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Lords Chamber

Volume 796: debated on Tuesday 26 February 2019

House of Lords

Tuesday 26 February 2019

Prayers—read by the Lord Bishop of Oxford.

Short-term Lettings

Question

Asked by

To ask Her Majesty’s Government what consideration they have given to giving greater power to local authorities to deal with issues arising from short-term lettings.

My Lords, in begging leave to ask the Question standing in my name on the Order Paper, I declare my interests as in the register.

My Lords, where short-term lets breach the rules, local authorities already have numerous powers to take action. We are strongly encouraging industry to continue its progress on promoting best practice, and to support the efforts of local authorities to ensure that short-term lets comply with the rules. I am pleased to hear that the noble Baroness has now met with the Short Term Accommodation Association to discuss this important work.

I thank the Minister for that reply. It was his advice that I should meet the association, and I found it very productive. Airbnb was among the members that attended, which was quite interesting because there has been a conflict here before. When the Minister asked Airbnb, it said that it sorted all this information; when I asked it, it said that it did not. At the meeting, I asked which of the two was the right answer. The real answer was that it asks users to verify that they have all the necessary permissions for short-term lets. Airbnb is not asking them to produce them or to show that they have that right. It just presumes that they do if they say yes. In view of the fact that HMRC has no interest in this huge field, it is time that some more action is taken.

My Lords, the Short Term Accommodation Association is grappling with problems of sharing data under the current law, and it is trying to proceed with that. It also has a conference on 14 March, to which it has invited every single local authority in the UK, although this is a devolved issue. That is a sign of its determination to tackle this—as is the accreditation programme which it is setting forth.

Of course there is a case for clear regulation, but does the Minister agree that Airbnb and others, since they are popular, are meeting a gap in the market?

My Lords, I agree with the noble Lord on that. It is nevertheless important, as he acknowledged, that they satisfy certain conditions. Those that join the Short Term Accommodation Association sign up to a code of conduct. That has been circulated to all houses in Westminster, with which it has a particularly close association. It is the aim of the Short Term Accommodation Association to roll that out nationally.

Did the Minister see BBC London’s documentary last night, in which undercover work revealed that three private sector companies were helping private landlords find their way round the 90-day limit in London? Does he agree with Generation Rent that the data should now definitely be released to local authorities, because otherwise it is almost impossible for local authorities to enforce?

My Lords, I did not have the privilege of seeing that programme last night, as I had duties in the House, but I have had reports of it. Those businesses to which the noble Baroness was referring are not members of the Short Term Accommodation Association, although we would certainly encourage them to join it; the association is seeking to ensure that they do.

My Lords, the Minister knows that his department has established a working group, which I have the pleasure of chairing, to look at the regulation of property agents: those doing sales, lettings or management of property. The companies that do the short-term lettings do not have any regulation at present. Will the Minister comment on whether the new regulator of property agents—which I am sure will come to pass—should cover the short-term lets as well as the longer-term lettings that it definitely will be covering?

My Lords, I thank the noble Lord for all that he does, not only in relation to the regulation of property agents, but more generally in the area. The noble Lord has written to my honourable friend the Minister for Housing and Homelessness, and she will be replying. As I said, it is our intention that the Short Term Accommodation Association is the route forward, with the code of conduct that it is progressing, rather than that this coming under the ambit of the property agents group to which he referred.

My Lords, Airbnb lettings have increased by 187% in London since 2015, and 678% in Birmingham. Should not properties let on this basis be subject to business rates? I refer to my local government interests in the register.

My Lords, Airbnb is the market leader and is doing a good job within London, which is the only place where the 90-day limit applies. Its software ensures that you cannot go over the 90-day limit. As I understand it, to qualify as a business, you have to let for a minimum of 120 days, so that could not apply within London, but it could elsewhere, depending on the facts. I am not an expert in that area, but I do not think that it could apply in London because of that simple statistic.

My Lords, will Ministers send a guidance note out to local authorities to advise them to adopt the Newham scheme, which I have raised on a number of occasions in this House, for the way that landlords should be treated when they are in default?

My Lords, the noble Lord will be aware that I have previously referenced the guide that has been developed with Westminster, which the Short Term Accommodation Association wants to roll out. In fact, there are two guides: one is for landlords, which is currently being used in Westminster and it is intended should be used elsewhere; the other is for managers of blocks, and that would apply generally to residences in central London. There are therefore two codes of conduct that are central to what the accreditation body—or what we hope will become the accreditation body—is doing.

Online Safety

Question

Asked by

To ask Her Majesty's Government what action they are taking, in the light of concerns over child bullying and suicide arising from online activity, to strengthen controls over internet providers.

My Lords, the Government have been clear that more needs to be done to tackle online harms, including cyber-bullying and suicide and self-harm content, and that the internet companies have a responsibility to their users. The forthcoming White Paper on online harms will set out a range of legislative and non-legislative measures to keep UK users safe online.

I thank the Minister for that helpful response. As he said, we are constantly bombarded with stories of suicide, self-harm and bullying on the internet. What can the Government do to co-ordinate efforts to combat such activity online? In doing so, are parents and children involved in discussions on co-ordinating initiatives? Do the Government recognise the importance of not only protecting but empowering children to be resilient and aware of the danger of the internet so that these terrible things do not happen?

Obviously, I completely agree about the importance of this subject. There is a growing realisation that despite what the big social media companies say they are doing, it is not enough. Hardly anything is more important than protecting children. We support an open and free internet—we think that it is good for the economy, human rights and free speech—but we acknowledge that the Government have a duty to make sure that social media and big tech companies are held to account. We will put out the online harms White Paper to do that. On involving young people in discussions and increasing their resilience, my noble friend Lord Agnew introduced what the Department for Education is doing for relationships education, sex education and health education in secondary schools. The proposed guidance and regulations cover subjects such as how to stay safe online, critically considering information and how people present themselves online, rights and responsibilities, how data is gathered, shared and used, the benefits of balancing time spent online and other important areas, such as consent.

My Lords, an NSPCC survey found that six out of 10 parents do not think that social networks protect children from inappropriate content, such as self-harm and suicide. Nine out of 10 parents support the regulation of social networks to make them legally responsible for protecting children because, unfortunately, many parents lack the knowledge and confidence to protect their children effectively from online threats. What are the Government doing to encourage and improve digital literacy, especially among parents? Will the Government consider introducing age verification on social media sites as soon as possible to keep our children safe?

I do not want to give anything away but the noble Baroness has set out many of the reasons for bringing forward the White Paper. I agree with how the public feel. It is a question of building trust in these big companies if the benefits are to continue. We will cover education in the White Paper—that has already been talked about—including for parents. The UK Council for Internet Safety has already developed a framework to equip children and young people for digital life and a practical guide for parents, but we will see more on that subject in the White Paper.

My Lords, the White Paper has been amply referred to; we all look forward to it. I was at a seminar led by the Secretary of State the other day, where he made very high claims for it. He said that things have never been done like this before—that is, in a way that will have an impact on the whole world of IT. He set his standards very high indeed so we will be watching to see whether the proposals match his great statements. I worry that whatever we propose from within our own geography, not just on social media but on global social media, will depend on similar responses from other parts of the world. We have an international treaty to limit nuclear weapons. Knowing what we now know, is it not time that we started an initiative to bring the international community on board and into the conversation, recognising that this is a universal problem that needs a global response?

I agree, which is why we are already consulting with our international partners. There are different views of how the internet should be taken forward, but for child protection and the more egregious things that social media companies do, there is an issue of internationalism, not least how regulations are enforced. That is something we are considering, and one of the benefits of doing it in the traditional way of having a Green Paper, a White Paper and then legislation is that we will continue to have consultation with noble Lords, which we are prepared to listen to. We will set out the views of where we think we are going, but we are open to consultation as well.

My Lords, instead of simply—and importantly—mitigating the harms done on the internet, might we consider a step change about designing the whole thing differently? Does the Minister agree that, instead of thinking about Facebook, Twitter and the like as platforms, if we thought about them as public spaces, required to have a duty of care like any other public space and be regulated accordingly, we would find ourselves in a different place? Is this something the Government are considering?

My Lords, I welcome the response that Matt Hancock has given to the father of 14 year-old Molly Russell, who took her life in 2017, having visited one of these suicide sites. That was a year in which the suicide rate among young females increased by 38%. As long ago as 7 December 2006, I asked the Government to amend the Suicide Act 1961 to enable the,

“banning of internet sites which may incite people to, or advise people on how to, commit suicide”.—[Official Report, 7/12/2006; col. WA 157.]

This is an issue I have raised on a dozen occasions since then, along with the noble Baroness, Lady Massey. While I welcome the White Paper and legislation, will the Minister confirm that this is an urgent issue, which ought to be dealt with as expeditiously as possible?

I agree that it is extremely important; we should expect social media companies to have responsibility, and we should hold them to account. The Secretary of State for Health and Social Care has met social media companies, and written to them on this issue. He had a round table on 7 February to discuss what more can be done, and his department will be hosting a follow-up round table in two months to review progress, so they are taking it seriously. In addition, bearing in mind what the right reverend Prelate said, we are thinking about those issues, as the noble Lord will see when the White Paper comes out.

HS2: Electricity Supply

Question

Asked by

To ask Her Majesty’s Government whether HS2 Ltd will fulfil the requirements of public procurement regulations by obtaining its electricity supply through transparent and competitive tendering; and if so, how.

I beg leave to ask the Question in my name on the Order Paper, and refer to my interests in the register.

My Lords, HS2 will identify a suitable partner to supply electricity for the operation of the railway through a transparent and competitive process, in compliance with the Utilities Contracts Regulations 2016. HS2 Ltd is in the process of undertaking a strategic assessment of electricity sourcing options, and will produce a fully costed business case, which will then form the basis of a recommendation to the Department for Transport.

I thank my noble friend for that encouraging reply. HS2 will have a gargantuan appetite for electricity—about 3 terawatt hours per year, or 1% of the entire UK electricity demand—costing several hundred million pounds per year. She will be aware of a recent report from KPMG to HS2 Ltd, which recommended that HS2 do a sweetheart deal with the wind industry to build new wind farms specifically to supply the railway, though not necessarily along the line, with a hidden subsidy, the cost of which would be passed on to the traveller and/or the taxpayer. Can she confirm that this would break the rules on public procurement?

I thank my noble friend for his question and I share his desire to ensure good value for money for taxpayers and indeed passengers. The advice given in the KPMG report is that while the wholesale price for electricity is forecast to increase over the long term, the price of renewable energy is coming down, so it recommended signing a long-term contract for the supply of renewable electricity. I should reiterate that the report represents only advice to HS2. No decision has been made and, before any contract is signed, HS2 will need to present the proposed energy strategy to the DfT. Whatever strategy is agreed, HS2 Ltd will be required to demonstrate that it has complied with the Utilities Contracts Regulations 2016.

