, let alone complain. They feared that their relative in the home would be victimised if they said anything or raised any questions. It was case records that revealed repetitive patterns of entry that gave the clues to support the statements that relatives gave to the police and provided evidence against those abusing these people, which led to a successful prosecution. The Minister has already said that the triggers for an AMCP review will be expanded. We look forward to working with him and officials on this. That should cover Amendment 76 when there is a dispute. Amendment 74 has, of course, fallen through pre-emption.
I shall focus on Amendment 76A, because it supports the whistleblower and ensures an independent review. Without that, we will fail those who need protection and leave whistleblowers with no option other than to stay silent and say nothing—or, if they can pluck up the courage, go to the CQC or the police, with all the disruption, expense and risk of losing their job that that involves. It would also mean a delay in alerting when things are not as they should be. The other amendments in this group concern other ways of triggering a professional expert review. I know that we have legislation designed to protect whistleblowers, but for domestics—cleaning and kitchen staff—and care assistants, who are often those who spend most face-to-face time with people, who need the job and may not be able to find alternative employment where they live, it takes enormous courage to say that things are not right. Sadly, it is more courage than many people can pluck up.
A Guardian report, published on Friday, cites examples of “terrible indignity and neglect” in for-profit care homes across the country. Whistleblowers have risked their jobs and livelihoods to report cases of,
“inappropriate and disproportionate use of physical restraint”,
on residents with autism, and carers failing to manage medicine safely. In this article, Eileen Chubb, founder of Compassion in Care—a charity that campaigns on behalf of whistleblowers for better levels of care—was quoted as saying:
“We have seen first hand the appalling consequences of poor care … company after company making millions whilst on the frontline vulnerable people are left without the basics to sustain life”.
Carers who break the silence surrounding abuse, such as the whistleblowers at the home cited, deserve protection.
Even if a care home is a good home and receives a good rating from a CQC inspection, relatives may visit only intermittently and may not be aware that the care that they think is being given to their relative just is not happening for them. They will not be aware of the minute-to-minute, hour-to-hour aspect of a person’s care. It is the staff there for hours on end who can benchmark that care. They may realise that the person has become increasingly withdrawn and increasingly less communicative, and perhaps cries at night and seems very unhappy. The staff must confidently be able to ask for a review without prejudice.
This amendment will play an important role in giving protection both for residents and for those who call for a review. It calls for a review because it is far less threatening for somebody who has a concern to be able to ask for an independent review from an AMCP who can come in and assess what is going on—they do not feel that they need the body of evidence to make an accusation of malpractice. That is why this should be in the Bill, even if all the other ways of triggering a review are consigned to the code of practice. I feel quite strongly that when staff feel that something is not right and want to say so but their seniors are not recognising it, they must have the ability to protect the cared-for person, because the cared-for person is so vulnerable. I beg to move.
My Lords, right from the beginning of this Bill—at Second Reading and in Committee—concerns have been expressed across the House about how the interests of the cared-for person can be ensured through the process of using the AMCP when that person is at their most vulnerable and may not be articulate at all. The noble Baroness, Lady Finlay, articulated exactly what we are saying. Amendment 76A, in my name and those of the noble Baroness, Lady Barker, and the right reverend Prelate the Bishop of Oxford, is an essential fail-safe that we believe needs to be in the Bill.
Like the Minister, we have sought across the House to prioritise the issues that we thought were most important for the cared-for person. I think we have come through rather well in improving this Bill together, and mostly without having to resort to Divisions. I hope that the Minister will accept Amendment 76A, because it is certainly in line with the aspirations that he has expressed to the House about safeguarding the cared-for person. If he is not prepared to do that, certainly on these Benches we hope that the noble Baroness, Lady Finlay, will seek the opinion and support of the House, because it is certainly there.
My Lords, it has been a concern of all noble Lords who have taken part in discussions on the Bill that a person could be deprived of their liberty without seeing an appropriate professional at any time. We have argued back and forth about the extent to which access to an appropriate professional should be universal, automatic or whatever.
With this amendment, the noble Baroness, Lady Finlay, and those of us who have attached our names to it are trying to ensure that where the people who are most closely associated with a person have a genuine and deep concern—I imagine it would be a shared concern—but not necessarily a formal role, they can alert a professional to come in and make an assessment. We are trying to close a loophole that we think is still there.
If we can do that, we will be well on the way to doing what the Minister has indicated the Government are trying to do: to make the most effective and efficient use of professional resources amid a level of demand which we know cannot currently be met. We have moved some way from what we would ideally like to see and this amendment represents something of a compromise. I hope we can reach agreement on this last part of the link.
I am grateful to the noble Baronesses for tabling these amendments and giving us the opportunity to debate this very important issue. I will come to Amendment 76A last, because clearly that is the one about which there has been the most debate and, in a sense, has the most import. First, I will deal briefly with the other amendments in the group.
Amendment 81 would require the person who conducts the pre-authorisation review to be a,
“registered health or social care professional”,
with appropriate skills, knowledge and experience. I think and hope that we dealt with that adequately on our previous day on Report. Those qualifications will be set out in the code of practice. Indeed, we might want to go more broadly than we have done historically on this.
Amendment 76 would require that where there is a dispute between the responsible body and the professional who completed the pre-authorisation review, it would automatically go up to an AMCP. I agree that in some cases that would be the right and prudent thing to do. In other cases, it may be able to be resolved between the two parties. Again, we dealt with that before and it is something I want to consider in our deliberations about the kinds of cases that an AMCP would look at.
The debate on Amendment 76A has been helpful in bringing out the core concern here: the role of whistleblowers. We have talked about the cared-for person, their family members, the appropriate person, IMCAs and others, but this is about the people who are doing the caring or who are employed by the organisation or organisations that are doing the caring. It is absolutely right—indeed, the Bill requires—that an AMCP must conduct a pre-authorisation review if there is a reasonable belief. Clearly, a note of concern being raised by a staff member would qualify because they would have understanding and knowledge of the care of that person.
Last week we had a Statement on the Gosport inquiry, in which the health system not listening to whistleblowers was critical in these issues not being dealt with for years and people losing their lives as a consequence. As the Government said in response to that, we are working with BEIS—the department with responsibility for such legislation—to see if there is anything we can do to strengthen the rules around whistleblowers. I take very seriously the concerns that have been raised by noble Lords. As I said, with Gosport and indeed many other instances, whether they involve one person or, sadly, dozens of people, this kind of issue crops up again and again. I understand its importance.
The concern I have at this point actually relates to the drafting. Because it would provide an automatic trigger, rather than one that gave some consideration to the seriousness of the case, there is a risk that it could be abused or that frivolous cases could be raised and put to an AMCP when it was not really justified. That is, in a sense, an issue with the drafting
I want to deal with this if we can. My suggestion, if noble Lords are willing, is to meet between now and Third Reading to discuss this topic—as well as any others we want to discuss, of course—to work out the right approach. This would enable us to get to the bottom of it, work out what is right and think about that in the context of other whistleblowing issues, of which we are all aware. It would ensure that if we all agree on the need to legislate, we can agree on what that ought to look like. Again, I emphasise the importance with which I regard this issue. I hope and believe that we can do something in the coming days to deal with it in a way on which we all agree, while having the effect that we want. On that basis, I hope that the noble Baroness is prepared to withdraw her amendment.
I am most grateful to the Minister for realising the seriousness of this issue and that our current whistleblowing policies are inadequate. I do not share his concern about vexatious reporting because if you got such reporting from a staff member, it would be pretty obvious pretty quickly. The review would have happened and if one person is better protected, it is far safer than many people being inadequately protected. I accept that my drafting—I am grateful to the Public Bill Office—may not be perfect and because the Minister will come back to this at Third Reading, we will have a meeting and then be able to bring back an amendment.
May I seek clarification from the Minister? He said that he would come back to Amendment 76A. Is this about Amendment 76 or Amendment 76A?
It is Amendment 76A.
I am grateful to the noble Baroness, Lady Thornton, for clarifying on the record that we are talking about Amendment 76A. With the caveat that the meeting will include all of us who have been involved in and feel so concerned about this matter, I will withdraw the amendment, knowing that we will bring something back at Third Reading in this House and not leave it to the code of practice or the Commons. I beg leave to withdraw the amendment.
Amendment 76 withdrawn.
Amendments 76A and 77 not moved.
Amendments 78 to 80
78: Schedule 1, page 13, line 15, at end insert—
“( ) Regulations made by the appropriate authority under sub-paragraph (1)(b) may make provision about a connection of any kind (financial or otherwise).( ) The “appropriate authority” means—(a) where the pre-authorisation review is in relation to an authorisation by an English responsible body, the Secretary of State, and(b) where the pre-authorisation review is in relation to an authorisation by a Welsh responsible body, the Welsh Ministers.”
79: Schedule 1, page 13, line 27, after first “any” insert “other”
80: Schedule 1, page 13, line 28, leave out from “action,” to end of line 30 and insert “if it appears to the Approved Mental Capacity Professional to be appropriate and practicable to do so.”
Amendments 78 to 80 agreed.
Amendment 81 not moved.
82: Schedule 1, page 13, line 32, at end insert—
“(za) meet with the cared-for person,”
My Lords, the next three amendments form a suite and, following our discussions with stakeholders, these are issues that we would like to discuss. The noble Baroness, Lady Barker, and I have shared the tabling of these amendments, which do not directly address the central and overarching question of where so much of the care home manager’s responsibility will lie. In a way, we have addressed that issue and amended the Bill accordingly. The amendments concentrate on strengthening the rights of the cared-for person, which have to be at the heart of any system for giving and reviewing authorisations, by ensuring that their voice is heard within consultations at every stage of the process. Amendment 82, which is in my name and that of the noble Baroness, Lady Barker, would start this process by ensuring that there is a meeting “with the cared-for person”. I beg to move.
Before I address this amendment, I again thank noble Lords for their willingness to talk further on Amendment 76A so that we can reach the right conclusion.
The noble Baroness, Lady Thornton, quite rightly talked about the role of Amendment 82 being to make sure that the cared-for person has rights and that they are at the centre of the authorisation process. Of course, that is absolutely right. The reason why we have not taken the approach that the reviewer should meet all people in the system is because we want to provide a more proportionate system that nevertheless contains significant safeguards so that if there are any concerns about the nature of a review then not only would the reviewer, whether a responsible body or an IMCA, meet the person but there are opportunities for escalation beyond that.
Let me be absolutely clear that in cases where the person objects to the arrangements, the Bill already requires AMCPs to meet the person, where practicable and appropriate, when they complete the preauthorisation review. This amendment would require a face-to-face visit in all preauthorisation reviews, not only those completed by an AMCP, regardless of whether it is appropriate or practicable to do so.
I of course appreciate there will be circumstances where it is right and proper for the person conducting the preauthorisation review to meet the person, even in cases where the review is not completed by an AMCP. That is not precluded by the Bill. Indeed, it would be our expectation in some cases that that would happen. For example, if the person completing the preauthorisation review is concerned that adequate consultation has not taken place or if there is a question over the validity of any of the assessments provided, we think it right and proper for the person conducting the preauthorisation review to meet the cared-for person. Details about that, including scenarios, will be set out in the code of practice.