My Lords, this Question highlights the fact that HS2 will be an electrified railway, which is much more environmentally friendly and cheaper to operate than a diesel line. The Government have recently abandoned or deferred major mainline railway electrification projects. Will they now restore those projects and put them on the same footing, electrification-wise, as HS2? Further, will they confirm that they will proceed with HS2 north of Birmingham to Manchester and Leeds?

My Lords, we have had to take some difficult decisions on electrification, which we are bringing forward where it is in the interests of passengers. I confirm that we are absolutely committed to continuing HS2 north of Birmingham. It is going to bring great connectivity to our great cities of the north.

My Lords, there is growing hope and, dare I say, even expectation that the Government will eventually scrap this hundred-billion pound vanity project and spend the money on railways throughout the rest of the country. In the meantime, money is haemorrhaging away and the lives of people along the route are being ruined by this scheme. Can I urge the Minister to try to persuade her colleagues to come to a decision and make an announcement as soon as they possibly can?

My Lords, I am sorry to dash my noble friend’s hopes but we remain committed to phases 1, 2a and 2b of HS2. As I have said, it will improve connectivity across our country. Our railways are full, with the doubling of passenger numbers since privatisation, and it is essential that we build a new line to allow space on other rail lines and thus improve things for passengers.

My Lords, I am pleased to hear the Government’s continued support for HS2, but the department which failed to set up a contract to deliver a few extra ferries is unlikely to inspire public confidence in the management of big projects. How are the Government ensuring that every aspect of the HS2 costings is re-examined and questioned so that we can be confident that it is good value for money?

My Lords, I agree with the noble Baroness that we have to ensure that the project is good value, because £55.7 billion is a lot of money. The full business case is planned for later this year, and that will reassess the phase 1 scheme against the standard business-case criteria. That business case will provide an updated benefit-cost ratio for the phase 1 scheme.

My Lords, when are the Government going to kill this white elephant off and switch the funding to rail schemes around the country that are starved of investment?

My Lords, if I have not made it clear already, we are committed to HS2. As well as the £55.7 billion investment we are making in HS2, we are spending record amounts on the rest of our railways— £48 billion over the next five years.

My Lords, a lot of people understand that HS2 is a complete folly. Having said that, if it is going to go ahead, the Wildlife Trusts have had an excellent idea to give the project at least some green credentials. It is that green wildlife spaces should be set up, reaching a mile on either side of the railway, with green bridges to not only enable wildlife to travel through Britain but also to provide recreational opportunities for people.

I agree with the noble Baroness that this project will help to improve the environmental record of our travel, by ensuring that people travel using high-speed rail rather than roads. That will be a benefit. I have seen the plans for the green spaces and green bridges. HS2 is committed to environmentally friendly practices including woodland areas, and is considering those plans carefully.

Does the Minister share my concern or perhaps she even recognises the inevitable: many sections of the House are following a long tradition of this House in opposing the building of railways anywhere and at any time. beginning with the London to Birmingham railway in 1830? Can she assure us that this investment, which is essential to the people of the Midlands, will go ahead, especially in view of the fact that there never seems to be anything like the same level of objection to hugely expensive schemes such as Crossrail in London—which I also support? They appear to go ahead much more easily than anything which might benefit the Midlands.

My Lords, the last time we built new rail links to the centres of our great northern cities Queen Victoria was on the throne, and I entirely agree that it is high time we built more. When HS2 is up and running, by 2033, up to 18 trains will run each hour, carrying up to 1,100 passengers each and serving 100 million passengers each year. This investment will continue.

Social Mobility: Regional Attainment Gap

Question

Asked by

To ask Her Majesty’s Government what plans they have to respond to the report Closing the Regional Attainment Gap published on 21 February by the All-Party Parliamentary Group on Social Mobility.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper, and declare an interest as co-chair of the APPG on Social Mobility.

My Lords, the Government welcome the report, and its focus on the attainment gap between disadvantaged pupils and their peers. The gap has narrowed by around 9.5% since 2011. We continue to prioritise social mobility by investing on average £2.4 billion a year in the pupil premium to support the most disadvantaged pupils. We are targeting extra support on areas facing low educational outcomes, particularly through the opportunity area and Opportunity North East programmes.

I thank the Minister for his Answer. The APPG report paints a stark picture of the regional attainment gap between pupils from disadvantaged backgrounds and their more affluent counterparts, and shows how areas of low social mobility will worsen unless action is taken. The report recommends redesigning the pupil premium as a social mobility premium, which schools could use to spend on extra pay or other forms of support for teachers in deprived areas. What steps are the Government going to take in these areas?

My Lords, I first acknowledge the tireless work that the noble Baroness does in this incredibly important area of social mobility. To answer her specific question, the funding provided through the pupil premium means that there is funding available to support local priorities such as recruitment, retention and development of teachers. Further to this, we recently published the teacher recruitment and retention strategy, which reiterates our ambition to shift incentives so that more good teachers work in schools with more disadvantaged intakes.

My Lords, what measures have the Government taken specifically to deal with the needs of minority pupils and minority communities, where young girls and women, in particular, are discriminated against at will? Are there specific measures that would deal with this problem?

My Lords, all our efforts around social mobility are aimed at helping all those who are not getting a fair crack of the whip. We have 12 opportunity areas operating at the moment and, just to take the case study of Derby, where money is being specifically targeted to help children who are struggling to read or have English as an additional language, we are already seeing improvements at key stages 1 and 2. Things are improving faster in Derby than nationally.

My Lords, may I raise another issue from the report? It highlights the problem of teacher retention, and teachers feeling that their professional status is not being invested in. Across the OECD the average amount of time spent on high-quality continuing professional development is about 50 hours; in the UK it is half that. Have the Government any plans to increase the availability of continuing professional development?

My Lords, we have recently announced the recruitment and retention strategy, and I agree with the noble Lord that retention is probably the greater priority, because it is a terrible waste when good young teachers leave the profession. We have put much more focus on ongoing CPD for teachers, particularly in the second year, reducing their teaching load so that they have more time for support. We have announced a £30 million investment in tailored support for certain schools with recruitment and retention challenges, which is designed to help schools improve existing plans, join national programmes, build local partnerships or fund new initiatives.

My Lords, what specific measures are the Government taking to increase the low number of care leavers going into higher education?

My Lords, in addition to the pupil premium we also have an enhanced pupil premium specifically aimed at that most vulnerable group. One of my personal missions has been to increase the opportunities for care leavers to attend boarding schools, where, according to a small study in Norfolk, their educational outcomes showed a dramatic improvement.

My Lords, the report also draws attention to the importance of and lack of funding for early years education and centres. The Government’s 2017 report, Unlocking Talent, Fulfilling Potential, indicated that in areas of high deprivation between 40% and 60% of children arrive at school when they are not what is classified as school ready. What are the Government doing to address this lack of funding for early years education?

My Lords, we are investing more in child care support than any other Government—around £6 billion for the year 2019-20. This includes funding for our free early education entitlements, on which we plan to spend £3.5 billion this year alone. The noble Baroness will also be aware of the great efforts we are making around phonics, which are leading to a dramatic improvement for young people. Some 163,000 young children are now able to read at a higher level; that is more than the population of Norwich.

Can the Minister investigate how this country is being held to ransom by a number of dangerous former pupils of a school called Eton College?

I get the sense that the noble Lord does not approve of that great institution—but even his party has had many leaders from it.

My Lords, disadvantaged pupils in the north-east have the lowest scores in the country. Would the Minister or other members of the department be prepared to discuss the situation in the north-east with local authorities in that region? Again, I refer to my local government interests.

My Lords, I am pleased to be able to tell the House about Opportunity North East, a programme launched in that area specifically to address underperformance. We have five priorities: addressing the progress—or lack of progress for some children—between primary and secondary, improving secondary outcomes, helping schools attract and retain great teachers, improving pathways into great careers, and likewise on to higher education. I chair the board that is running this work and we are bringing together universities, employers, LEPs, local authorities and academies in that area specifically to address the noble Lord’s concerns.

Chagos Archipelago

Private Notice Question

Asked by

To ask Her Majesty’s Government what assessment they have made of the advisory opinion from the International Court of Justice, published on 25 February, on the legal consequences of the separation of the Chagos Archipelago from Mauritius in 1965.

My Lords, I beg leave to ask a Question of which I have given private notice. I declare an interest as a member of the All-Party Parliamentary Group on Chagossians and as a former Minister responsible for that region.

My Lords, this is an advisory opinion, not a judgment ruling. The opinion refers to our administration, not occupation. Of course we will look at the detail of it carefully. The defence facilities in the British Indian Ocean Territory help to protect people in Britain and around the world from terrorist threats, organised crime and piracy. We reiterate our long-standing commitment to cede sovereignty when we no longer need the territory to help keep us and others safe.

My Lords, I am grateful to the Minister for her reply. However, as the advisory opinion of the ICJ, with only the American judge dissenting, is that the expulsion of the 1,500 Chagossians in the late 1960s, together with the separation of the archipelago from Mauritius on independence, was unlawful and wrong—and bearing in mind that there is no dispute between the key parties that Diego Garcia can remain as a US strategic base until 2036—would the Minister agree that, before the issue goes to debate at the UN General Assembly, the Government should take the lead by initiating discussions with the Mauritian Government with a view to helping to restore the rights of the Chagossians in the other 53 outer isles and thus help to restore the reputation of Britain’s human rights record?

I shall say two things to the noble Lord. First, in its statement to the court, the UK made clear Her Majesty’s Government’s sincere regret about the manner in which the Chagossians were removed from the British Indian Ocean Territory in the late 1960s and early 1970s. As the noble Lord will be aware, this is an advisory opinion, not a judgment, but we will look at the detail carefully. It is a complex opinion and needs careful analysis. The noble Lord makes a good point that there will be a desire to engage with Mauritius.

My Lords, the fact of the matter is that this is a clear wrong that should be put right. When the Minister talks about an advisory decision, she has to remember that 33 countries signed the referral to the international court, along with Mauritius. The whole of the Commonwealth is united against us on this subject. Can the Minister tell the House exactly how we will institute discussions not just with Mauritius but with Commonwealth countries which are concerned about this wrong being put right?

As the noble Lord will be aware, there was not unanimous support for the original referral. Concerns were expressed, particularly by the US, Australia and Israel, that this was setting a dangerous precedent for other bilateral disputes. The United Kingdom has a very good record on observing and implementing human rights and supporting other countries in relation to human rights. We are very clear that there is a reason for the history of this matter. It is a long-standing history, and the noble Lord’s party was involved at its inception. There is a careful determination to be made on analysis of the judgment, which the United Kingdom Government will undertake. The important thing is to consider what we are doing in relation to the Chagossians, who are currently principally located in Mauritius, the Seychelles and, interestingly, the United Kingdom, particularly in Crawley and Manchester. The noble Lord will be aware that the United Kingdom Government do a lot to support those communities.