However, we also want to make sure that the system is proportionate. One of the problems we have at the moment is that it is not proportionate, and that is why we have a backlog. There are straightforward cases. For example, when someone who consented to living in the care home subsequently loses capacity and there is no reason to suspect that they would object to continuing to live in the care home, a meeting with the cared-for person would be very unlikely to change the outcome. In such cases, the person may have already undergone an assessment process and the person will also have access to representation—we are about to come on to IMCAs. Unless there are concerns about the validity of the assessments, it would not normally be necessary or proportionate to meet the person who, after all, had agreed to live in the care home.
A further potential effect of this amendment would be to require the person completing the preauthorisation review to meet the cared-for person, even if the person refuses. This is a topic we have discussed before. We do not think it goes with the ethos of the Mental Capacity Act, particularly in cases where someone has expressed a desire not to do so. It is important to stress that that is not just our conclusion but is also the conclusion of the Law Commission after its work. We believe that a targeted approach will be much more effective in making sure that those safeguards are in place.
While I understand the noble Baroness’s desire for reassurance that the cared-for person will be met, I do not think it would be appropriate in all cases. We have been clear during the passage of the Bill in the amendments that we have laid, and as we will specify in the code of practice, that there will be many circumstances when it is appropriate to do so but equally there will be circumstances when it is not appropriate. Therefore, we do not think it would be right to have a blanket application of this approach of the preauthorisation reviewer meeting the cared-for person. I hope that on that basis the noble Baroness will feel reassured and will withdraw her amendment.
During our deliberations the Minister has several times talked about people being forced to meet an IMCA or an AMCP when they do not want to. We have asked him to supply evidence of that. He has not yet done so, even though we are at this stage in our deliberations. Clearly this is a matter that may well return at a further stage in the Commons. I ask him again please to write to noble Lords with that evidence.
I would be more than happy to do so.
I thank the Minister for that clarification. It is a question that we felt was worth asking, and I suspect that when the Bill goes to the Commons people will pursue it. I do not think the argument that the noble Baroness, Lady Barker, put forward, that there are people who do not want this and they should not be forced into it, is really the point; the point was about this not happening because it was obstructed by the people taking care of the person. That is the matter that needs clarification. So, on the basis that that will be clear—
Before the noble Baroness withdraws her amendment, I would like to say that that is an important point. I am not suggesting that there are going to be hundreds of cases where individuals do not want to see someone, but it is clearly a possibility. I think we need a more proportional system in order to deal with the backlog and ensure that people are protected, but it also has to have a set of safeguards, whether that is access to representation, making sure that conflicts of interest do not exist among care home managers and, as we are going to discuss in the coming weeks, under what circumstances an AMCP would automatically be activated, in which case of course the meeting would take place. It is those circumstances that ought to give the reassurance that it is not necessary in all cases, rather than saying that there are hundreds or thousands of these kinds of cases where people are refusing. I think that will be the exception rather than the rule.
I thank the Minister for that. I beg leave to withdraw the amendment.
Amendment 82 withdrawn.
Amendment 83 to 88 not moved.
89: Schedule 1, page 15, line 8, at end insert—
“(d) there are practicable less restrictive options that would meet the authorisation conditions”
This amendment follows on in some way from the previous discussion. It relates to a practical issue. We keep returning to the fact that authorisations are going to be made, potentially for a longer time—they can be renewed for up to three years —yet there is not much in the way of safeguards for those people for whom the initial authorisation and the process of review is no longer the least restrictive option. This again uses the importance of putting something in the Bill rather than sticking it in the back of a code of practice to ensure that in the process of reviewing an authorisation and bringing it to an earlier conclusion there is information about less restrictive options for that person that would meet the authorising conditions.
This is mostly the case for people who are discharged from hospital into a care home and whose care is then very often not reviewed. At that stage their care may be taken into consideration along with the sale of their own property. That is why it is important that we consider this issue as the Bill goes through, so that by enabling there to be longer authorisations for most people we are not putting a subgroup of people in jeopardy by not having this requirement to continue to look at less restrictive options. I beg to move.
My Lords, I support the amendment. I would like to put an illustrative example before the House, although I know this is Report so I will be very brief. I heard recently about someone who had sustained a head injury, living in a place where he received care, who got very aggressive whenever people suggested that he should attend to his own personal hygiene or tidy up. Any type of reasoning or persuasion completely failed. The solution was not to restrict what he did at all but rather just to walk in, put a vacuum cleaner in the room and go out again. He seemed to then go into an automatic mode of vacuuming, cleaning up, tidying up and then washing, and everything was sorted, including his personal hygiene.
I mention that because it is important for us to realise, when we are thinking of restrictive options, that sometimes you need to be imaginative to find the least restrictive option for people. Letting people out a certain amount can be far more effective than being so risk-averse that you limit what they can do.
Yet again, the noble Baroness, Lady Finlay, brings us a helpful example. I put my name to the amendment and we support it. It is part of a suite of amendments about keeping the cared-for person as far as possible empowered to make their own decisions, which must be intrinsic to the Bill. The amendment would ensure that the least restrictive method is always used.
I am grateful to the noble Baroness for moving the amendment and the other noble Baronesses who have spoken to it. The example given was very illuminating, and I rather like the idea of that happening automatically if you leave a vacuum cleaner in someone’s room. I might try that with my children and see what happens.
The key point here is that we want the least restrictive arrangements necessary to provide for the person’s ongoing care. That is the animating idea behind the liberty protection safeguards system. We believe that the effect of the amendment is catered for through the “necessary and proportionate” test. Let me explain that. When the Law Commission published its final report on this, it concluded that,
“integral to the question of whether the deprivation of liberty is proportionate (as well as necessary) is consideration of whether there is a less intrusive alternative”.
So consideration of whether an ongoing restriction continues to be necessary and proportionate is already baked in.
As I said, the nature of the authorisations to be given by the responsible body under the new system will instigate a system of regular reviews. To give an example, it might stipulate a review for someone with fluctuating capacity, where there is reason to believe that a review might be required after a period. The system being set up enables regular reviews in a way that provides greater specificity than is the case now.
The noble Baroness, Lady Barker, was concerned that, as the length of an authorisation was extended, although that might be all right for some people, it might not for others. That is a fantastically important point, but in the process of authorisation the responsible body will be able to stipulate more frequent reviews. Our hope would be that that would come from the care home manager or other person organising the arrangements in the process of their care planning, because they will have worked out, by looking after that person, that there is reason for regular review, but it could equally be something that the responsible body attaches as a condition to the arrangements.
The effect is that when less restrictive alternatives are practically available, the authorisation ceases to have effect. It is no longer applicable. As I said, that could be determined by continuous review, regular review or be flagged by anyone—a staff member, a family member or others—with an interest in the cared-for person’s welfare, which would trigger an updated review of the situation to see what less restrictive care was available.
Although I absolutely agree with the intent behind the amendment, the “necessary and proportionate” test is already in the Bill. It provides precisely the effect that the noble Baronesses seek. Indeed, because of the way we are dealing with specific arrangements in the authorisation process, it is something for which the responsible body can stipulate a system of regular reviews. I hope that, on that basis, they will be reassured that we are conscious of the importance of this issue but believe that it is dealt with in the Bill as amended, and that the noble Baroness will feel comfortable withdrawing the amendment.
I thank the noble Lord very much for those statements. He will understand that, given the state in which this Bill arrived in your Lordships’ House, there was a great deal of genuine concern among stakeholders that the people making the decisions—largely, care home managers—might not be in a position to know what would be a less restrictive option for somebody: to be either in their own home, or supported in the community. In this Report stage, it has been useful to go back over that ground and to put more clarification around the frequency and timing of reviews. That will be a tremendous test for this new system, given the way in which it has been set up for there to be a period of two-year renewals. Nevertheless, at this stage, I thank the Minister and beg leave to withdraw the amendment.
Amendment 89 withdrawn.
Amendments 90 and 91
90: Schedule 1, page 15, line 16, at end insert—
“26A_ The responsible body may renew an authorisation—(a) under paragraph 27, if the conditions in that paragraph are met, or(b) under paragraph 28 if—(i) the authorisation relates to care home arrangements,(ii) the responsible body decides that renewal should be determined under that paragraph instead of under paragraph 27, and(iii) the conditions in paragraph 28 are met.”
91: Schedule 1, page 15, leave out lines 17 and 18 and insert “The conditions in this paragraph are that—”
Amendments 90 and 91 agreed.
Amendment 92 not moved.
93: Schedule 1, page 15, leave out lines 28 and 29 and insert “The conditions in this paragraph are that—”
Amendment 93 agreed.
Amendments 94 and 95 not moved.
96: Schedule 1, page 15, line 42, after second “statement” insert “in writing”
Amendment 96 agreed.
Amendments 97 and 98 not moved.
If Amendment 99 is agreed to, I cannot call Amendments 100 to 102 on grounds of pre-emption.
99: Schedule 1, page 16, line 12, leave out from “means” to end of line 15 and insert “the responsible body unless, in relation to care home arrangements, the responsible body decides the care home manager should be the reviewer for the purposes of this paragraph.”
Amendment 99 agreed.
Amendments 100 to 102 not moved.
103: Schedule 1, page 16, line 20, after “interest” insert “in the welfare of the cared-for person, or”
My Lords, Amendment 103 is in my name and that of the noble Baroness, Lady Barker. It would ensure that the reviewer must carry out a review of authorisations if a reasonable request is made by a person with an interest in the welfare of the cared-for person. This is part of the suite of amendments that stakeholders have put to us about making the cared-for person the heart of the Bill. Care England, along with many others across the sector, wants to be assured that the cared-for person’s voice is heard within the consultations at every stage of the process. This amendment would ease those concerns of the various stakeholders.
Like amendments in previous groups, this amendment would ensure that the cared-for person’s best interests are kept at the forefront of the Bill and not forgotten, and it would play a key role in protecting the cared-for person’s rights. If someone with a cared-for person’s best interests feels that the authorisations are in need of being reviewed and reconsidered, this must happen and therefore would help to protect the cared-for person. I beg to move.
I am grateful to the noble Baroness for moving the amendment. Obviously, it is worth having an opportunity to restate that we clearly agree with her that it is necessary that anybody with an interest in a cared-for person’s welfare is able to trigger a reasonable request or, indeed, an objection on their behalf that constitutes a reasonable belief. That is something that we have discussed in terms of people who are supportive, such as family members, appropriate persons, IMCAs, and so on. Clearly, we have agreed to talk further about the role of whistleblowers and staff members.
I can reassure the noble Baroness that what she is asking for is already contained in numerous places in the Bill. The amendment deals specifically with paragraph 31(3)(b) of Schedule AA1. It is implicit in the description,
“person with an interest in the arrangements”,
that that includes people who have an interest in the cared-for person’s welfare. That is the purpose of the Bill. As I have made clear, any objection from someone who has an interest in the person’s welfare constitutes a reasonable belief, as set out elsewhere in the Bill. I am grateful for the opportunity to return to this issue and hope that I have reassured the noble Baroness that this is absolutely included in the definition.