My Lords, previously when this issue has come up, our European colleagues have supported us. Rightly, that did not happen this time. Does that augur well for global Britain?

This is an interesting and challenging situation. The United Kingdom Government are very clear that, while we do not share the view of others that this is a court judgment—we take the view that it is an advisory opinion—we will look at that opinion and analyse it carefully. We are certainly prepared to engage with Mauritius, but there are other considerations. The British Indian Ocean Territory is still needed for defence and security purposes. It is being used to combat some of the most difficult problems of the 21st century, including terrorism, international criminality, instability and piracy.

My Lords, bearing in mind the valid point made by the noble Lord, Lord Luce, that the American base on Diego Garcia could continue for many years ahead, if we are to consider America’s and our joint defence interests carefully in coming years and look at the American argument sympathetically, can we make sure that the Americans in turn, including the Washington policymakers, pay a little more attention to our interests and work with us in that area in a more constructive way than they have in the past?

I think the noble Lord’s observation will be noted. It is an important point that, in the conduct of international affairs, there has to be mutual respect and recognition, and if people cannot work together, they are very unlikely to be able to reach sensible conclusions and agreement on important issues.

Will the Minister acknowledge that considerable work has recently been done to demonstrate that the resettlement of the islanders is economically, diplomatically and environmentally feasible so that the UK can now bring its policy in line with justice and thereby get more credit in the outside world?

The noble Baroness may be aware that in 2014 there was an independent detailed review and public consultation. That was carried out by KPMG. Resettlement was decided against on the grounds of feasibility, security, defence and cost. It looked carefully at the practicalities and ruled out resettlement due to the difficulty of establishing modern public services, with limited healthcare and education and the lack of economic opportunities and jobs.

My Lords, the Minister has said that his country has a good human rights record. It is not part of a good human rights record to forcibly expel islanders—innocent people—to make way for an American base, or to encourage them by shooting the dogs with which they used to go fishing. That is not a good human rights record. Should we not now accept the international court’s judgment gracefully and apologise to the islanders?

As I have already indicated, the Government will look at the detail of the advisory opinion very carefully. It is complex, and it needs analysis. I say to the noble Lord in the context of current times, as distinct from those of more than 50 years ago, that the United Kingdom has done a great deal to engage with Chagossians. As the noble Lord may be aware, we have funded a package of support over a period of ten years, starting in 2016. That has enabled visits by Chagossians to the ocean territory. One is going on at the moment. These visits have been very well received by participants, and there are plans for more visits. The UK has been endeavouring to engage with Chagossians and do something constructive to help them remain related to their cultural origins.

My Lords, the Minister has rightly said that this saga has dragged on for decades. In addition to considering the judgment, will the Government enter into discussions with the Governments of the United States and Mauritius with a view to settling the claims of the Chagossian islanders?

I cannot comment in detail as to precisely how the Government will approach the future relationship. I have made clear what the Government propose to do at the moment. I have also made clear the positive relationship which the Government have with Chagossians and the very constructive financial support we are giving. The Government will consider the advisory opinion and then determine how best to address matters.

My Lords, when we are dealing with a matter so important from a strategic point of view, as my noble friend has indicated, trying to balance the human rights issue is of course a matter of some importance to this country. Does she agree with me that it is important that our representative at the United Nations General Assembly, when this matter is debated, puts a strong case to make it clear that this country needs to be involved in strategic planning, for the security, safety and freedom of the world?

I thank my noble friend for making a significant point—a point that I am sure has not escaped other Members in this Chamber. The ocean territory occupies a strategic position of significance. We currently have UK personnel working there. The facility is used for docking Royal Navy ships. We also operate a patrol vessel addressing marine protection and countering illegal fishing of endangered species. The base has been used as a humanitarian base for natural disasters in the region. The base is extremely important in the context of a number of significant areas.

Stalking Protection Bill

Order of Commitment Discharged

Moved by

My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.

Parking (Code of Practice) Bill

Order of Commitment Discharged

Moved by

My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.

Organ Donation (Deemed Consent) Bill

Third Reading

Motion

Moved by

My Lords, I should like briefly to express my thanks to the Prime Minister and my right honourable friend the leader of the Opposition, and indeed the leaders of many of the other parties, for their very strong support for this Bill.

Huge credit is owed to my honourable friends Geoffrey Robinson and Dan Jarvis and a cross-group of MPs who helped to see the Bill through the other place. I mention in particular the pioneering work of the late and very much missed Paul Flynn, who laid the early foundations and whose last speech in the other place was in support of the Bill.

In this House, the Minister and her predecessor, the noble Lord, Lord O’Shaughnessy, deserve great credit for their support, and I thank many noble Lords from all round the House, including my noble friend Lady Thornton, for their stalwart support in taking the Bill through. I have benefited from the valuable advice of Marina Pappa in the Bill team in the Minister’s department, the team led by John Forsythe at NHS Blood and Transplant, and Paul Millar in Geoffrey Robinson’s office.

The long and enthusiastic support of Mirror Group Newspapers has also been invaluable, as has that of charities such as Kidney Care UK and the British Heart Foundation, which work tirelessly every day to support patients and their families.

This Bill has been referred to often as Max and Keira’s Bill in honour of a recipient, 10 year-old Max Johnson, who was recognised by the Prime Minister for his immense bravery while waiting for a heart transplant, and the donor, Keira Ball, who tragically died in a road accident. I pay tribute to both of them.

I am convinced that the passing of this Bill will lead to many more organ donations and lives saved while retaining the involvement of the family in what will remain a remarkably altruistic act of giving. I beg to move.

Bill passed.

Mental Capacity (Amendment) Bill [HL]

Commons Amendments

Motion on Amendment 1

Moved by

1: Before Clause 1, insert the following new Clause—

“Meaning of deprivation of liberty

(1) After section 4 of the Mental Capacity Act 2005 insert—

“4ZA Meaning of deprivation of liberty

(1) In this Act, references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the Human Rights Convention and, accordingly, a person is not deprived of liberty in any of the circumstances described in subsections (2) to (4).

(2) A person is not deprived of liberty in a particular place if the person is free to leave that place permanently.

(3) A person is not deprived of liberty in a particular place if—

(a) the person is not subject to continuous supervision, and

(b) the person is free to leave the place temporarily (even if subject to supervision while outside that place).

(4) A person is not deprived of liberty if—

(a) the arrangements alleged to give rise to the deprivation of liberty are put in place in order to give medical treatment for a physical illness or injury, and

(b) the same (or materially the same) arrangements would be put in place for any person receiving that treatment.

(5) A person is free to leave a particular place for the purposes of subsections (2) and (3) even if the person is unable to leave that place provided that if the person expressed a wish to leave the person would be enabled to do so.”

(2) In section 64(5) of that Act (interpretation) for the words from “same” to the end substitute “meaning given by section 4ZA.””

My Lords, this Bill will ensure that vulnerable people are afforded protections should they be deprived of their liberty. It will increase access to protections for the 125,000 people who are potentially being deprived of their liberty without an authorisation in place. The Government have, in the other place, made a number of changes which we will consider today.

Amendment 1 was tabled by the Government to provide statutory clarification in relation to the meaning of a deprivation of liberty for the purposes of the Mental Capacity Act. This proposed new clause anchors the meaning of deprivation of liberty to Article 5 of the European Convention on Human Rights. My predecessor and noble friend Lord O’Shaughnessy committed to bring forward statutory clarification in order to provide clarity to people and professionals. The clause delivers this by setting out non-exhaustive bounds of the concept of deprivation of liberty—that is, circumstances which do not constitute a deprivation of liberty. This is a matter that I have discussed with a number of your Lordships.

It sets out that a person is not deprived of their liberty if they are free permanently or temporarily to leave the place they are in and would not be subject to continuous supervision if they were enabled to leave if they expressed a wish to do so. A person will also not be deprived of liberty if arrangements are put in place to give medical treatment for physical illness or injury and these are the same as would be put in place for anyone receiving this treatment.

These boundaries to the concept of deprivation of liberty are drawn mainly from existing case law decided by our highest courts. We have taken this approach because it allows case law to evolve and helps ensure the definition remains valid as it does so. It is also very difficult for any positive definition to adequately address the range of cases that may be a deprivation of liberty, particularly while retaining the ability to reflect evolving case law. This clause will be accompanied by statutory guidance, which will be scrutinised by both Houses. We are currently working with stakeholders to compile case studies to illustrate when a deprivation of liberty occurs or does not occur under this definition, so that it will be more usable by practitioners and individuals.

Amendment 1B, tabled by the noble Baroness, Lady Tyler, provides an alternative definition of deprivation of liberty. It specifies that a person is deprived of their liberty if they are confined in a space,

“for more than a negligible period of time … have not given valid consent and the arrangements are due to an action of a person or body responsible to the state”.

Concerns about this amendment have been raised with me. It speaks directly to Article 5 of the ECHR, and we all agree on the importance of Article 5 in protecting liberty. It is vital to make sure that this is done right. If Parliament defines that concept, it must be clear how our statutory definition of deprivation of liberty relates to the ECHR definition. Our amendment clearly articulates the relationship between Parliament’s definition and the ECHR’s. Getting this wrong would mean further delays for thousands of people who were previously receiving protections. It does this in new subsection (1) by stating that deprivation of liberty has the Article 5 meaning, “and, accordingly”, that there is no deprivation of liberty in the circumstances in the remaining subsections. Thus it is clearly stated that what is not a deprivation of liberty is the same under the Act as under the convention: there is no difference between the two.

Amendment 1B does not do that. The clause defines a deprivation of liberty only for the purposes of the Act itself. It does not link it to Article 5 of the convention. This would risk Parliament’s concept of deprivation of liberty diverging from the convention. It is not appropriate to have two divergent concepts of deprivation of liberty, one set by Parliament and another set by the ECHR. The difference between the two would risk creating confusion and uncertainty. It would also mean that people who fall outside Parliament’s concept of deprivation of liberty but within the Article 5 definition could not have their circumstances considered within the Mental Capacity Act and would have to take their case to the High Court, causing delays. That would not be acceptable. Too many people are already being failed by the current system because of delays. We cannot create a situation that creates further delay, confusion or uncertainty.

Amendment 1B would create a narrow concept of deprivation of liberty. Proposed new subsections (2) and (3) provide cumulative requirements for a deprivation of liberty. If any one of those requirements is absent, the situation falls outside the Act’s concept of deprivation of liberty. One of the requirements is in subsection (3)(b): that the person is,

“subject to continuous supervision and control”.

On this definition, if a person is subject to a level of supervision or control that is less than continuous, they are outside the Act.

For example, a person may be locked in to their care home, unable to leave, regularly medicated and with little liberty. However, the level of supervision might be less than continuous. For example, they may be given just an hour a day to walk unsupervised in a confined garden. Under Amendment 1B, that person may not be considered to have their liberty deprived and would fall outside the Act’s protective framework. I am sure we all recognise that such a restriction as a deprivation of liberty, but the clause would not afford that person protections. Therefore, under the Government’s more limited draft, a person would not fall under liberty protection safeguards merely because there is some period of the day when their supervision is not “continuous”. Rather, it would be only where this was coupled with the person being free to leave temporarily.