Before the Minister sits down, will he confirm that “interests” does not include the interests of the care home manager, where it may be a cheaper option, and that the interests of the cared-for person are definitely at the centre of the clause as written? I want to be absolutely sure that it cannot be misinterpreted in the future to mean “interests” in a much broader sense than the interests of the cared-for person.
That is a very valid question. We have tried to deal with the conflict issues in other amendments. It is absolutely not the intention that that ought to be misused for the purpose referred to by the noble Baroness. I will need to get specific clarification about the implications of this, but I can reassure her that that is not the intention of it. If it needs to be clarified in a letter to noble Lords and, subsequently, in a code of practice then that is what we will do.
This is probably one of the occasions when one can say that this really needs to be clarified in the code of practice. I thank the Minister for his reassurances and for getting them on the record. I beg leave to withdraw.
Amendment 103 withdrawn.
Amendments 104 and 105 not moved.
Amendment 106 had been withdrawn from the Marshalled List.
Amendments 107 to 109 not moved.
Amendments 110 and 111
110: Schedule 1, page 17, line 13, after first “any” insert “other”
111: Schedule 1, page 17, line 14, leave out from “action,” to end of line 16 and insert “if it appears to the Approved Mental Capacity Professional to be appropriate and practicable to do so.”
Amendments 110 and 111 agreed.
112: Schedule 1, page 18, line 13, leave out “Notification by Care Homes and”
My Lords, I come to the critically important issue of IMCAs—independent mental capacity advocates. These amendments relate to the appointment of such people. Representation and support, whether from an IMCA or an “appropriate person”, is an important safeguard and is vital to ensuring that a cared-for person’s human rights are protected throughout the process when they are deprived of liberty.
Many people will be best supported by an appropriate person. This will tend to be a family member or someone who is close to the person. They will often know them, and their wishes and feelings, and are in the best position to provide that person with support and representation. They must, of course, be willing to undertake such a role. However, we know that others will not be in this position and will benefit from having an IMCA to provide that support and representation. For those people, it is vital that they can access an IMCA without impediment and these amendments address this
Amendments 112 and 113 remove the requirement for care home managers to notify a responsible body whether or not an IMCA should be appointed. Amendments 116 and 118 mean that appointment of IMCAs in care home cases is not contingent on notification from the care home. In Committee, I committed to review whether the Bill could make clearer that the care home manager should not act as a gatekeeper to an IMCA appointment. I have done this and these amendments achieve that goal. The responsibility for appointing an IMCA will therefore clearly lie with the responsible body and must be considered from the point that the arrangements are proposed. The responsible body can take into account any evidence in deciding whether an IMCA should be appointed, including a request from the person themselves, a family member or other interested person.
Amendments 122 and 124 in effect introduce a presumption that an IMCA should be appointed if there is no appropriate person, with a very limited exception when having an IMCA would not be in the person’s best interests. Noble Lords and others have raised concerns that the Bill as currently drafted introduces a test that could act as a block on IMCA appointment. The Joint Committee on Human Rights also expressed concern about this issue. Our intent is to ensure that people are properly protected, and we see the role of the IMCA and the appropriate person as essential to the integrity of the system in advocating for and supporting cared-for people and their rights.
We have been pleased to listen to stakeholders and to noble Lords and have amended the Bill accordingly to make sure that, when no appropriate person is in place, an IMCA is appointed unless that is not in the person’s best interests. Circumstances where it would not be in a person’s best interests to have an IMCA would be very rare, as we have discussed, but that might be the case if, for example, a person’s past and present wishes and feelings clearly indicated that they did not want one. We will use the code of practice to outline when these very unusual exceptions would apply.
Turning to the other amendments in this group, Amendment 117, tabled by the noble Baronesses, Lady Finlay and Lady Jolly, would have the same effect as government Amendment 116. In the light of that, I hope they will feel that that deals with the issue they were concerned about. All the other amendments in this group update the Bill to reflect our proposed changes to the IMCA role.
I hope that our amendments have addressed the perfectly understandable concerns of noble Lords on this topic. I am very grateful for their input to making sure that we have been able to move forward on this issue. I beg to move.
My Lords, like all other noble Lords, I welcome the Government’s change of heart on this matter and am glad that they have understood the very real concerns about conflict of interest in relation to care home managers. However, I would like to take this opportunity to raise one other potential conflict of interest to which we have not really had time to pay much attention, and that is within the responsible body. The responsible body may well be the local authority which is funding somebody’s care home place. During meetings, stakeholders have been very concerned that the person within the responsible body who makes these decisions should not be within the commissioning part of that body, as there is the potential there for another conflict of interest.
Some further work will have to be done—I suspect either in regulations or in a code of practice—to make sure that we do not enable another conflict of interest to take place which is probably more important than a conflict of interest relating to a care home manager. It is just a case of being sure that all the decisions—although principally these decisions—are taken by a person within the responsible body but not within the financial decision-making parts of it.
I have an amendment in this group which covers the same ground that we have been talking about for the last 20 or so minutes. It is probably not essential to pursue this amendment because the government amendments on this matter seem very comprehensive.
I am sorry that I did not mention the noble Baroness’s amendment—there are so many in this group—nevertheless, I am grateful for her acceptance that we have been able to meet the perfectly justified concerns discussed inside and outside the Chamber during the passage of the Bill.
Perhaps I may deal quickly with the point raised by the noble Baroness, Lady Barker, who asked about conflicts of interest within a responsible body. We would certainly expect authorisation and the IMCA appointments to be in a separate part of the commissioning body. Government Amendment 73, which deals with who should not carry out reviews, includes, in paragraph (b),
“a person who has a prescribed connection with a care home”.
The process of commissioning a care home place for somebody should perhaps be a category that we ought to consider under that provision, and I shall need to reflect on that. That might be the right route to follow, as clearly we do not want to move the conflict of interest to a different part of the process. I will look into that and we will consider how to deal with it. I think we now have the statute to enable us to do so. I will come back to noble Lords on that point. I thank them for their contribution to the development of these amendments and their support for them. I beg to move.
Amendment 112 agreed.
113: Schedule 1, page 18, leave out lines 14 to 24
Amendment 113 agreed.
Amendments 114 and 115 not moved.
116: Schedule 1, page 18, line 27, leave out from “arrangements” to end of line 33 and insert “are authorised or are being proposed.”
Amendment 116 agreed.
Amendment 117 not moved.
118: Schedule 1, page 18, leave out lines 36 to 39
Amendment 118 agreed.
Amendments 119 to 121 not moved.
Amendments 122 to 125
122: Schedule 1, page 19, line 4, leave out “relevant person” and insert “responsible body”
123: Schedule 1, page 19, line 8, leave out second “and” and insert “unless”
124: Schedule 1, page 19, line 9, leave out “relevant person” and insert “responsible body”
125: Schedule 1, page 19, line 10, after “would” insert “not”
Amendments 122 to 125 agreed.
Amendment 126 not moved.
Amendments 127 to 134
127: Schedule 1, page 19, line 15, leave out “relevant person” and insert “responsible body”
128: Schedule 1, page 19, line 29, leave out “relevant person” and insert “responsible body”
129: Schedule 1, page 19, line 41, leave out “relevant person” and insert “responsible body”
130: Schedule 1, page 19, line 46, leave out “relevant person” and insert “responsible body”
131: Schedule 1, page 23, line 18, leave out from “treatment”” to end of line 19 and insert “is to be read in accordance with paragraph 49;”
132: Schedule 1, page 23, leave out lines 20 to 23
133: Schedule 1, page 23, leave out lines 25 and 26 and insert—
“(a) “medical treatment” has the same meaning as in the Mental Health Act (see section 145(1) and (4)), but”
134: Schedule 1, page 24, line 22, at end insert—
“PART 8TRANSITORY PROVISION52_ Until the repeal of section 324 of the Education Act 1996 made by paragraph 4(1) and (9) of Schedule 1 to the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (anaw 2) comes fully into force—(a) paragraph 10(1)(zb) has effect as if there were substituted—“(zb) if the cared-for person has an individual development plan or a statement of special educational needs—(i) the local authority responsible for maintaining that plan or statement, or(ii) in the case of an individual development plan which is not maintained by a local authority, the local authority whose area the cared-for person is in;”,(b) paragraph 10(4A)(b) has effect as if there were substituted—“(b) if the cared-for person has an individual development plan or a statement of special educational needs—(i) the local authority responsible for maintaining that plan or statement, or(ii) in the case of an individual development plan which is not maintained by a local authority, the local authority whose area the cared-for person is in;”, and(c) paragraph 10(7) has effect as if at the end there were inserted—““statement of special educational needs” means a statement within the meaning of section 324 of the Education Act 1996.””
Amendments 127 to 134 agreed.
Schedule 1, as amended, agreed.
Clause 2: Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act
Amendments 135 to 139
135: Clause 2, page 2, line 29, at end insert “or”
136: Clause 2, page 2, line 32, leave out “which would” and insert “that”
137: Clause 2, page 2, line 33, leave out from “liberty” to end of line 36
138: Clause 2, page 2, line 40, leave out “or (c)”
139: Clause 2, page 3, line 8, leave out “or (c)”
Amendments 135 to 139 agreed.
140: After Clause 3, insert the following new Clause—
“Requirement before commencement: consultation
Before any provisions of this Act other than those which come into force on its passing can come into force, the Secretary of State must publish a report listing the names of organisations consulted by the Government in preparation of the Mental Capacity (Amendment) Bill since 13 March 2017.”
My Lords, I have three substantive amendments in this group, Amendments 140, 141 and 143. Amendments 145, 146 and 147 are linked to and consequential on the first three.
Amendment 140 states that before the Act comes into force, the Secretary of State should publish a report listing the names of organisations consulted by the Government since March 2017 in preparing the Bill. I am very surprised that the Government have refused to list the organisations they consulted. I understand they refused an FoI request because it would be too expensive, which is difficult to understand. I think the Government and the Department of Health and Social Care are clearly embarrassed about the consultation they undertook. It was clearly one of those selective consultations, and I am afraid it reflects the rushed nature of the Bill.
The Law Commission undertook extensive work and published a draft Bill. Instead of discussing that with stakeholders and having the proper pre-legislative scrutiny for a mental capacity Bill, the Government essentially cherry picked the Law Commission Bill, did a rushed consultation, ended up in trouble and have now had to produce a load of amendments to try to put the Bill as right as possible.
I am grateful to the Minister and his officials for what they have done, but I do not think anyone believes this is a good Bill that will work in practice. I am sure the reality is that another Bill will have to be produced when it is found that this Bill, too, cannot be implemented effectively in the field, for all the reasons we have suggested. A Bill in this kind of area, particularly when it starts in the House of Lords, cries out either for pre-legislative scrutiny or at least—as the noble Lord, Lord Norton, has suggested on a number of occasions—a Select Committee process to engage with stakeholders and question officials before it reaches Committee in your Lordships’ House. It is a matter of regret that this did not happen. I am sure this will come up again in the Commons, and I still think we ought to know for the record which organisations were consulted on the Bill.
Amendment 141 relates to outstanding applications under the current legislation, which I raised in Committee. We are told that the reason for the Bill is the huge backlog of applications that have not been dealt with at all. The question is: what will happen to them? In Committee, the Minister said that,
“existing DoLS authorisations can continue until they are due for renewal or review”.—[Official Report, 22/10/18; col. 758.]
I well understand that; it is sensible. When they come up for review or renewal, they will then need to be dealt with under the provisions of this Bill, once it is enacted. But I want to know what will happen to the tens of thousands of applications that have simply not started. Because they have not been started, will they have to be dealt with under the existing legislation, or, if not, how will the sector cope with these thousands of applications under the new system?
All evidence suggests that, when you start a new process and then immediately put on to it all the people who have not been through the old process, it leads to chaos, because the system cannot handle it. I have mentioned my wonderful experience as Minister for the Child Support Agency. Mrs Thatcher invented the CSA, thinking she could reduce benefit payments because, in essence, benefits were being paid in circumstances where people were not paying maintenance to their partner who was looking after the children. She had the great idea that, by bringing in the CSA and making everyone on benefits go through the system, suddenly a lot of money would be produced. Of course, what it produced was absolute chaos. On the vesting day, everyone who was claiming benefits in those circumstances was immediately expected to come on to the system. I want to make sure that we avoid a similar situation here—as well as wanting to share with noble Lords a second time my angst with the CSA.
Amendment 143, my third in this group, relates to the code of practice. We have talked about this code on many happy occasions during our debates. Will the Minister explain how he sees the timing for the code, and confirm that it will have to be laid before Parliament? Finally, I hope the Minister will accept my amendment. He has put so much emphasis on the importance of the code; surely it should be approved by affirmative rather than negative resolution. I know that the Minister has given quite a bit on this Bill recently; I hope he might just give on that. I beg to move.
My Lords, I shall speak to Amendments 142 and 144. My substantive Amendment 142 requires that the code of practice to the Mental Capacity Act and the government response to the independent review of the Mental Health Act must be laid before Parliament before the provisions of the Bill come into force. I shall focus on the latter, as we have already heard from the noble Lord, Lord Hunt, about the code of practice.
The independent review of the Mental Health Act is due to report its final recommendations on 12 December. I know this because last week I attended a helpful briefing given by Sir Simon Wessely to interested parliamentarians, in which he outlined his broad findings. However, until that review is published, we cannot know how its recommendations will impact precisely on this Bill.
We know that the Mental Capacity Act and the Mental Health Act are the only two pieces of legislation that allow a deprivation of liberty for the purposes of care and treatment and that, as such, there will inevitably be cross-over between the two. I thank the Minister for confirming in Committee that these documents would be produced before the Bill is enacted. However, I am concerned that the Bill could have completed its parliamentary passage by the time the Government respond to the independent review. Therefore this important debate is taking place in a vacuum of information on how people with severe mental illnesses could be affected by the proposed LPS.
Sir Simon Wessely has indicated that his review will not consider the full fusion of the Mental Capacity Act and the Mental Health Act, which some people were advocating a while back, but there are none the less many outstanding questions on the interaction of the Bill with the Mental Health Act and, frankly, until it has reported they are impossible to answer.
Under the Mental Health Act, there is no capacity test and the capacity-based principles of the Mental Capacity Act do not apply to mental health care or treatment provided under the Mental Health Act. People without capacity are nevertheless detained and treated under the Mental Health Act. We know there has been a dramatic rise in recent years in the number of those aged over 65 being treated under the Mental Health Act. Indeed, the Care Quality Commission has highlighted that both the broadening of the definition of deprivation of liberty in the light of the Cheshire West judgment and the associated overburdening of DoLS, which is what we are talking about, are likely to have played a role in this.
As a result, there are still crucial questions about how the independent review of the Mental Health Act will address people who lack capacity and what the implications may be for those who fall under the LPS regime depending on where the dividing line between the two Acts is drawn. It is an incredibly complex picture.
Let me say a couple of words finally to highlight and paint a picture of that complexity. It is not possible for a person to be subject to the LPS when they are already detained under the Mental Health Act, even if they lack capacity. However, it is possible for people who are in hospital to be subject to the LPS if they are not detained. The LPS was not primarily designed for people with severe mental illness whose conditions are likely to fluctuate, improve or be contested more frequently than, for example, dementia. While I have focused on the needs of those with severe mental illness under the LPS, many of the same points apply in the opposite direction.
I could go on but I will not. I hope these illustrations of how the Mental Capacity Act is applied to mental health patients, and the Mental Health Act to people without capacity, in these two overlapping legislative frameworks have shown the necessity for this amendment so that the two can be finally considered together, a point which I and many other noble Lords have raised consistently since Second Reading.
My Lords, I feel sorry for the Minister that after so much agreement we are now criticising the Bill. However, the reason we have reached a happier state than the one we started off in in July is due to the work of a great many people, including the Minister and the Bill team.
I have put my name to several amendments in this group—I support my noble friend Lord Hunt and the noble Baroness, Lady Tyler, in what they have said—and I shall speak to Amendments 143A and 147A.
In a way, the amendments are part of what should have happened before the Bill reached us; that is exactly right. It is important to note that a coalition of organisations is concerned about what is and is not in the Bill and how it will be implemented. For the record, we have discussed the Bill with at least 44 organisations in the very short time we have had to consider it. They include Mind, the Alzheimer’s Society, Liberty, Learning Disability England, Disability Rights UK, the Relatives & Residents Association, the Care Provider Alliance, VODG—the voluntary sector’s disability group—and many others. We must pay credit to both them and the noble Lords who have worked so hard on this for the fact that we have to come to a point where the Bill has significantly changed and been improved.
Echoing what my noble friend said, the amendments ask that the revised codes of practice for the Mental Capacity Act take account of Schedule 1 to the Bill and, prior to the provisions in the Act coming into force, that the code be revised by statutory instrument using the “made affirmative” procedure. Amendment 143A states:
“Before any provisions of this Act other than those which come into force on its passing come into force … the Secretary of State must publish a report detailing which of the provisions of the Act will be consulted on, by whom and by when … publish his or her consideration of the conclusions of the Independent Review of the Mental Health Act … conduct further consultation with vulnerable people, families, charities, providers … publish an equality impact assessment on the impact of the provisions of this Act”.
I would like the Minister to say that the Government have done the equality impact assessment but I have missed it somehow. However, it seems that the Government are duty-bound to consider the impact on people with protected characteristics under the Equality Act. An equality impact assessment is the established way of the Government showing that they have considered the impact on vulnerable groups. That Act begs that this process should have been gone through in preparation for the Bill. I hope that a full equality impact assessment will be conducted and made available to the Commons when it considers the Bill.
My Lords, I had not fallen asleep. We are nearly there. I put my name to Amendments 140 to 147A because they are important, although I suspect that they will not make it into the Bill. It is important to have these discussions at this stage.
In Committee, I tabled amendments on the review of the Mental Health Act and the code of practice. I still support them. The request for an equality impact assessment in Amendment 143A in the name of the noble Baroness, Lady Thornton, is the right thing to do. The amendments ask the questions but the issues are still real and important. The amendments also relate to how a future Bill could be handled. Indeed, it helps us to look back to other Bills; I cite the Care Act, for example, where a Committee of both Houses went through the Bill over a prolonged period to ensure that by the time it hit your Lordships’ House, it was worth reviewing.
The Minister has done a very good job of pulling this all together so far; Third Reading is still to come. I understand full well that he will not put any of these amendments in the Bill, but he should take seriously the concerns that they raise from Members of your Lordships’ House.
I apologise for pre-empting the noble Baroness. I take the points raised in these amendments seriously, and I will attempt to deal with them as we go through. I applaud noble Lords for the contribution they have made in improving the legislation before us, but of course it is one thing getting the legislation in better order and another thing putting it into practice. I think that is what has inspired the amendments in this group. I will attempt to deal with them as comprehensively as I can and explain why we will not be accepting them in practice—as the noble Baroness, Lady Jolly, pointed out—although we are dealing with them in spirit.
Amendments 140 and 146, tabled by the noble Lord, Lord Hunt and the noble Baroness, Lady Jolly, require the Government to publish a list of every organisation we have consulted with. The noble Lord expressed concern about our response to his FOI request; as I understand it, there were some technical reasons why that did not elicit the information he was after. However, I hope the noble Lord will have seen the letter I sent following Committee, explaining that we have held over 50 engagement events since March 2017. I outlined the broad range of organisations that the Government have engaged with. That letter has been put in the Library and will be published online in due course.
I will not detain noble Lords by going through that list, but of course I am more than happy to circulate it again; indeed, it has obviously developed over time. We have engaged with care providers, a range of third-sector organisations, the royal colleges, stakeholders in local government, the NHS and the social care sector, and, critically, people who themselves have impaired capacity. That builds on three years of engagement conducted by the Law Commission in drawing up its draft Bill.
Nevertheless, I accept there is concern that we have moved too swiftly and that we have not always taken concerns on board. I know we have come in for some criticism for that, but we moved ahead with this Bill because of the urgent need for reform and because the system is not working. While I do not pretend our approach has been perfect, I and the Government feel it has been necessary to move ahead at pace.
The point I want to emphasise is that, in doing so, we have listened and acted. I am grateful to noble Lords for recognising the changes made as a consequence of challenges and ideas from them and other stakeholders. I also applaud the Bill team for responding and providing government amendments. I am pleased we have been able to move on some incredibly important topics, such as “unsound mind”, 16 and 17 year-olds, the point about IMCAs, thinking about when reviews should be considered by AMCPs, and so on.
As I said, in retrospect and as a lesson for the future, things could perhaps have been done differently. However, I believe we are in a much better place than we were at the start of the process as a consequence of our deliberations.
Amendments 141 and 147, also tabled by the noble Lord, Lord Hunt, and the noble Baroness, Lady Jolly, would require us to publish a plan to ensure that all outstanding deprivation of liberty safeguards applications are settled. The noble Lord is right to worry about this issue and give us the cautionary tale of a too-abrupt switch to a new system and the chaos that can ensue.
On commencement of the new system, existing deprivation of liberty safeguards authorisations will continue until they expire, at which point a liberty protection safeguards authorisation will need to be arranged, or the person should be provided with alternative arrangements that do not amount to a deprivation of liberty—we are seeking less restrictive care wherever possible. Given the length of time for which these authorisations exist, that will provide for a degree of staggering of the case load through the implementation of the new scheme.
On the backlog itself, many local authorities are already working to clear this. Some innovative working models have been introduced and I would be happy to write to noble Lords about them. We are working closely with the LGA and ADASS, as well as the Welsh DoLS network, to provide examples of best practice so that we can move through that backlog and into the new system. There will of course be some outstanding cases as we move from one system to another, particularly if an application is made shortly before the date the new system comes in. We will need special arrangements in place for those, but I reassure all noble Lords that we are working closely with all the people and organisations who will be responsible for implementing the new system to ensure a smooth transition.
Amendments 143 and 145 would require the Government to publish an updated code of practice, subject to the affirmative parliamentary procedure, and Amendments 142 and 144 would also require the Government to publish a revised code of practice and their response to the Mental Health Act review before the new system came into force. I can give an absolutely firm commitment that the Mental Capacity Act code of practice will be issued in sufficient time ahead of the introduction of the new liberty protection safeguards system. Furthermore, Section 43 of the Mental Capacity Act requires that the Government must consult on any revision to the code and lay a draft before both Houses of Parliament before it can be issued. Noble Lords are, of course, more than welcome and perfectly empowered to request a debate on this issue; I am sure the Whips would look beatifically upon that. Of course, I would be more than delighted to respond to such a debate.