This illustrates clearly the problem with trying to provide a list of matters which, together, constitute a deprivation of liberty, or a positive definition. Noble Lords will know that the concept of deprivation of liberty is both complex and fact-sensitive, and needs to apply across varying situations. Indeed, I know that there was a lot of debate on the subject before I came to this House. If a list of requirements is used, such as with Amendment 1B and its proposed new subsections (2) and (3), the real risk is that the list does not capture what is and is not a deprivation of liberty across the widely varying situations that might arise. This then risks leading to the definition not being compatible with Article 5. That is one of the reasons why we opted against having an exhaustive definition of all deprivations of liberty in all settings. Rather, our clause seeks to put into legislation and clarify key features of the concept of deprivation of liberty while minimising the risk of incompatibility with the convention.

I am further concerned by proposed new subsection (2)(b), through which a person falls outside the scheme if they have “given valid consent”. The meaning of this seems to us unclear. This subsection could plausibly be interpreted as providing that people lacking capacity can consent to their confinement, creating a category of people who consent to their deprivation of liberty but lack capacity to make that decision. If that is what the clause intends, it should say so. If it is not, it is unclear what the clause seeks to achieve. A major concern is that the clause does not define “valid consent”, which could lead to uncertainty in implementation. It is essential that any inclusion of that would have to be very clear about what it means.

We are also concerned that the definition in Amendment 1B is narrower than the Article 5 concept of what is imputable to the state, and would mean that cases relating to people being deprived of liberty by non-state actors would fall outside of the system and, instead, fall to the courts, which of course is something that we are trying to avoid. Subsection (4) of the Government’s new clause is a reference to the Court of Appeal’s decision in the case of Ferreira, with which I am sure noble Lords will be familiar. Amendment 1B contains no equivalent subsection and I am concerned that this of itself could create difficulties. Amendment 1B purports to be an exhaustive definition of when a person is considered to be deprived of their liberty for the purposes of the Mental Capacity Act. Without an exception for the sort of situation covered by the case of Ferreira, it is unclear whether Ferreira would continue to apply. This confusion could result in more LPS applications being required where, under the existing law, or under the Government’s proposed amendment, LPSs would not apply.

This amendment, if passed, could risk us having a longer backlog and, in turn, more delay, uncertainty and confusion, as well as our not having a workable system through this legislation. It would mean that people would have to continue to access safeguards through the courts. In addition, we believe that the clause would diverge from ECHR case law on what constitutes a deprivation of liberty. I am sure that noble Lords take these issues extremely seriously; our discussions have shown that they do.

I understand that the noble Baroness and charities such as Age UK are concerned about ensuring that the meaning of deprivation of liberty is understood by families and carers, as well as by those who work in the sector. I agree that this is important but do not think that it can be done through the Bill alone; that is why we are working with the sector to produce a statutory code. I understand concerns that this single code may not go far enough to help families and carers understand the definition, and I would be happy to consider whether a further code or supporting material aimed at these groups might be beneficial. Case studies will be provided to illustrate when a deprivation of liberty occurs and when the provision of care, support and treatment does not meet that threshold.

I assure noble Lords that the government amendment is the result of many months of careful work, in which I know many noble Lords have been involved. We have worked closely with lawyers across government to ensure that this clause reflects existing case law as much as possible, and can provide clarification of the current position while preserving Article 5 rights. The government amendment is clear and precise, which is essential when putting these rights into legislation: that is, turning them into legal rights. It is not something we have done lightly; similarly, changes cannot be made lightly. I understand that the noble Baroness wishes to ensure that the definition can be communicated by people and professionals but, as I outlined a moment ago, it is not appropriate for this to be done through the Bill alone. On this basis, I respectfully ask that the noble Baroness withdraws her amendment and I hope that noble Lords will be content to accept the amendments from the House of Commons. I beg to move.

Amendment to the Motion

Moved by

Leave out from “House” to end and insert “do disagree with the Commons in their Amendment 1 and do propose Amendment 1B in lieu—

1B: Before Clause 1, insert the following new Clause—“Meaning of deprivation of liberty

(1) After section 4 of the Mental Capacity Act 2005 insert—

“4ZA Meaning of deprivation of liberty

(1) A person is deprived of liberty if the circumstances described in subsection (2) apply to them.

(2) A person is deprived of liberty if they—

(a) are subject to confinement in a particular place for more than a negligible period of time; and

(b) have not given valid consent to their confinement; and

(c) the arrangements are due to an action of a person or body responsible to the state.

(3) For the purpose of subsection (2)(a), a person is subject to confinement where they—

(a) are prevented from removing themselves permanently from the place in which they are required to reside, in order to live where and with whom they choose; and

(b) are subject to continuous supervision and control.”

(2) In section 64(5) of that Act (interpretation) for the words from “same” to the end substitute “meaning given by section 4ZA.””

My Lords, I take this opportunity to welcome the Minister to her new role. I am very much looking forward to working with her, and thank her for meeting me yesterday.

I was pleased that the Government listened to the concerns that many of us raised when this Bill was on Report, and that they agreed to introduce a statutory definition in the Bill. They subsequently brought forward a new clause in the other place, introducing what some have termed an exclusionary definition of deprivation of liberty.

I believe that there are serious problems with the government definition. My overriding concern is that as it currently stands, the government amendment defines only when a person is not being deprived of their liberty. A definition based on someone not having their liberty restricted does not, in my view, allow for a clear assessment of whether a cared-for person is currently being deprived of their liberty. The whole of the definition is couched in the negative, and splattered with double negatives, which I consider very difficult to understand.

I also have concerns over Clause 1(4) in the government definition, which I believe is unnecessary. When it is in someone’s best interest to receive emergency or routine medical care, there is already a clear consent procedure—even when that patient lacks capacity. As currently worded, it is discriminatory between physical and mental illnesses. I have taken much advice, and I am grateful to people in the sector—charities, lawyers, human rights groups, academics and others—who have offered invaluable expertise in this very complicated issue. I note that some leading academics have described the Government definition as too complicated, unclear and out of step with Article 5 of the ECHR, and therefore likely to lead to costly litigation. I accept that my last two points run contrary to what the Minister has said, but this demonstrates what a highly complex, contested and difficult-to-interpret area this is. Nothing is that clear-cut.

What is needed is a definition which is simple, easy to understand and provides practitioners, and above all, families and cared-for people, with a clear understanding of where they stand. The purpose of any definition is to provide absolute clarity to practitioners. Perhaps more importantly, it should tell cared-for people and their families when they are deprived of their liberties and thus have certain rights which they can call upon. It is, frankly, of little use if people cannot use it to make such a determination, and my conclusion at the moment is that the definition does not serve that purpose.

We need a definition which, as well as being simple and easy to understand, allows guidance and information to be developed for families and practitioners that will allow them to make a real-world determination of whether the care arrangements they are putting in place when their loved ones lack capacity amount to a deprivation of liberty.

The definition that best captured the recommendations from the Cheshire West case of the noble and learned Baroness, Lady Hale is that the person concerned is under continuous supervision and control and is not free to leave. I believe that the wording in Amendment 1B meets these vital tests. My definition of what constitutes a deprivation on liberty is based on the principles outlined in the noble and learned Baroness’s judgment in the Cheshire West case. I believe that it would allow practitioners and family members to clearly test their individual circumstances against that definition.

This is complex and I think many of us have found it difficult to get our head round it, but it is so important that the definition is compliant with Article 5 of the ECHR. The definition that I have put forward meets that test. It may not be perfect but it provides a basis for moving forwards. I beg to move.

My Lords, I commend the noble Baroness, Lady Tyler, for the amount of work that she has put into her amendment, along with others of us who have worked on it. I do not want to take a lot of time repeating what she has already said in explaining it. However, I would like to pick up on some criticisms made by the Minister and question them.

The Minister spoke critically about the concept of “valid consent” yet, as far as I have understood, consent must always have three pillars to it: the person must have capacity to make that decision; they must have accurate information on which to make a decision; and it must be made voluntarily and free of coercion. With those three pillars in place for all types of consent, I was slightly confused by the Minister’s suggestion that this could somehow apply if people did not have capacity to provide consent. The other area where I was confused when she spoke relates to the Government’s own amendment, where we have a double negative. Amendment 1 says:

“A person is not deprived of liberty in a particular place if … the person is not subject to continuous supervision”.

However, the amendment tabled by the noble Baroness, Lady Tyler, has turned the two negatives into a positive as while a person would be “subject to continuous supervision”, she has added the very important words “and control”.

A lot of people who are supervised one way or another are free to do what they want, but there is a safety barrier around them. They are not being controlled in the way that they behave; it is simply that to protect them from dangers to which they may be subject, there is a degree of supervision. That is called good care of another citizen, and we all do it all the time in relation to each other if we see someone about to get into a situation which is dangerous, whether or not they have mental capacity. The difference in this situation is that if somebody is deprived of their liberty, something is being taken away from them and controlled by another person. The amendment from the noble Baroness, Lady Tyler, has captured that difference between a duty-of-care supervision and that control.

I know that there are difficulties in defining a negligible period of time but I note the concept, in the Government’s own amendment, of whether somebody is free to leave a place permanently. How long would we determine “permanently” to be? Is it days, weeks, months or years when, again, it is a concept but is not defined specifically? With those questions, I am concerned that the Government’s criticism of the noble Baroness’s amendment does not stack up equally with the criticisms that have come from many quarters over the Government’s amendment, which is indeed quite difficult to understand, particularly because of the double negatives in it.

I draw the House’s attention to the fact that, if I am correct, the Law Commission’s original report did not include a recommendation of a definition. Perhaps what we see here is that it is incredibly difficult to come up with a definition that applies across the enormous range of circumstances that people who lack capacity may find themselves in. I am concerned that the Government’s amendment is intended, in the words of the Minister, to be able to respond to evolving case law. I suggest that that is a recognition that there will be legal challenges to the Government’s own definition, just as much as to any other, and I am unsure how that will be avoided by anything in the Bill. I will therefore strongly support the amendment in the name of the noble Baroness, Lady Tyler.

My Lords, I offer my support to my noble friend’s amendment. All of us know—with due respect to the lawyers sitting among us today—that when you have more than a few lawyers, you get more than some factorial of opinions. My noble friend’s amendment was drawn up in consultation with both the care sector and human rights lawyers—hence we have more than one view. We believe that where we are is the right view.

The Minister stated that it was not always possible to use plain English in legislation. That is patently not the case. I point the Minister to the Care Act, another piece of legislation that affects the care of vulnerable adults. It was written from top to toe in plain English.