I just want to be clear: am I right that the code of practice would not be amendable when any debate came? Would it come before this House simply for information purposes?
That would be correct at the point at which it came before the House, but it would be published for consultation before then. There will be an opportunity for everybody—noble Lords, Members of the other place and stakeholders—to consider a draft and to recommend changes. The final product would be laid before Parliament.
We discussed the Mental Health Act review a little bit last week. We await its conclusions. Many of us have had conversations with Sir Simon Wessely about what it is likely to conclude, and about the interaction between the Mental Health Act and the mental capacity Bill when enacted. Since we are expecting its recommendations in the middle of next month—I think the scheduled date is the 12th—we will have an opportunity to consider the review’s recommendations before we move to the new system. Indeed, given that those recommendations will be out at about the time the Bill moves to the Commons, they will clearly be the subject of debate there. The Government will need to respond to those findings as we go through the Commons stages.
Amendments 143A and 147A, tabled by the noble Baroness, Lady Thornton, would require the Government, before the new system could come into force, to conduct public consultation on the Act with vulnerable people and other stakeholders and publish a report on its findings, as well as to publish their response to the Mental Health Act review and an equality impact assessment. I hope that I have dealt with the issue of public consultation, as well as consultation on the code and, equally, on the Mental Health Act review. The noble Baroness is quite right to bring the equality impact assessment to the House’s attention. It was prepared prior to introduction and required amendment following input from the Welsh Government. It will now need to be amended further to reflect the changes made in the Bill. I can commit to publishing the equality impact assessment before the Bill makes it to the Commons so that there will be ample time for consideration before it is debated there.
If the House will allow me, I will finish by thanking all noble Lords for their perseverance and patience during a sometimes difficult and challenging debate. We know that we all want to achieve the same end to our journey; there has been disagreement at times on the right way to get there. I am deeply grateful to all noble Lords for their contributions. The Bill has been immeasurably improved already in its passage through this House. That is a very good thing in itself and will have a very positive impact—notwithstanding the slightly gloomy prospect given by the noble Lord, Lord Hunt—when it goes to the other place and on to implementation.
Once again, I extend my sincere gratitude to all noble Lords. I hope that I provided reassurances on the amendments in this group and that they will feel able not to press their amendments.
My Lords, I am grateful to the Minister. After such an uplifting response from him I do not want to drag us down again into negative thinking as we move on to Third Reading. I will just say that the problem with selective consultation is that it disfranchises some key respondents, and the problems we had over the summer were a consequence of that; it is a lesson to be learned for the future. I am grateful for the information about the work that has been done on the backlog. It will be important that the sector is clear as to which application falls under which part of the law. It is also very good that we will see the draft code in good time. Will the Minister arrange a briefing for noble Lords, rather than just going through a formal process? That would be extremely helpful.
Finally, Sir Simon Wessely’s review is clearly very important. It is obviously important that there be consistency, and the only thing I would say is that there are lessons for all of us for a future Bill in the way this Bill has been dealt with. There is no doubt in my mind that the issues raised by Sir Simon’s review lend themselves to pre-legislative scrutiny. Pre-legislative scrutiny is not fashionable any more, but my experience with the Mental Health (Amendment) Bill 2007 suggests that it doesn’t half pay off in terms of coherent legislation.
With that, I am very grateful to the Minister for his very full response and I beg leave to withdraw the amendment.
Amendment 140 withdrawn.
Amendments 141 to 143A not moved.
Clause 5: Extent, commencement and short title
Amendments 144 to 147A not moved.
148: Clause 5, page 4, line 20, leave out “made by statutory instrument”
Amendment 148 agreed.
European Union (Definition of Treaties) (Economic Partnership Agreements and Trade Agreement) (Eastern and Southern Africa States, Southern African Development Community States, Ghana and Ecuador) Order 2018
Motion to Approve
That the draft Order laid before the House on 19 July be approved.
My Lords, this order designates the economic partnership agreements with the Southern African Development Community, eastern and southern African states and Ghana and the protocol of Ecuador’s accession to the EU-Andean agreement as EU treaties pursuant to Section 1(3) of the European Communities Act 1972. This is a necessary step towards UK ratification of the agreements and works alongside the process of laying the treaty before Parliament for 21 days, as set out in the Constitutional Reform and Governance Act 2010, known as the CRaG Act.
The noble Lord, Lord Stevenson of Balmacara, has tabled an amendment to the Motion. I welcome the opportunity to set out the Government’s support for these agreements, and I will seek to respond to the points raised by the noble Lord in my opening remarks. Trade is an important tool in the fight against poverty. Over the last few decades, around 1 billion people have been lifted out of poverty, and international trade has played a very large part in bringing that about. By championing global free trade, we can help create growth and jobs across the developing world in a way that aid spending alone cannot. Before I address these agreements, I should note that they have all already been provisionally applied. They have already brought, and will continue to bring, benefits across a number of developing countries and to the UK.
I turn first to the three economic partnership agreements or EPAs. The UK is a long-standing supporter of EPAs, which differ from conventional free trade agreements in that they focus on the development needs of partner countries. Indeed, this House has already scrutinised and passed several other EPAs to date. I acknowledge the concerns raised about potential negative impacts of liberalisation on the economies of our developing country partners and the issues raised in the amendment to the Motion. As a responsible Government, we listen to such concerns and I am happy to reassure noble Lords that the agreements have taken them into account.
EPAs are deliberately and strongly asymmetrical in favour of developing countries. They give developing countries immediate duty-free access to our market, while EPA partners liberalise their markets gradually over a period of up to 25 years and to a lesser extent—protecting up to 25% of their product lines depending on their domestic situation. For example, the Seychelles, a high-income country, will liberalise 98% of tariff lines, whereas Mozambique, a least-developed country, will liberalise only 74%.
EPA partner countries have the ability to exclude their sensitive products from liberalisation, and they use it. For example, Ghana has excluded a number of agricultural goods such as meats, poultry, frozen fish and non-agricultural processed goods. EPAs also provide a range of safeguards for fledgling industries or for food security to protect African domestic products from possible EU competition. As the EPA partners gradually liberalise their markets over a period of many years, industries and consumers in Africa will benefit from cheaper inputs and consumer goods from the EU in non-sensitive sectors.
EPAs also take account of the social and economic circumstances of partner countries and provide development co-operation and assistance to help our partners address broader issues affecting trade, such as technical barriers to trade, labour rights, the environment, poor infrastructure or inefficient customs and border controls. Of course, they are negotiated agreements.
The EPAs we are considering today can deliver real benefits for manufacturers and farmers in developing countries and their communities. Specifically, they eliminate tariffs on processed and manufactured goods, keeping more of the value chain in the developing countries. They also offer simpler and more flexible rules of origin so that, when a producer in one country uses inputs from another, they do not have to pay customs duties when they export their final products to the EU. Both the southern African and eastern and southern African EPAs help regional economic integration by joining up those smaller markets.
The EPAs also bring advantages at home by reducing the cost of imports for our consumers—from Botswanan beef to South African wine. They will bring new opportunities in the future for UK exporters as EPA partners gradually liberalise their economies. We estimate that UK exports will increase over the coming years and be worth an additional £35 million annually from 2035 onwards. I am confident that the impact of these EPAs is positive for the developing nations and the UK and that local agriculture, industry and commerce will benefit and will continue to contribute to the well-being of the wider population through increased jobs and greater prosperity.
I turn now to South America and Ecuador’s accession to the EU-Andean agreement. This agreement has been in place since 2012 and last year trade to the EU increased 7% for Colombia, 16% for Peru and 20% in the first year of implementation for Ecuador. It is estimated that Ecuador’s accession will be worth £37 million annually to the UK’s GDP in 15 years’ time. For the UK specifically, the impact assessment suggests that exports have been increasing since the provisional application in early 2017. UK consumers should already be benefiting from lower prices, particularly for fruit and vegetables. I am confident that the benefits of the FTA can be enjoyed by importers and exporters of any size, with British businesses free to tap into the Ecuadorean market with even greater ease, benefiting from greater access across a range of service sectors and the government procurement market, as well as the removal of remaining tariffs in industries such as chemicals, textiles and telecoms.
This is not the direct subject of this debate, but I should mention that under the terms of the withdrawal agreement between the UK and the EU, the UK is to be treated as a member state for the purposes of international agreements for the duration of the implementation period. We continue to work to ensure continuity in all circumstances, with the withdrawal agreement providing the greatest certainty and confidence that there will be no disruption to existing relationships underpinned by international agreements as we move into the implementation period. On this basis, the EU-Andean agreement, now including Ecuador, and the three EPAs will apply to the UK during the implementation period. Our partners have broadly welcomed the implementation period and are keen to continue to work towards lasting agreements with the UK when the implementation period comes to an end.
We are making good progress on ensuring continuity for the SADC, ESA and Ghana EPAs after the implementation period. For instance, in August my colleague in the other place, George Hollingbery, Minister of State for Trade Policy, signed a joint statement with the Botswanan Trade Minister confirming that the trade agreement between the UK and the five Southern African Customs Union countries and Mozambique will be ready as soon as the EU agreement ceases to apply to the UK. The Government are also working towards new bilateral arrangements with the Andean Community which seek to deliver continuity for the effects of the EU-Andean FTA beyond the implementation period via a straightforward technical process.
Having sought to address the first two concerns of the amendment to the Motion, I turn to parliamentary scrutiny. The Government have remained committed to working with Parliament to ensure that EU trade agreements are thoroughly scrutinised as per the existing process while we remain an EU member state. This very debate is an opportunity for the agreements to be further scrutinised, and I note that the House of Commons has already debated and passed the Motion in support of these agreements.
The Government fully intend to continue to afford Parliament scrutiny of trade agreements. As set out in the Secretary of State’s Oral Statement of 16 July,
“the Government will keep both Houses updated on the progress of negotiations through statements and updates to the International Trade Committee”.—[Official Report, Commons, 16/7/18; col. 41.]
Although there is not currently a House of Lords committee with a specific remit to discuss UK trade policy, we will co-operate with inquiries conducted by related Lords committees on matters related to our work. Further, I welcome the thoughts and suggestions of noble Lords on the scrutiny process and am happy to explore this further with any of them.
To conclude, we have the opportunity through the ratification of the EU EPAs to demonstrate the UK’s strong commitment to these agreements and to helping developing countries reduce poverty through trade. These agreements are in the interests of the UK, the wider EU and our partner countries in Africa and South America. I urge noble Lords to support the Government’s Motion to ratify them. I beg to move.
Amendment to the Motion
At end to insert “but that this House regrets that the draft Order does not appear to take into account the substantive issues raised to date about the impacts on local agriculture, industry and commerce, and the well-being of the wider population in the partner states to each agreement; expresses serious concern at the fundamental lack of accountability and parliamentary scrutiny available at present for treaties and trade agreements; and calls on Her Majesty’s Government to come forward as soon as reasonably practicable with a series of proposals on how trade policy is to be determined after the United Kingdom’s withdrawal from the European Union.”