There is a call for this amendment to be clear. We have already heard today that the double negatives used in the government amendment are not easily understood. It does not read well; it is not comfortable. It needs to be clear, in positive rather than negative language, and able to be understood by a lay person or a carer. This amendment has the backing of the care and health sector bodies, and so we support it.

My Lords, this is a very difficult area. I agree with all the noble Baronesses who have spoken, in so far as they stress the problems of trying to identify what one means by “liberty” in this area, particularly regarding mental health. A number of cases have come before the courts, both in this House when it was sitting in its appellate capacity, and in the UK Supreme Court, where I sat and grappled with this problem myself. I support the government amendment which seems much more consistent with the way the Strasbourg court has interpreted Article 5.

There is a great deal of case law that has been developed over the years as to the meaning of “liberty” in its various contexts. The point that comes out very clearly from a case called HL v the United Kingdom—it went to Strasbourg following a decision in this House in a case called R v Bournewood Community and Mental Health NHS Trust—is that account has to be taken of a whole range of factors when you look at the word “liberty” for the purposes of the article. The court says that in the end it will always come down to a question of degree and intensity, regarding whether what has been going on really is a deprivation of liberty or merely a restriction. It is trying to devise a dividing line between these factors that one is searching for in looking for a definition.

The court said it decided not to try to define the world “liberty”, because it was so difficult to find a workable definition that would apply to all circumstances. What you tend to find is the approach that the government amendment takes, of saying what does not fall within the article in a given case, and what does. It is a safer way of proceeding, rather than trying to, as the amendment in the name of the noble Baroness does, lay down in clear terms what the “deprivation of liberty” amounts to. The problem is that if one looks at the way in which that amendment is framed, in future cases the courts are going to find it very difficult to see whether Article 5 is consistent with what is in the amendment. Then there is the problem of the court having to declare an incompatibility, which then has to be sorted out by some further amendment.

The safer and most useful route is to anchor the amendment to Article 5, as subsection (1) of the government amendment does; and then, for the guidance of those who have to deal with these difficult issues, set out some clearly defined areas where they are not at risk of it being said that they are in conflict with the article. I do not find the provisions set out in the subsections that follow difficult to understand.

I thank the noble and learned Lord for allowing me to ask a question about the comments of the Joint Committee on Human Rights and its grave reservations about the formulation which the Government are putting forward.

I am not surprised; we are all grappling with a difficult area. Based on my own experience, and my reading of the Strasbourg decisions, the Government’s approach is the safer one to adopt. Before the noble Baroness stopped me, I was trying to say that there are situations where the use of a double negative is a perfectly intelligible way of proceeding, so that criticism does not seem particularly strong. I suggest that we follow the Government’s approach for the reasons I have given, especially because of the way it anchors the proposed section to Article 5 itself. We are always going to come back to the Strasbourg court and the way it interprets the article. We do not have the final word on this, I am afraid, because of the way the convention is framed, the way we have subscribed to it and the way we apply the decisions of the Strasbourg court.

My Lords, this is a challenging and complex Bill and this topic is possibly the most complex of all. Before considering the merits of the two approaches, it is worth reflecting on the fact that a huge amount of work has gone into the development of the government amendment and that in the name of the noble Baroness, Lady Tyler. I signal our gratitude to that work, and to the contribution of many people who grappled with a difficult and challenging area, as the noble and learned Lord pointed out. I am certain that all those people had the right intentions.

Speaking from the Back Benches, having shepherded the Bill on an interesting rollercoaster ride through this House while I was a Minister, there are two questions which I have to satisfy myself on. The first, and less important in a sense, is whether this fulfils the promise which I made the House that the Government would bring forward a definition. The second—much more important—one is whether the Government have provided an operable definition that will be useful in reality, which is, after all, what we want. My noble friend the Minister gave a robust exposition of the merits of the Government’s amendment. It is certainly the product of a huge amount of work, some of it when I was in the department, and offers clarity and precision. It also offers a way through on the point made by the noble Baroness, Lady Finlay. There has been a great deal of disagreement on what the right, positive definition ought to look like, so going for a negative one—I think it was described as an exclusionist definition—offers a way through.

The noble Baroness, Lady Tyler, made an important point about the complexity of language and whether this is intelligible. We need to draw a distinction between who will be using the Act and who will be using the statutory guidance that will flow from it. The Act will mainly be the subject of scrutiny by lawyers and others who are able to cope with double negatives and such things, in a way that I cannot. More importantly, these will be—and are being—distilled into case studies of how this would operate in practice. That is what will be practically useful for cared-for people, their carers and those who are supporting them. Perhaps when my noble friend responds to this debate she will say a little more about how the statutory guidance which will bring this to life will be scrutinised.

The key question is whether the definition that the Government have provided will be usable in the courts and compatible with the ECHR. I believe that it is but, more importantly for this House, the opinion of the noble and learned Lord, Lord Hope of Craighead, is that it performs that function. On that basis, I am happy to support the approach taken by the Government, not only because it satisfies the commitment I made to this House but, more importantly, because it provides an operable definition that will be useful to those who have to grapple with it every day.

My Lords, I will be brief. I too had concerns about this definition when the original legislation went through pre-legislative scrutiny—it seems an eternity ago now. It does not seem to be any easier for my noble friend to put this in the Bill. But there are some concerns. I declare my interests as a vice-president of the National Autistic Society, which has written to me, along with other similar charities, to say that it has concerns, not so much on the substance but on the clarity.

As my noble friend has just pointed out, there are two areas here. One is the clarity of the legal definition which lawyers will need, and that is important. But also, as the noble Baroness, Lady Tyler, has said—I assume this will be in the guidance and consultations that my noble friend is now undertaking—it needs to be in clear English for practitioners, relatives and people deprived of their liberty. If anybody asks in the future what Parliament’s intention was at the time—a question which I understand is sometimes asked in courts of law and to which we perhaps pay scant attention when we are legislating—I hope that on both counts, in terms of the legal definition and the guidance for others who are not lawyers, my noble friend will make sure in those documents that Parliament’s intention in defining deprivation of liberty is clear.

My Lords, this area of the definition of liberty is, and always has been, extremely difficult. The Strasbourg court has wrestled with it. It is absolutely vital from the legal point of view—I understand the distinction that has been made and I will mention that again—that this definition should be in accord with the convention; otherwise, we will have trouble maintaining this in the face of challenge. It is difficult to say that the Government’s definition is not in accordance with the convention. It seems clear that it is so. Therefore, all the decisions taken here and in Strasbourg in respect of it are available to help in the formulation of guidance.

If a different definition is taken which does not expressly subscribe to the convention, there is certainly room to try to squash definitions or applications which are in line with this definition as amended by the noble Baroness. It is perfectly open to use the legal definition in the main, in accordance with the convention, and then to help people as best we can to understand what it is all about by giving guidance, which is not authoritative in the same way as judicial decisions. There is quite a lot of scope for trying to do that with guidance which will be in accordance with what the practitioners have asked for. I should say that I am an honorary vice-president of the Carers Trust, but that does not affect what I have to say about it. I can see the need to help people in the actual work they have to do; this is a legal definition, and not all legal definitions are absolutely self-apparent to people who are not lawyers. But the guidance provided for can help in that respect, and there is a serious risk that, if we do not do something of that kind, the result will be litigation which could affect the viability of this clause in the future.

My Lords, it is a matter of great regret that we have reached this point in the Bill and are still debating the definition of deprivation of liberty. We should have been able to resolve this over the last six months, and we should not be having this discussion. We should have agreed it. The reason we have not agreed it, to put one point of criticism, is stated in the letter from the Joint Committee on Human Rights:

“It is regrettable that there was no time for adequate consultation on the proposed definition”.

I think that is exactly right.

We are where we are, and what we have is a disagreement between our very eminent lawyers—the noble and learned Lords, Lord Hope and Lord Mackay—and those of us who have been looking at and considering the Bill since July last year.

The Government have not given enough weight to the letter that the Minister received from the Joint Committee on Human Rights and the issues it raised about the definition that the Government have put in the Bill. If these issues are taken seriously, as the noble and learned Lord, Lord Mackay, has said, there will be challenges. If it is true that this definition will result in differential treatment between physical and mental conditions, that will be challenged. That is an obvious one that will be challenged, because our laws on equality between physical and mental conditions are quite clear.

We on these Benches will be supporting the noble Baroness, Lady Tyler, in her amendment. It provides a definition for practitioners and families of the cared-for person; it takes account of Clause 5; it allows for guidance and information for practitioners to make a real-world determination; it is positive; and it best captures the comments of the noble and learned Baroness, Lady Hale, in the Cheshire West case that the person concerned,

“was under continuous supervision and control and was not free to leave”.

We do not yet have a satisfactory definition in the Bill. One reason we will be supporting this amendment is that we would like the Government to have another go. We would like to see them take seriously the Joint Committee on Human Rights, for the safety of this Bill, so we will support the amendment.

My Lords, I thank all those who have contributed to this debate on the first group of amendments. As your Lordships have so thoughtfully said, we are wrestling with this definition because, as my noble and learned friend Lord McKay put it so eloquently, this is a very challenging task indeed.

In my opening speech, I explained the Government’s amendment and the reasons for our opposition to the amendment of the noble Baroness, Lady Tyler, so I will try to answer a couple of questions that have been raised. The first came from the noble Baroness, Lady Finlay, who asked why the amendment introducing the definition was tabled in the first place, given that it was such a difficult task and the Law Commission did not recommend that definition. There were calls for a definition from the JCHR, noble Lords and many stakeholders. It was an attempt to meet those calls, and we have done our best to collaborate and respond. She also raised the issue of valid consent and the three pillars. All references in the Bill to the deprivation of liberty only apply to people who lack capacity, and the amendment implies that people who lack capacity can give consent. That would not be correct in law but that is the way it could be read, so it needs to be clarified before it could be accepted.

I am very grateful to the noble and learned Lord, Lord Hope, for his comments. In his broad experience, the Government’s definition is in line with the reading of Strasbourg’s decisions so far. As he rightly understands, our intention is to anchor the definition in Article 5 and Cheshire West and to allow for evolving case law so that those who are awaiting decisions do not have to go back to court again and again. The purpose of this definition in the primary legislation is exactly as my noble friend Lord O’Shaughnessy put it: it is for the use of lawyers, whereas we are determined to bring forward robust and clear statutory guidance for stakeholders and those who will be affected by the definitions, so that they can be assured that they understand exactly the effect of this definition. On that basis, I hope that the noble Baroness, Lady Tyler, feels able to withdraw her amendment.

My Lords, I listened very carefully to the arguments put forward on this difficult and complex issue. Of course, I listened particularly carefully to the arguments of the noble and learned Lords, Lord Hope of Craighead and Lord Mackay of Clashfern. I am not a lawyer, as will become abundantly clear. I have looked to put this in a very simple way.

The issue goes back to the point made by my noble friend Lady Jolly. In my strong view, there is a need for plain English in statutes so that the citizens of this country who are subject to them understand what they say. I think it was the noble and learned Lord, Lord Mackay of Clashfern, who said that it is not always apparent to non-lawyers what some of these more complex passages mean. I agree; he is absolutely right. Perhaps it is overly simplistic of me but, frankly, I make no apology for that. It is Parliament’s role to define the legal principles in a Bill as simply as possible and the courts’ role to interpret them. I do not understand from any of the arguments I heard why the definition must be framed in such a convoluted way, in the negative with lots of double negatives. I just do not get it, despite listening carefully to the debate. I continue to believe that my definition meets those tests; it is important that whatever definition is in the Bill does so. I do not think that the Government’s definition does so. I wish to test the opinion of the House.

Motion, as amended, agreed.

Motion on Amendment 2

Moved by

2: Clause 5, page 4, line 25, leave out subsection (9)

Motion on Amendment 2 agreed.

Motion on Amendment 3

Moved by

3: Schedule 1, page 5, line 19, leave out “if a person objects to arrangements” and insert “in certain cases”

My Lords, I will speak also to Commons Amendments 5 to 14, 16 to 23, 26 to 41, 42, and 47 to 50. Throughout the legislative process the Government have worked, constructively I hope, with Peers, MPs and stakeholders across the sector, and as a result we have made a number of changes to strengthen the protections provided to the person in the new liberty protection safeguards system.

Amendments 3 and 40 to 42 specify that a pre-authorisation review must be completed by an approved mental capacity professional if the arrangements are for the cared-for person to receive their care or treatment mainly in an independent hospital, and clarify that other cases can be referred to an AMCP by the responsible body, provided that the AMCP accepts the referral. Noble Lords flagged that cases other than those where a person objects should be able to be considered by an approved mental capacity professional, and the Government agreed to clarify that in the Bill.

We also recognise that those residing in independent hospitals are often particularly vulnerable and in many cases have mental health needs and that it is appropriate in these cases for an AMCP to complete the pre-authorisation review, regardless of whether or not the person has raised an objection. The AMCP will provide an additional level of scrutiny for those who need it. They will meet the person, complete any relevant consultation and review assessments to decide whether the authorisation conditions are met.

I understand that the intention of Amendment 41A, tabled by the noble Baroness, Lady Thornton, is to require as far as practicable that an AMCP in an independent hospital case is independent from any person responsible for the act or decision regarding the arrangements. She is of course right to try to ensure independence in the system. The amendment has taken some of the wording from Section 35 of the Mental Capacity Act but this has caused some issues in the read-across.

The Government have taken the concerns about those in independent hospitals seriously. That is why we have required an AMCP to complete the pre-authorisation review in independent hospital cases, and why we have changed the Bill so that independent hospitals cannot be responsible bodies. In ensuring that the AMCP will act independently, I can confirm that they will be appointed by the local authority or local health board and that the independent hospital will be in no way involved in this decision.

We will make regulations on which professionals can fulfil this new role and specify there the qualities and qualifications necessary. The code of practice will provide guidance to responsible bodies regarding the appointment of AMCPs, and we will use this to outline that an AMCP should be independent of those carrying out the arrangements. It should also be noted that AMCPs will be held to account through their professional bodies, and they will be held to high professional standards. This sits alongside the other safeguards provided by the Bill, including advocacy, information and the ability for others to raise objections on the person’s behalf. I hope that with this reassurance the noble Baroness will not move her amendment.

Amendments 28, 35 and 39 are technical amendments which build on important amendments made by this House. The Government amended the Bill here to specify that those with a prescribed connection to a care home cannot complete the assessments needed for an authorisation or the pre-authorisation review, ensuring that there is no conflict of interest. These amendments clarify that the “prescribed connection” will be set out in regulations. It is vital that this Bill does not put care home managers in a position where they have to make a decision about whether or not a person lacks capacity or whether or not the proposed arrangements are valid because there is a conflict of interest. We are satisfied that the amendments made in this place and in the other place address this.

Amendments 8 to 23 remove the role of independent hospitals as responsible bodies, thereby removing any potential conflict of interest. When arrangements take place mainly in an independent hospital, the responsible body will be the local authority in England and the local health board in Wales. This approach broadly replicates the situation under the current DoLS. In England we want to make sure the new system is aligned with the general thrust of policy to support people in the community and reduce reliance on in-patient care, especially for autistic people and those with a learning disability. Having greater oversight by a local authority supports this.

Amendments 26, 27, 29 to 34, 36 and 37 are designed to ensure that the person who completes the assessments and determinations required for a liberty protection safeguards authorisation has the appropriate experience and knowledge to complete those assessments and determinations. The amendments give the Government the power to set out in regulations who can complete assessments and determinations. Our intention is that assessments will be completed by skilled professionals such as doctors, nurses and social workers. These amendments clarify that for medical and capacity assessments, the determination of whether or not the authorisation condition is met can be completed by someone who did not complete the assessments. This is important, as it allows valid assessments which have been completed previously to be used for the liberty protection safeguards authorisation. For example, a previous diagnosis of dementia from a psychiatrist’s mental health assessment could be used for the purposes of a medical assessment, where it is reasonable to do so. This helps to reduce unnecessary duplication in the system, which we know has proved to be a problem until now.

Amendments 45 to 50 allow objections to be raised on behalf of the person by those engaged in caring for them or with an interest in their welfare, and for a review under paragraph 35 to be triggered. The noble Baronesses, Lady Finlay and Lady Barker, flagged that it was important that there was an ability to whistleblow, and the Government amended the Bill here to clarify that objections can be raised on behalf of the person at the pre-authorisation review stage of the process. Our amendment clarifies the ability to whistleblow after the arrangements have been authorised. The amendments also clarify that where concerns have been raised and a review triggered, the case can also be referred to an approved mental capacity professional.

These amendments strengthen the protections provided by the liberty protection safeguards. I hope that noble Lords will be content to accept these changes made by the House of Commons, and I beg to move.

My Lords, I shall speak briefly to Amendment 41A, but first I congratulate the Minister on moving such an enormous group with such coherence. She deserves at least a drink of water, if not a cup of tea. I tabled this small and modest amendment for the sake of completeness. During the passage of the Bill, the noble Lord, Lord O’Shaughnessy, gave us undertakings and assured us that issues to do with independent hospitals would be addressed in the Commons. I congratulate the Government on the fact that indeed they have been. In November, the noble Lord said:

“The Government believe that independent hospitals would benefit from AMCP involvement, and therefore our intention is to bring forward an amendment, or amendments, as required, in the Commons to deal with this issue and make sure that there is such a role for the AMCP in all deprivation of liberty cases”.—[Official Report, 21/11/18; col. 279.]

In some ways the Minister has already partly addressed my concern, which is about the fact that in many independent hospitals most of the patients will be there because of the local authority or the CCG. So the clarification that I am seeking is on whether independence is truly protected when an AMCP is appointed under those circumstances. This amendment seeks to clarify that. The Minister has gone some way towards clarifying that, but I think I need to press her a little on whether that is the case. I declare an interest as a member of a CCG that commissions many of these services. When we are looking at commissioning an independent hospital, should we be the body that also takes the decision about the appointment of an AMCP?

I shall speak very briefly. I welcome very much Amendments 13 and 22 in particular in relation to independent hospitals. In Committee, a number of us raised that issue and were very concerned that independent hospitals, which are often hundreds of miles away from a person’s home, could act as the responsible body and make crucial decisions where perhaps they have a commercial interest in keeping that person on their premises.

With the permission of the current Minister, I will applaud the noble Lord, Lord O’Shaughnessy, because I feel I know that he played a key role in making sure that these amendments found their way into the Bill. The stipulation that the local authority shall be the responsible body is important. Although I understand what the noble Baroness, Lady Thornton, is saying, it seems to be a huge step forward to take the responsible body away from the independent hospital. I would like to feel that local authorities—the professionals dealing with the assessment of such cases—would have a real interest in making sure that those people returned home, if at all possible, as soon as possible. That is what all this should be about.

The other matter I will raise briefly is that of people in domestic settings, where deprivation of liberty is at stake. At our recent meeting with the Bill team we were assured that such cases would be dealt with under this new piece of legislation in the course of the normal care planning process, rather than requiring a reference to the Court of Protection. When an elderly person is caring for a demented husband or wife, the last thing they need is some bureaucratic requirement. This seemed very important, and I was delighted when the Bill team gave us an assurance that this, too, was being dealt with.

There is nothing in the Commons amendments on this, but I wonder whether the Minister could give the House an assurance that it will indeed be the case that people in domestic settings will be dealt with within the local authority planning process, and will not require a reference to the Court of Protection.

My Lords, I apologise—I should have declared my interest as chair of the National Mental Capacity Forum at the beginning of the previous debate. Like others, I thank the noble Lord, Lord O’Shaughnessy, for having made sure that the Bill is now in much better shape than it was when it came to us.

I am very grateful to the Minister for confirming that the whistleblowing amendments are there, and in fact are, if I have understood correctly, stronger than when they left this House. I have a couple of questions for her, though. One relates to the group of people who can become approved mental-capacity professionals. I was concerned that she did not include speech and language therapists in her list. People who have communication difficulties can be extremely difficult to assess. Those with a brain injury affecting the speech area can be very difficult indeed to assess because they may also have frontal-lobe disorders, as the noble Baroness herself well understands.

I know that the regulations will be brought forward, and I hope that the Minister will be able to consider additional training—not part of general undergraduate training but additional, postgraduate training for speech and language therapists to be able to develop a full set of competencies and undergo the same training as other people. I think that, without it, we will end up with duplication of assessments and duplication of costs.

My other question relates to portability. I hope that the Minister can confirm that the portability concept, which was so welcomed in the liberty protection safeguards, remains and will be applicable so that people can move between different settings without needing a reassessment. Obviously, emergency medical treatment can arise at any time with anybody, and that is covered separately for someone who lacks capacity and must be treated: that would come under a best-interest decision-taking process anyway.

My last query relates to the determination conditions and the assessment. I have a slight concern on reading the amendments that the assessments seem to be separated from the determination. If I heard the Minister correctly, she said that the care-home managers would not be making either the assessments or the determinations. We had a lot of concern over care-home managers and conflicts of role in previous debates, and I would be grateful if she would confirm that this is my correct understanding, and that we have not had a way whereby the care-home manager can undertake the assessment, and then somebody else, based on that assessment, will make a determination, because the validity of the assessment will determine the validity of the later determination.

Those are my queries in relation to this, and the determination and assessment question relates in particular to Amendments 28 to 38, to which the Minister has already spoken.

My Lords, I will make three quick points. One is to thank the Minister for the way in which she set out the ways in which the Government listened to the debates at an earlier stage in this House. We had deep misgivings about the lack of attention that we have been able to pay to independent hospitals. I am very glad that the reassurance that they will no longer be the responsible bodies has been given by the Government in another place.