My Lords, I am placed in rather an unusual situation because I had understood the conventions of the House to be that the Motion in the name of the Minister would be moved, I would speak to my amendment and she would then respond to that, but she has given her response first, which is extremely good—and of course I am completely at a loss as to how to respond. I do not really have much to say because I do not have a speech that will address that way of progressing. It probably comes to the same thing. The Minister is looking a bit panicked about what I have just said but I wanted to explain why what I shall say will be repetitive, although I will try to adapt it. Hansard will have a great job following me in this, but that is the reason for it.
The narrow thrust of the response concerned the wording of the amendment but, with respect to the Minister, I think she has missed the main purpose of the amendment, which is to try to engage with the Government—although she said she would engage in future—on a much deeper question about how we do trade more generally. In a sense, that is where I shall end up.
I make it clear at the start that I am not opposing the ratification of the EPA and its South American extension, in the agreement with Ecuador, because it should go forward. The process may be flawed and we want to raise issues on it but it is not sufficiently problematic for us to oppose it. In saying that, I speak with confidence that I have support around the House. I have a copy of a letter sent to the Minister by the noble Earl, Lord Sandwich, who I think at that stage could not have spoken in the debate but may be tempted to address us later. I have also had correspondence with my noble friend Lord Judd, who is in his place and may want to contribute. Although what I will say is narrowly written, given what I thought I would be saying when I prepared it—this will have to be adapted as I read it—it comes with support from elsewhere around the Chamber.
The key question that we in Parliament have to address is: how do we assess trade, going forward? For almost 50 years, the EU has been negotiating economic partnership agreements on our behalf. We think there are probably about 40 of them involving over 90 countries, although the numbers are difficult to get. We recognise that they vary in scale and scope, as the Minister said, particularly when dealing with developing countries. The EU has developed a mature system for preparing, negotiating and seeking approval for these agreements on behalf of member states. At present, they cannot come into full force without being ratified by every member country. Although the systems are sometimes a bit different, the process we are in now allows the Government to ratify the agreements before us in a definitional way, rather than ratifying the individual wording.
It is a bit ironic that only now, at the very end of the process, is our Parliament—the interests that I have explained range further than this party—given a chance to consider these agreements. It is surely time to think again about why we do this, even if the opportunity that may come from the EU withdrawal Act allows us to put down something more concrete in future.
The amendment that I have tabled to the Government’s Motion expresses regret, but we will not pursue it to a vote. I have tabled it primarily to afford us the chance to debate these trade deals in the one and only time we have to do so; but secondly, in so doing to highlight the lack of proper scrutiny, consultation and debate given to these EPAs and the other agreement; and thirdly, to point out what needs to change if or when we regain control of our trade deals after Brexit day. This is material and important, and time is pressing.
To repeat a little of what the Minister said, the deals before us are a group of trade agreements which, taken together, share the noble aims of enhancing sustainable development and bearing down on poverty. That is to be welcomed. Some aspects of the deals that she mentioned respect the countries we are talking about. They differ from traditional trade agreements by ensuring that there are asymmetries in favour of the developing country, which include, as she said, long liberalisation periods, flexible rules of origin and the exclusion of sensitive products from direct competition. They also strive to increase regional integration, as she mentioned, through regional preference clauses that make countries in the same region provide the same advantages to each other as they will do to the EU.
However, the worry is that these agreements have not lived up to the intentions of the EU negotiators. Many of the least developed countries already had special access to EU markets through the non-reciprocal “Everything But Arms” scheme. But under these EPAs, developing countries are being asked to open up to 80% of their markets to European goods and services within a decade of signing. Opening up domestic producers to EU competition so fast has led some to fear that it will decimate their local domestic industries. Carlos Lopes, the high representative of the African Union, has said:
“Africans have serious concerns about how the EPAs would affect their industrial development and the African Continental Free Trade Area”.
Some of the partner states have also complained that tariff reductions have eliminated a crucial source of revenue, which Governments desperately need to provide basic public services and invest for future growth. According to the UN economic commission, Ghana alone could lose about $300 million in revenue if it signs the EPA. Tax collection is notoriously difficult in many of these partner countries, where tariffs were a reliable source of otherwise elusive government funds.
Spio-Garbrah, the former Ghanaian Minister for Trade and Industry, says that as the EPA also requires the Economic Community of West African States to open its markets over a period, it is Ghanaian manufacturers, not exporters, who, if they are not competitive, may face challenges from European imports that may be cheaper, of better quality and more attractive to consumers. Yao Graham, co-ordinator of the Third World Network, said:
“In the manufacturing and other industrial sectors, the EPA will cost about 40,000 jobs in ten years. We also anticipate that there will be a collapse of domestic industry especially in the … manufacturing sector … It will also undermine ECOWAS economic integration and the wider process of intra Africa trade and lead to the loss of government revenue from trade duties”.
There are also claims that EPAs might become a barrier to intra-African trade. Carlos Lopes said:
“In most areas, the EPAs will actually hurt intra-African trade, weakening trade revenues and undermining trade-driven industrialisation in Africa”.
There may be unintended consequences in trying to tailor each EPA to a specific country or region. The EU may have created contradictions in treatment between African countries. It is not surprising that certain African countries have claimed that they agreed to sign the agreements only under duress. It has been said that throughout the negotiations the EU threatened not only to remove the special least-developed country preferences available under the EU-African, Caribbean and Pacific group of states programmes but to withhold generalised system of preferences benefits from more advanced African economies.
Of course, we surely need some idea of how these deals will benefit the UK economy, but when you look for an impact assessment, no figures have been produced. The Department for International Trade recognises that there is no econometric modelling for the impact of some of these EPAs on UK trade and assumes, particularly in respect of the Ghana and ESA agreements, that the same modelling that has been applied to the SADC agreement will apply, while noting that,
“the econometric modelling available does not provide the impact of increased exports on UK GDP, so this cannot be included in the NPV calculation”.
So we are a little blind about where the benefits come from.
So, despite good intentions, these EPAs, some of which have been characterised as having colonial overtones, have come to represent the very worst of international trade policy—at least, so it has been argued. Instead of initiating African growth, we are initiating an African decline. Instead of spreading good will, we are spreading resentment. Instead of creating friends, we may be creating foes. Can the Minister shed some light on how the EU came to promote these deals, despite the concerns expressed by civil society and, more importantly, people in the countries themselves?
Surely the lesson to learn from this debate is that trade matters. It matters because it is so fundamental in shaping the world in which we live. Modern trade deals such as this are no longer simply about tariffs as they cover services as well as vast areas of public policy. Modern trade deals have to be constructed with proper consideration for the environment, workers’ rights and human rights if we are to live by our principles. At the very least, we must respect our international obligations, be they on climate change, endangered species or the arms trade. We should go further and ensure that trade is used to make the world a better place.
We do not yet know whether the withdrawal agreement with the EU will survive. Certainly, from what the Minister said, we have a few years in which we will be able to see how this works in practice. I hope she will accept that there needs to be preparation for a possible future post-Brexit trade policy. We should also be putting pressure on the Government, while they are still part of the rule-making process, to ensure that any other trade deals struck by the EU are based on enduring principles as well as a foundation of transparency and consultation.
For example, the Trade Justice Movement is proposing some red lines for future EU trade policy, and UK trade policy, should that be independent. The points it makes include that trade deals: should be developed with full democratic scrutiny which provides for the involvement of the public, civil society and Parliament; should not take precedence over other societal priorities; should not lead to a race to the bottom on labour rights; should preserve the right to make policy in the public interest and make sure of the precautionary principle; should exclude public services; should allow Governments to regulate and tax international investment; should exclude ISDS mechanisms; should ensure that e-commerce is properly regulated and taxed; and should not prevent government using public procurement to support local communities to achieve social and environmental goals. That is a very ambitious but rather good list of issues that we think should be addressed by any new policy.
Underlying all that is surely the by-now unanswerable case for Parliament being involved in all stages of trade negotiations. Consultation, with committees being sent information, is not enough. We must have a system that will extend to existing EU trade deals that we might wish to roll over from the EU after exit day and will begin the long and difficult process of preparing for new ones.
The Government keep insisting that now is not the time to bring forward new plans, but I see no reason not to use the stranded Trade Bill to establish a new system for considering trade. Indeed, if we ever get to Committee, we have tabled a number of probing amendments on this and related issues that are available from the Printed Paper Office. On procedures, for example, we are proposing a new Joint Committee of both Houses of Parliament, modelled loosely on the Intelligence and Security Joint Committee. It would be charged with agreeing the mandate for future trade negotiations, overseeing the progress of negotiations and producing reports on how the agreements would work for the benefit of our national interest as well as that of the partner state. Such a committee could be responsible for recommending trade agreements to both Houses of Parliament for approval and reviewing the success or otherwise of existing deals.
However, Westminster is not the only authority that needs a voice. Each of our devolved Administrations will have significant trade responsibilities in future, and we need to provide a robust mechanism for involving them meaningfully. Our Constitution Committee has already urged the UK Government and the devolved Governments to engage in constructive dialogue on this matter. In particular, it suggests that the parties need to decide whether the Joint Ministerial Committee (EU Negotiations) will be replicated for trade agreements in the Trade Bill. I would go further and argue that some form of structural arrangement will be necessary for many aspects of what is rapidly becoming a federated group of nations within our United Kingdom.
As I said, we will not divide the House on this amendment to the Motion. We do not want to disrupt the process or, indeed, stand in the way of these partnerships. It is vital that, as one of the world’s largest economies, we improve our trade relationships with some of the smallest. These agreements probably represent the best that could be done in the circumstances, but my argument today is that those circumstances need to change. We must learn from the mistakes laid bare in the processes used to scope, negotiate and ratify the current agreements.
Finally, we need to choose a different direction for our independent trading policy, should we have one, that prioritises transparency and works not only for our self-interest but for the interest of the developing world. I beg to move.
My Lords, I thank the Minister for her opening remarks. However, I should say at the outset that I am not quite as sanguine as she is about the benign nature of the EPAs. I also thank the noble Lord, Lord Stevenson of Balmacara, for tabling his amendment to regret this SI, drawing attention not only to the shortcomings of the current parliamentary procedures when it comes to accountability and the scrutiny of trade deals but also to the iniquities of the EU EPAs. Although we on these Benches will not oppose ratification, we think it important to draw attention to some of the issues that the EPAs will raise politically, both for ourselves and the EU and for the third-world countries in Africa that I will predominantly be talking about.
The economic issues raised will not be that immense but I think the political ones are problematic. EPAs are controversial. The key question that arises is: who benefits more from EPAs, the partner country from the ACP nations—African, Caribbean and Pacific—or the member states of the EU? That is a question worth asking because EPAs were conceived as drivers of change to kick-start reform and contribute to good economic governance, helping ACP partners to attract investment and boost their economic growth. However, I am more inclined to agree with Traidcraft when it says in its well-argued briefing that rather than doing what they say on the tin, EPAs instead undermine development and hinder regional integration. Take, for example, Tanzania in east Africa, part of the ESA EPA. Tanzania, as a least-developed country, currently with duty-free and quota-free access in the EU under “Everything But Arms”, obviously has little interest in an EPA that offers reciprocal preferential access. Why would it?