Anybody who has followed our deliberations in great detail, as some people have, will know that we have had to spend an awful lot of time during the passage of this legislation focusing on care-home managers and the inappropriate responsibilities that they were given in the initial draft of the Bill. I am not entirely convinced that in relation to independent hospitals or local authorities we have entirely separated responsibility for assessment, responsibility for determination of what constitutes a care package and deprivation of liberty, and responsibility for the financing of those care packages. If the Bill had started off in a better shape, perhaps we would have been able to spend much more time on that, as we should have done. Therefore, it is important that at this stage we take on board the points made in Amendment 41A tabled by the noble Baroness, Lady Thornton, and make sure that we have not left a conflict of interest anywhere in the Bill.

My Lords, I thank the noble Baronesses, Lady Meacher, Lady Finlay and Lady Thornton, for their kind words. However, the credit for the improvements in this group, outlined by my noble friend the Minister, should go to this House. As everyone involved in the Bill will remember, we had some interesting, challenging and sometimes not quite bad tempered but difficult debates as we attempted to get this right. It is only because in the end noble Lords took a constructive approach to working together that we were able to make these changes. It is a credit to the process and to the people involved in it that we have been able to solve so many of these problems, whether they be on whistleblowing, independent hospitals or other issues.

I will reflect quickly on the intention behind the amendment regarding independence, as set out by the noble Baroness, Lady Thornton. In a sense, avoiding conflict of interest has been at the heart of the changes that everyone has wanted to see made to the Bill, and, as I understand it from what she has said, that is her intention here. My belief is that that is dealt with in this case by making the responsible body, which has responsibility for appointing the AMCP, the local authority or the health board in Wales—or, more specifically, not making it the independent hospital. That then puts it on a level playing field with care homes, which was obviously the subject of huge discussion during our debates. This is where I seek reassurance from the Minister.

If we are satisfied that the changes we have made on the care home front to make sure that the responsible body is the only person who can appoint an AMCP also make sure that there is not a conflict between the AMCP and their role in commissioning, given that local authorities often, although not always, commission social care places and in a sense have that contracting relationship between the local authority and a care home, and given that we are trying to put the independent hospital on a similar footing, and if we are also satisfied, which I think we are—or we were during the passage of the Bill and subject to the amendments that have been brought forward—that there is the appropriate independence and that there are appropriate mechanisms for avoiding conflicts of interest for care homes and the appointment of AMCPs, by deduction it ought to follow that they will be in place because of the Government’s amendments on independent hospitals, and even more so because every single independent hospital case will be referred to an AMCP.

If it is true, as I believe it to be as a consequence of the government amendments, that the commissioning relationships are essentially the same and that the responsibility to appoint an AMCP will essentially be the same for the local authority, whether it is vis-à-vis a care home place or a place in an independent hospital, I hope that it will be possible for my noble friend to reassure the noble Baroness, Lady Thornton, that what she is asking for is already the case and therefore that her amendment is not necessary. However much I applaud the intention behind it, as I said, I think that it would repeat what is already the case. With that reassurance to noble Lords, I hope that we will be able to move on on this issue.

I thank all noble Lords who have taken part in this debate, which has reflected the genuinely constructive way in which this section of the Bill has already been improved. I join the chorus of thanks to my noble friend Lord O’Shaughnessy and the Minister, Caroline Dinenage, for the extensive work that they have done on the Bill so far. I will not speak for too long, as I have already outlined the Government’s position on these amendments. However, I would like to answer a few of the questions.

The noble Baroness, Lady Meacher, asked whether liberty protection safeguards would be extended to people in domestic settings rather than them going to the Court of Protection. I am happy to confirm that liberty protection safeguards will apply to community settings, including domestic settings. I think that people and their families and carers will welcome this, as the court process is slow, costly and very intimidating for many. The Bill will achieve greater protections for people than the current deprivation of liberty system.

The noble Baroness, Lady Finlay, raised some important questions, particularly about speech and language therapists. As she points out, they will play a very important role in the new system. They will definitely be involved in consultation. The regulations that will come forward will determine their exact role in implementation, whether as AMCPs or in another specific role.

The noble Baroness also asked about portability. An authorisation can apply to different settings so that it can travel with a person but cannot be varied to apply to completely new settings once it has been made, as this would undermine Article 5. I hope that this clarifies that point.

The noble Baroness also asked whether or not care managers can determine care assessments. Care homes are explicitly prevented from completing care assessments. I think I made this point, but I re-emphasise it. This comes back to the points made by the noble Baronesses, Lady Thornton and Lady Barker. As I outlined at the outset, AMCPs are independent of the responsible body and accountable to their professional bodies. I repeat that the Government have amended the Bill here specifically to ensure that those with the proscribed connection to care homes cannot complete assessments needed for authorisation or pre-authorisation review, to ensure that there is no conflict in the process. These amendments clarify that the proscribed connection will be set out in regulations. Because there is a conflict of interest, we will ensure that care managers are not put in the position of having to decide whether or not a person lacks capacity or the proposed arrangements are valid. I hope that this reassures noble Lords and that the noble Baroness, Lady Thornton, will not press her amendment. I beg to move.

Motion on Amendment 3 agreed.

Motion on Amendment 4

Moved by

4: Schedule 1, page 7, line 6, leave out from “Wales,” to end of line 10 and insert “the person registered, or required to be registered, under Chapter 2 of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2) in respect of the provision of a care home service, in the care home;”

Amendment 4 aligns the definition of “care home manager” in Wales with that in England. As currently drafted, the Bill defines the care home manager in Wales as the registered manager. This amendment changes it so that it is instead linked to the registered service provider.

Amendment 15 is a technical amendment that will help ensure that the liberty protection safeguard system works well in Wales. There is no statutory definition of NHS continuing healthcare that applies in Wales, so this amendment clarifies that local health boards will act as responsible bodies if arrangements are mainly carried out through the provision of an equivalent to NHS continuing healthcare as defined in English legislation. I thank Welsh Government officials for working with us on these two amendments. It is vital that the new system works for Wales. We have been in close dialogue with the Welsh Government throughout this process to ensure that this is the case.

Amendments 51 to 54 relate to the interaction with the Mental Health Act. They provide that the liberty protection safeguards cannot be used to recall a person subject to the Mental Health Act, who is residing outside of a hospital, back to hospital. We have also clarified the drafting of the Bill so that arrangements can be authorised if the person is not subject to mental health requirements. This is in order to close down any possibility that the Bill is read as applying only to those with mental health requirements.

Amendments 55 and 56 amend Section 36 of the Mental Capacity Act to ensure that regulations about the functions of independent mental capacity advocates can make provision for advocates appointed under the LPS to support an appropriate person. The reason for this is that the “appropriate person” is a new role, and it is important that the regulations under Section 36 can address that. Amendments 55 and 56 also clarify that an IMCA need not be appointed under the MCA to represent and support a person in respect of accommodation in a hospital, a care home or long-stay residential accommodation if an IMCA has been appointed in respect of the same accommodation under the LPS scheme. They also make consequential amendments reflecting the change from the deprivation of liberty safeguards to the liberty protection safeguards.

Amendments 43, 44 and 46 relate to authorisations that need to vary in order to stop them ceasing because of small changes that need to be made. They require that a review must take place, where practicable or appropriate, before an authorisation is varied. These amendments also clarify that a responsible body can change during the course of an authorisation to stop authorisations automatically ceasing where there is a change of responsible body; for example, a care home resident may become eligible for NHS continuing care, and then the responsible body may change even though their location and care regime does not.

I hope that noble Lords will accept these changes made by the House of Commons. I beg to move.

Motion on Amendment 4 agreed.

Motion on Amendments 5 to 23

Moved by

5: Schedule 1, page 7, line 13, at end insert—

““Education, Health and Care plan” means a plan within the meaning of section 37(2) of the Children and Families Act 2014;”

6: Schedule 1, page 7, leave out line 16

7: Schedule 1, page 7, line 17, at end insert—

““independent hospital” has the meaning given by paragraph 5;”

8: Schedule 1, page 7, line 27, at end insert—

““NHS hospital” has the meaning given by paragraph 5;”

9: Schedule 1, page 7, line 46, leave out “Hospital” and insert “NHS hospital and independent hospital”

10: Schedule 1, page 7, leave out line 47

11: Schedule 1, page 8, line 15, after “6” insert “(1)”

12: Schedule 1, page 8, line 16, leave out “a” and insert “an NHS”

13: Schedule 1, page 8, line 17, at end insert—

“(aa) if the arrangements are carried out mainly in an independent hospital in England, the responsible local authority determined in accordance with paragraph 8A;

(ab) if the arrangements are carried out mainly in an independent hospital in Wales, the Local Health Board for the area in which the hospital is situated;”

14: Schedule 1, page 8, line 18, leave out “paragraph (a) does not apply” and insert “none of the paragraphs (a) to (ab) applies”

15: Schedule 1, page 8, line 19, leave out from “mainly” to “that” in line 21 and insert “through—

(i) the provision of NHS continuing healthcare under arrangements made by a clinical commissioning group,

or

(ii) in Wales, the provision of an equivalent to NHS continuing healthcare under arrangements made by a Local Health Board,”

16: Schedule 1, page 8, line 23, leave out “neither paragraph (a) nor paragraph (b)” and insert “none of paragraphs (a) to (b)”

17: Schedule 1, page 8, line 24, leave out “(see paragraph 9)” and insert “determined in accordance with paragraph 9”

18: Schedule 1, page 8, line 24, at end insert—

“(2) If an independent hospital is situated in the areas of two or more Local Health Boards, it is to be regarded for the purposes of sub-paragraph (1)(ab) as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.”

19: Schedule 1, page 8, line 25, after “manager”” insert “, in relation to an NHS hospital,”

20: Schedule 1, page 8, line 41, at end insert—

“(ca) if the hospital is vested in a Local Health Board, that Board.”

21: Schedule 1, page 8, line 42, leave out from beginning to end of line 10 on page 9

22: Schedule 1, page 9, line 18, at end insert—

“8A (1) In paragraph 6(1)(aa), “responsible local authority”, in relation to a cared-for person aged 18 or over, means—

(a) if there is an Education, Health and Care plan for the cared-for person, the local authority responsible for maintaining that plan;

(b) if paragraph (a) does not apply and the cared-for person has needs for care and support which are being met under Part 1 of the Care Act 2014, the local authority meeting those needs;

(c) in any other case, the local authority determined in accordance with sub-paragraph (4).

(2) If more than one local authority is meeting the needs of a cared-for person for care and support under Part 1 of the Care Act 2014 the responsible local authority is the local authority for the area in which the cared-for person is ordinarily resident for the purposes of that Part of that Act.