On the other hand, Kenya, a non-LDC, stands to lose preferential market access for flowers in the EU if the EPA is not signed. Your Lordships will see the problems posed by EPAs pitting one east African nation against another. That is certainly not conducive to regional harmony, let alone promoting regional trade integration.
This is especially problematic now that efforts have been stepped up about the African Continental Free Trade Area. AfCFTA is unlikely to be fully implemented for some time, but it is indisputable that Africa needs regional integration without distractions, so that African countries can give each other the same preferential access as they give the EU. In the words of Vera Songwe, executive-secretary of the UN Economic Commission for Africa, and formerly a country director and senior economist at the World Bank:
“There should be a strategic pause on the EPA negotiation processes until the finalization of the CFTA”.
Will the Minister comment? It does not need much imagination to see that premature liberalisation will undermine development of infant industries and domestic production, leading to a decline in manufacturing and industrialisation and increased unemployment.
How shall we proceed? One way forward as we negotiate further free-trade agreements once—or if—we leave the EU and the implementation period is over, would be to pursue a more flexible EPA agenda which addresses specific concerns of the ACP countries, for example allowing greater flexibility if it can be shown that specific clauses undermine regional integration. EPA support measures could be reinforced to satisfy the requirements to promote inclusive and sustainable growth, in keeping with the sustainable development goals.
In particular, we should strive to meet the overarching commitment to leave no one behind. Under SDG 9, “Industry, innovation and infrastructure”, the UK has committed to meet targets 9.1 and 9.2. Paragraph 9.1 commits us to:
“Develop quality, reliable, sustainable and resilient infrastructure, including regional and transborder infrastructure”.
Paragraph 9.2 commits us to:
“Promote inclusive and sustainable industrialization”.
It would be useful to hear from the Minister what thought has been given to how the UK will approach trade deals with the developing world, should the unthinkable happen and we leave the EU with no idea of our destination—something that seems about to happen, maybe. I have little doubt that, should the opportunity to renegotiate these deals arise, they will be embraced enthusiastically by EPA countries.
Before ending, I raise reservations about the current process of ratification of international treaties and trade agreements. That this debate is taking place after implementation underscores how ludicrous is the current process, lacking accountability and parliamentary scrutiny. It is crying out for reform. The need for urgent reform is reinforced by the Government’s impact assessments, which are inadequate to say the least. Those for the Ghana agreement are a case in point. Within it are claims of unequivocal benefits from the agreement, despite acknowledging that there is a lack of quantifiable data to back up those claims. The assessment is one-sided and limited to the impact on the UK, with no mention of development impact. It makes unfounded claims that the Ghana EPA will support “more-integrated regional markets” and “simpler and more flexible rules of origin”, with no mention of the political friction created by Ghana signing a stand-alone agreement outside its customs union. Some might say that it was signed under duress.
Further, the impact assessments, although they concede a net deficit for Ghana, nevertheless, still propose that this is a developmentally friendly agreement. Examples can also be found in the other impact assessments, including the SADC countries—the South African Development Community—whose assessment states clearly that the impact on poverty reduction will be marginal.
It is clear that these impact assessments are not fit for purpose and highlight why greater parliamentary scrutiny of free-trade agreements is essential if the UK leaves the EU and moves towards negotiating its own trade agreements.
My Lords, as the noble Lord, Lord Stevenson, said, I was not sure that I would still be here this evening, but owing to changes in the timetable I am delighted to be here. The noble Baroness has already received advance notice of some of these remarks.
I support the amendment to the Motion because, from my limited understanding, ratification of these SIs has been a very disappointing procedure both in another place and in this House. It seems as though Parliament has somehow been the loser when it no longer has any influence in these international agreements. It is therefore perhaps inevitable that the Opposition have tabled an amendment, which deserves support from around the House.
I welcome the noble Lord’s remarks, first about the Trade Bill, because this is a preamble to what we expect to come; it is just a rehearsal. I also agree with the noble Baroness and the noble Lord that we need a committee dedicated to this particular subject—as we reorganise the EU committees, perhaps. There is no question about that.
Be that as it may, as we have heard, there are questions hanging around the EPAs from a decade ago that still concern many organisations with expertise on trade. I have worked with some of them over the many years that I have been working on development. Taking Africa alone, I can think of worries about rules of origin, GIs, reciprocity, and about tax—in short, about whether EPAs or interim EPAs are really worth having when you already have 100% access to EU markets through the EBA agreements and the GSP+. There is also a concern, as we have heard, about whether the regional groupings such as SDEC and ECOWAS can truly reflect the situation of individual states, which are all so different. Then there is education: how many citizens in these countries are sufficiently aware of the pros and cons of entering these agreements?
I know that I am bringing up very old concerns that have been expressed by civil society over many years. I hope that the noble Lord, Lord Judd, will follow me and show some of his experience of fair trade over many years. ActionAid, ODI and Traidcraft have done a lot of work on the effects of EPAs on wealthier countries such as Ghana and Kenya. But the question is whether our Government have provided enough answers. Should there not have been more impact assessments to accompany these SIs? The whole point of scrutiny is that you are given a proper opportunity to make judgments, and quite apart from the strange ratification process already referred to, it seems that proper briefing on this occasion has been sadly lacking. So does the Minister agree, apart from answering all the questions first, that this whole procedure is back to front anyway; and, secondly, does she believe that some countries affected are being dragged into this by the EU without proper consultation and examination?
My Lords, there is nothing I like more than to oblige the noble Earl, Lord Sandwich. It was good to hear what he had to say.
Central to our whole approach to European Union matters at this moment is the concept of bringing government home and of increasing our powers of scrutiny and accountability. Treaties of this kind, with their immense implications, opportunities and dangers for vulnerable and young economies, are no exception if we are to follow through the logic of what we have been arguing. It is not satisfactory to have an arrangement whereby the Government will listen to those committees with adjacent and valid observations to make. This House needs to have specific arrangements for scrutinising what is being done in this context.
That was my first point. Having made it, I want to stress another point. For those of us who have been involved in these matters for much of our lives, one of the heartwarming elements of the evolution of the European Union has been the increasing degree of co-operation and co-ordination in the work of member countries. As on much else, I am dismayed that we are proposing to cast this aside with no clear information about how we are going to put in place something to compensate for what is being lost in the European context. Of course, I am one of those who believed that the challenge was to strengthen the right things that were happening in Europe. I am not quite sure how we will be able to do that if we have just told Europe that we want to leave it. It is terribly important that we have some specific reassurances on the details of how the Government intend to compensate for what is being lost.
The noble Earl, Lord Sandwich, was kind enough to refer to my past involvements in these matters. My life has involved a lot of time working with vulnerable and sensitive economies in the world. I have frequently reflected that very little else is more important than the economic relations which those countries have with the world outside. It is often put forward that we must all strive for a level playing field, but there is a fundamental issue at stake here. There are many parts of the world where this is gibberish because they are in no position to stand up, let alone play in the common field that already exists. They have to be specifically assisted in being brought to a place where they will be able to fend for themselves. It is generous, kind and well intentioned to say that we want to help them with officials who can help them with the work involved and so on, but that is really rather patronising. What they want is to be able to stand up for themselves, on their own terms, and play their part fully. I have seen so many examples where outside investment comes in to countries with desperate poverty where there has been a very labour-intensive approach, particularly to agriculture. Going over to mass production of cash crops on a capital-intensive basis has done terrific damage to social justice in the countries concerned. There is a great deal at stake in this sphere.
I do not want to be churlish. The Minister has obviously taken the point: the emphasis on third world relationships in her introduction was encouraging and I am grateful. My noble friend’s essential amendment is helpful. It saves having to say that it is the detail that matters in these things. That is why it is essential to have reassuring arrangements in place, not least for scrutiny.
It seems to me that in a rational approach to economic affairs in the world, mixed economies are terribly important. I am a strong mixed economy man. However, having mixed economies involves a mixed approach to the private sector. There are some areas where labour-intensive approaches should be encouraged in the greater social cause, and others where capital-intensive investment should be encouraged in terms of the strength of the overall national economy. However, there are no sweeping theories as to how to get this right. It involves a very pragmatic approach that requires a lot of care, experience and knowledge.
I am not reassured by what is happening at the moment; in fact, I am very worried. Therefore, if the Minister is making a valiant stand in favour of the good, the amendment of my noble friend will provide the muscle to let it happen.
My noble friend is absolutely right to ask how trade policy agreements and treaties will be determined after we withdraw from the European Union. In fact, this is a matter that concerns your Lordships’ Constitution Committee, and it has launched an inquiry to investigate the efficacy of our role in the scrutiny of treaties and how this should be handled post Brexit. I am sure that it will welcome the Minister’s undertaking regarding consultation and engagement.
At the moment, these arrangements are scrutinised by the European Union Parliament and the Commission, and we receive them for approval as secondary legislation. The Secondary Legislation Scrutiny Committee looks at this but of course, as other noble Lords have said, there is very limited scope for comment because the arrangements have already been agreed.
I sit on the Secondary Legislation Scrutiny Committee and our work is to see how these treaties slot in and work with UK law. We had two examples at our meeting yesterday. One dealt with CITES, the arrangement regarding international trade in endangered species, and the other was the Nagoya agreement, which deals with animal tissues—both important matters. The purpose of the statutory instrument is to ensure that these arrangements continue after Brexit, and all the committee did was to make sure that the wording was more appropriate; it did not change anything else.
However, the Explanatory Memorandum promises a further document that will attract the affirmative procedure and transfer powers of enforcement from the Commission to the Secretary of State. So my noble friend is right: here, we are concerned only with the mechanics, not with the rights and wrongs of the arrangement.
My noble friend gave the figure of 40. A paper prepared by an experienced clerk to the Secondary Legislation Scrutiny Committee says that in the last seven years the UK has been party to 225 new treaties. By treaties, he means agreements with a specific country or with an organisation such as Euratom, or a thematic agreement such as the convention on pollutants. We have also had statutory instruments putting in place the mechanism for enforcing sanctions against other countries. For instance, we recently had one against North Korea.
The noble Baroness, Lady Sheehan, made the point that at present the principle of these arrangements is agreed elsewhere. Our work in future will be to scrutinise them from the point of view not only of UK law but of UK usage: the way we do things; compatibility with our values, way of life, standards and priorities, as other noble Lords have mentioned.
So my noble friend is absolutely right to raise this matter. These treaties will require a lot of scrutiny, consideration and careful thought. I join my noble friend in asking the Minister to come forward with proposals on how these matters will be determined after our withdrawal. I am sure that your Lordships’ Secondary Legislation Scrutiny Committee will also be interested in the Minister’s response. This is intimately bound up with my noble friend’s amendment calling on the Government for proposals on how trade policy will be determined. These treaties affect so many of the non-tariff barriers that noble Lords have raised. These non-tariff barriers are now much more important than financial tariffs, especially to a country such as ours, where services are a major part of the economy. I support my noble friend’s amendment.
I thank noble Lords for their contributions. If I breached convention, I offer my apologies particularly to the noble Lord, Lord Stevenson of Balmacara. I was aiming to address some concerns and did it in a different way. Some of these points are absolutely apposite to the SI, while others talk about the future; I will just glance on these, because I understand the issues.
The noble Lord, Lord Stevenson of Balmacara, the noble Earl, Lord Sandwich, and the noble Baroness, Lady Sheehan, talked about a number of challenges, such as the development benefits and merits of EPAs versus unilateral preferences. There is a little bit of history here, in that some of our previous unilateral preferences were deemed not to be WTO-compatible, so we had to move to a different mechanism. We have chosen EPAs because they are much more development-focused, and the aim is to promote and increase trade over time. Having studied EPAs and preferences, I have seen that not all but most countries get better access under EPAs than they would under preferences.
For example, two-thirds of markets are open to Ghana—which I visited recently—for tariff-free access under preferences, but 100% under the EPA. Its prepared fish, coffee beans and cocoa would be affected. I went to a tuna-processing factory while there and heard that they were particularly keen that we continue that EPA, because they saw the benefit. Opening up needs to be done over time, as we agreed, because these are developing countries and liberalisation takes time. In addition, we provide support through improving trade facilitation and customs rules. A lot of our development funding also supports these nations. We are here not to create foes but friends. We are here to build mature, long-term trading relationships, and to open them up asymmetrically. I am happy to confirm, by way of demonstrating that these are seen as attractive, that all parties to the EPAs have expressed an interest in rolling them over to provide continuity. If they were really so unhappy about them, I do not think they would do that.
The noble Lord, Lord Judd, raised a point about liberalisation. There is no doubt that we have to take into account the concern about this happening too quickly. That is the fundamental issue with liberalisation. But EPAs try to have proper timing and allow us to put control in the hands of the developing countries, which can choose sensitive products that they really do not want to be opened up. I agree that, if it was immediate and done with no protection, liberalisation would be an issue. However, even if we have not initially treated products as sensitive and cut them out, the EPA includes safeguards that can be applied: the tariff-rate cuts can be suspended and tariff-rate quotas can be applied. I agree that there are issues, but through these EPAs we try to address a number of those.
I am obviously heartened that the noble Baroness agrees there is an issue, but there is perhaps one specific aspect on which she might give us a word or two. In evolving situations, what is suitable at one point will not be suitable at another—she has alluded to this herself. We have to be careful about what may seem appropriate at one stage if, for example, a country wants to start processing its primary produce. That is quite a hot issue. Are we in favour of its development or are we not? If we are, how do we facilitate its becoming a player and marketing its manufactured and processed primary products? Such a country may become very competitive in the world economy—but then we keep hearing about how competition is a good thing. We need a bit more detail on this.
We are trying to make these countries long-term trading partners. We provide support to help build and encourage investment, and it is likely that that will increase the processing capability of some of their plants, and will, therefore, potentially create competition for some of our companies. In a sense, however, that is what we are trying to do: to bring up trade. As the noble Lord, Lord Stevenson, said, trade matters and can lift up nations. It is not about a single point in time; we are trying to encourage investment to help these nations move up and become long-term, mature trading partners that we can continue to deal with in the future.
I turn now to another area raised by the noble Lord, Lord Stevenson of Balmacara, the noble Earl and the noble Baroness, Lady Sheehan: the question of regional integration. The EU has been one of the biggest supporters of African integration and efforts to deliver a continent-wide agreement. The EU has aligned the EPAs with the existing economic and customs union, seeing that as the best way, according to the preferences of EPA partners. It is clear that they are numerous and overlapping, not by the design of the EU but because we have worked with the flow of what it has done. To try to support regional integration, we are encouraging the African states to extend to each other the same level of liberalisation. This is to make sure that they aim to prevent increased imports from the EU displacing imports from neighbouring countries.
The issue has not been raised—I can hear it coming—but the most-favoured nation clause that might result from that is specifically designed to ensure that it applies only to major economies, and that excludes most of the African nations. We are genuinely trying to work with the flow of regional integration.
On the point raised about the AfCFTA by the noble Baroness, Lady Sheehan, it is a cross- African CTA that is being worked on and, as she will know, it has taken a while. We will continue to support the efforts to do that but in the meantime we believe that EPAs are a way of allowing those countries to progress.
As to the economic benefits, because these are EPAs they are asymmetric in favour of the developing nations and that is why we are seeing limited benefits in the short and medium term to the EU countries, including the UK.
The noble Lords, Lord Haskel, Lord Judd and Lord Stevenson, the noble Earl, Lord Sandwich, and the noble Baroness, Lady Sheehan, raised the issue of parliamentary scrutiny. The noble Lord, Lord Haskel, was helpful in laying out what the current scrutiny is under the EU system. In taking forward the existing trade agreements, we have said that we will try to replicate them to provide as much continuity as possible. In the interests of providing parliamentary scrutiny, we will make sure that a report is prepared outlining any changes that have been made and provide opportunities for debates in both Houses to allow Members to comment on those change before ratification under the normal procedure. So we have tried to address the issue of trade continuity agreements.
This SI is not about future trade policy nor about our future scrutiny arrangements. As I said in my opening remarks, an Oral Statement was made in the other place by the Secretary of State, who laid out some of the ways in which we will engage. There will be a 14-week engagement across civil society, with unions and businesses, and that consultation is taking place on four potential free trade agreements. We will then create an outline approach which, again, will be made public and available to Parliament. Through that process, reports and accounts will be laid before both Houses.
In this House there are a number of Lords committees but none with a specific remit on trade policy. It is not for me to determine for the House of Lords what committee would be appropriate but, as I said, I am keen to talk to noble Lords and hear their ideas. At the moment we are working out our proposals but, ultimately, if any new committee were established it would be for the House of Lords to make its own decision on what that would be.
On the question of involving civil society on these existing EPAs, as I have said, we are continuing to engage actively with civil society. However, under the existing EU approach, there is a joint civil society engagement which takes place under the existing SADC EPA to allow those states’ approach to an effective implementation of the EPA, and it is on the implementation side where that civil society involvement is continuing.
I agree wholeheartedly with the noble Lord, Lord Stevenson of Balmacara—trade matters. We need to get that right. We remain committed to engaging further with Parliament as we develop an independent trade policy. We will continue to work with stakeholders across the UK to ensure that our policy delivers for this great nation.
I encourage noble Lords to support the UK’s ratification of these agreements, which will demonstrate to these countries the importance to the UK of agreements with them, as well as our commitment to development and global prosperity.
It would be conventional for the Minister to persuade me to withdraw my amendment, if she could. Otherwise, the implication is that the Minister is quite happy for it to be moved.
I would be grateful if the noble Lord would withdraw his amendment.
I am sorry about that bit of theatre. It just makes the point that the structure has to be right or we cannot get to where we want to be: a mutually agreeable situation.
I thank all speakers for participating in the debate. As I said, the aim all along was to have a debate on issues on which we agree. More about this issue unites than divides us, and it is good to have a chance of an open debate on issues of such importance. In fact, it was a special treat to have such expertise and experience represented by the noble Lords who spoke; we were able to pick up on some important points that I am sure we will want to take away and think about when we come to read Hansard.
In her contribution, the noble Baroness, Lady Sheehan, used the examples of Kenya and Tanzania. She made all the points that had been picked up elsewhere about the difficulties for two countries with common boundaries yet completely different profiles on where they want to get to as societies with different experiences and opportunities. As she said, the present arrangements are unlikely to result in regional harmony, let alone the growth in economic activity that we all want.
I will read the Minister’s second speech in Hansard quite closely. She used “we” quite a lot in relation to the way in which these treaties have developed. It is quite unusual these days to find Ministers of Her Majesty’s Government talking as if they were speaking on behalf of the organisation with which we are all involved—the EU—but I take it that she used that word in the sense of the EU trying to achieve certain aims and objectives. That may be a small point, but I enjoyed it. The EU has done some good work in this area; despite the criticisms we have all heard, there is something of value at the end of this process. We should recognise that.
However, the points made by my noble friend Lord Judd are very important. We must not fall into the trap of assuming that some sort of “Made in Brussels”—I do not mean that in a negative sense—mode of liberalisation is the right one for the range of countries we have to deal with. It must be a question of fitting what is appropriate to where the various areas and countries are. I take the point that, by working with the existing arrangements in Africa and South America, there is a better chance of those arrangements working and bringing us the benefits that we are looking for. On the other hand, it is clear from the comments I read out, which other noble Lords have mentioned, that there is some dispute about that. Again, that makes the point that this issue is important and we must not let it go by default; we must engage with it in some way. Even if we go down the routes being offered to us, the question of who assesses that and under what terms of reference—for example, what success looks like—is uncomfortable for those who spoke tonight. Perhaps the Minister could take that away.
Moving on to the future, I do not want to sound too critical but, although there was a welcome sense that engagement with Parliament is an important aspect of the work going on in the department, I did not get the impression that any of the proposals made by either myself or other noble Lords—such as my noble friend Lord Haskel on behalf of the committees he is involved in—reached out in a way that fits with the purpose of the amendment. We may need to go through the Trade Bill and pick up the points there, because there are amendments down that would certainly open up that opportunity. To make the point more fully, if all we are being offered is a bit more information, a bit more consultation at arm’s length, a bit more engagement with civic society, but no real sharing of the process of agreeing and moving forward the agenda, I do not think that fits where we are in terms of where people want to be on trade. Trade is important because it matters, and if it matters then people need to find an echo of that.
Although I mentioned them in my speech, I did not hear the Minister talk about the devolved Administrations. Clearly, it is not her departmental brief to do that, but if we do not get that right, we will all just go into a brick wall at great speed and it will not work. These matters will be devolved to these Administrations and they will have their own views. There has to be some structure, some constitutional arrangement, which gives them confidence that their justifiable and important issues will be raised as part of the process.
It may be that a Lords committee is the right solution, but I do not think that takes the trick. I will argue very forcibly in the Trade Bill that we need to think harder about what powers are given, to whom, and for what purpose, and what process will help to engage the country thereafter. There is a frustration that the lack of information and movement on this will build up. If I can leave the Minister with this, my feeling is that you cannot leave this too long. It may be that, if everything goes smoothly with the Prime Minister’s proposals, there will be a period of two years, or possibly longer, in which we can work these things out, but there is a lot of interest and expectation now and I think it would be a mistake not to recognise that going forward.
With that, and with the Minister’s strong request that I withdraw my amendment ringing in my ears, I beg leave to withdraw.
Amendment to the Motion withdrawn.
Draft Parliamentary Buildings (Restoration and Renewal) Bill
Message from the Commons
A message was brought from the Commons that they concur with the resolution of this House of 23 October relating to a Joint Committee to consider and report on the draft Parliamentary Buildings (Restoration and Renewal) Bill presented to both Houses on 18 October (Cm 9710) and that they have made the following orders:
That the Committee should report on the draft Bill by 28 March 2019.
That a Select Committee of six Members be appointed to join with the Committee appointed by the Lords for this purpose.
That the Committee shall have power:
(a) to send for persons, papers and records;
(b) to sit notwithstanding any adjournment of the House;
(c) to report from time to time;
(d) to appoint specialist advisers; and
(e) to adjourn from place to place within the United Kingdom.
That the quorum of the Committee shall be three.
House adjourned at 7.31 pm.