(3) In paragraph 6(1)(aa), “responsible local authority”, in relation to a cared-for person aged 16 or 17, means—

(a) if there is an Education, Health and Care plan for the cared-for person, the local authority responsible for maintaining that plan;

(b) if paragraph (a) does not apply and the cared-for person is being provided with accommodation under section 20 of the Children Act 1989, the local authority providing that accommodation;

(c) if neither paragraph (a) nor paragraph (b) applies and the cared- for person is subject to a care order under section 31 of the Children Act 1989 or an interim care order under section 38 of that Act, and a local authority in England is responsible under the order for the care of the cared-for person, that local authority;

(d) if none of paragraphs (a) to (c) applies, the local authority determined in accordance with sub-paragraph (4).

(4) In the cases mentioned in sub-paragraphs (1)(c) and (3)(d), the “responsible local authority” is the local authority for the area in which the independent hospital mentioned in paragraph 6(1)(aa) is situated.

(5) If an independent hospital is situated in the areas of two or more local authorities, it is to be regarded for the purposes of sub-paragraph (4) as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.”

23: Schedule 1, page 10, leave out lines 43 to 45

Motion on Amendments 5 to 23 agreed.

Motion on Amendment 24

Moved by

24: Schedule 1, page 11, line 18, at end insert—

“12A(1) The following must publish information about authorisation of arrangements under this Schedule—

(a) the hospital manager of each NHS hospital; (b) each clinical commissioning group;

(c) each Local Health Board;

(d) each local authority.

(2) The information must include information on the following matters in particular—

(a) the effect of an authorisation;

(b) the process for authorising arrangements, including making or carrying out—

(i) assessments and determinations required under paragraphs 18 and 19;

(ii) consultation under paragraph 20;

(iii) a pre-authorisation review (see paragraphs 21 to 23);

(c) the circumstances in which an independent mental capacity advocate should be appointed under paragraph 39 or 40;

(d) the role of a person within paragraph 39(5) (an “appropriate person”) in relation to a cared-for person and the effect of there being an appropriate person;

(e) the circumstances in which a pre-authorisation review is to be carried out by an Approved Mental Capacity Professional under paragraph 21;

(f) the right to make an application to the court to exercise its jurisdiction under section 21ZA;

(g) reviews under paragraph 35, including— (i) when a review will be carried out; (ii) the rights to request a review;

(iii) the circumstances in which a referral may or will be made to an Approved Mental Capacity Professional.

(3) The information must be accessible to, and appropriate to the needs of, cared-for persons and appropriate persons.

12B (1) Where arrangements are proposed, the responsible body must as soon as practicable take such steps as are practicable to ensure that—

(a) the cared-for person, and

(b) any appropriate person in relation to the cared-for person, understands the matters mentioned in sub-paragraph (3).

(2) If, subsequently, at any time while the arrangements are being proposed the responsible body becomes satisfied under paragraph 39(5) that a person is an appropriate person in relation to the cared-for person, the responsible body must, as soon as practicable, take such steps as are practicable to ensure that the appropriate person understands the matters mentioned in sub-paragraph (3).

(3) Those matters are—

(a) the nature of the arrangements, and

(b) the matters mentioned in paragraph 12A(2) as they apply in relation to the cared-for person’s case.

(4) If it is not appropriate to take steps to ensure that the cared-for person or any appropriate person understands a particular matter then, to that extent, the duties in sub-paragraphs (1) and (2) do not apply.

(5) In this paragraph “appropriate person”, in relation to a cared-for person, means a person within paragraph 39(5).”

My Lords, It is vital that those who are deprived of their liberty are provided with the information necessary for them to be able to exercise their rights. Although there is a duty to provide information in Article 5 of the European Convention on Human Rights, noble Lords have rightly flagged that the Bill should be explicit about this duty, and amended the Bill to this effect.

The Government listened to noble Lords and agreed that the Bill should be explicit on this matter. However, the amendment tabled in this place was not clear about when information should be provided; we felt that this drafting could cause some confusion for practitioners, so we tabled alternative amendments. Amendment 24 clarifies that, as soon as practicable after arrangements are proposed, the responsible body must take such steps as are practicable to ensure that the person understands the key steps and safeguards in the authorisation process. This is particularly important to ensure that people are aware of their options to challenge the authorisation. Importantly, there is also a duty to provide the same information to any appropriate person who is providing representation and support to the person. This is important in ensuring that family members and those close to the person are also provided with the necessary information to enable them to effectively provide representation and support to the person.

The duty on the responsible body is to take steps as soon as practicable to provide the person with the information. This means that this should be done as soon as possible after the responsible body is aware that arrangements are proposed. The responsible body will need to identify an appropriate person or appoint an IMCA at the earliest possible stage to provide support and representation for the person; the same principle applies for the duty to provide information. Information should be provided in the early stages of the process so that the person can make an informed decision regarding the support they receive through the process, and is able to exercise their rights. The code will provide details about how this will work in practice. We have already established a working group on the code of practice, which includes stakeholders from across the sector, ensuring that information is provided at the earliest possible point to form a part of these discussions.

Amendment 24 also introduces a general duty to publish information about the authorisation, including: the process; the circumstances in which an IMCA should be appointed; the role of the appropriate person; and the right to challenge an authorisation in court. This ensures that anyone who has an interest in the welfare of the person is subject to liberty protection safeguards authorisation, has access to the important information about a person’s rights, and is able to raise objections on behalf of the person.

Amendment 25 requires that the responsible body remind the cared-for person and any appropriate person of this information after the authorisation is granted. The information that needs to be provided to the person, and to any appropriate persons, includes details of the authorisation process, access to representation and support from an appropriate person or an IMCA, the right to request a review, and circumstances in which an AMCP will consider a case, which includes objections and the right to challenge authorisations in court.

On the matter of challenging authorisations in court, the responsible body under Article 5 of the European Convention on Human Rights has a duty to ensure that relevant cases are referred to the Court of Protection. I know that there has been a particular concern about ensuring that in very rare cases where it is not in the person’s best interests to receive support and representation, those people are enabled to challenge in the Court of Protection if they want to. In these cases, the responsible body will need to ensure that the cases are referred to the court. If it fails in this duty, it can be challenged in court.

I understand that Amendment 25A, tabled by the noble Baroness, Lady Watkins, seeks to require responsible bodies to keep a record of the decision and justification for not immediately giving a copy of the authorisation record, and if an authorisation record is not given within 72 hours, there must be a review into whether the lack of information is appropriate. I understand her desire to ensure that information about an authorisation record is provided promptly. However, we think that the drafting of the amendment would cause some issues; for example, it is not clear who is responsible for the duty to record or carry out a review. I am certainly willing to reflect on how best we can ensure that information is shared promptly, but I hope that I can reassure the noble Baroness that we will generally expect the information to be provided earlier than this, and we will set out reasonable timescales for the responsible body in the statutory code of practice. I hope that, with this reassurance, she will decide not to press her amendment.

The House has made clear its view that the Bill should be explicit about the duty to provide information. The Government have listened: these amendments outline clearly the duty to provide information at the earliest possible stage; to require, as far as possible, that the person understands the information they are being given; and to take action on it if necessary. I hope that noble Lords will accept these changes made by the House of Commons, and on that basis, I beg to move.

Is my noble friend able to define what the Government describe as “as soon as practicable”, which she said was going into the code of practice? Linked to that, how will it be defined for those people who will need the support of speech and language therapists, of an approved mental capacity professional or of an IMCA? It seems that we will need information to be provided at a very early stage, so that it can be considered and then decided whether there is a need for additional support. Can she give us some indication of how she is going to deal with that in the code of practice?

My Lords, I welcome the Minister to her new role, and look forward very much to working with her. I also acknowledge that the Government have gone a very long way in responding to previous amendments in the name of Lady Hollis and myself with regard to the supply of information to the cared-for person and other relevant bodies.

I turn briefly to my Amendment 25A. While I fully appreciate that it is not always practicable for the responsible body to ensure that a copy of the authorisation record is given to the cared-for person and other bodies immediately after authorisation, as outlined, Commons Amendment 25 is not at all specific about the time limits. I believe this means that busy clinical staff may not always feel it necessary to chase up this issue and make time swiftly to explain issues to the cared-for person or the appropriate person. This needs to be done quickly enough in terms of ongoing deprivation of liberty safeguard orders for appeals or challenges to the authorisation to be made, if individuals so require.

Amendment 25A in my name is therefore designed to ensure that records are kept at the commencement of the deprivation of liberty safeguarding order, outlining the reasons why information cannot be given at that time. These records may be brief but should be clear. For example, they could be as brief as saying that the cared-for person is confused and upset, and that to discuss deprivation of liberty safeguarding at this time is not considered to be in the best interests of the person concerned. As a mental health nurse of 40 years’ standing, I can certainly see such situations arising. I am not contending that everything should be done immediately.

The second part of my amendment is designed to ensure that a time limit is applied to reviewing why the authorisation record has not been given to those specified in sub-paragraph (1) within 72 hours, if this has not occurred, and a review of whether the lack of sharing the information was appropriate at the time of the initial deprivation. I am concerned that while “practicable” is understood in law, in very busy situations things can be kicked down the road. My amendment is designed to ensure that even in busy and sometimes very difficult clinical circumstances, the cared-for person’s right to information regarding authorisation arrangements is reviewed shortly after commencement. I suggest that a time limit for review—not necessarily 72 hours—is consistent with human rights legislation and would be good practice.

If the Government are not able to consider putting some kind of time limit within the main body of the Bill then, having pointed out that I am certainly not wedded to 72 hours, I feel that I will need to seek the opinion of the House. The backlog in the current system indicates what could happen under the Bill if we do not have some kind of clear time limit for information.

My Lords, I shall speak briefly and I apologise to the House: I should have declared my interest at the beginning of this stage as a chair of an organisation caring for over 2,000 adults with learning disability or autism, or both. In Committee the noble Baroness, Lady Hollins, tabled an amendment on the provision of information for cared-for people, carers, family members and IMCAs. She is not in her place today but the noble Baroness, Lady Watkins of Tavistock, has produced a really elegant amendment and I shall support it.

On Report, I also explained why it is not sufficient to have this commitment in the code of practice. I shall not repeat that argument in detail now but it drew upon a Supreme Court ruling of earlier this year. The MCA code of practice not only misstated the legal situation but could not establish a duty where none had existed. If there is a need for a hard-edged duty or right, that needs to be put into legislation and not the code. We must have provisions in the Bill to provide the person with information about their situation and rights, along with clear statutory entitlements to copies of the relevant documentation for those supporting and representing them.

My Lords, the rights to information are another good example of the positive change that this House made in the passage of the Bill. I pay tribute to the noble Baroness, Lady Watkins, and Baroness Hollis, for making that argument so persuasively. I am very grateful to my noble friend the Minister and my right honourable friend the Minister of State, Caroline Dinenage, for responding.

I completely understand the desire to create—if I can borrow a bit of terminology—a backstop for why these sorts of cases ought to be considered. It is very easy to see how in practice when perhaps a small institution is caring for people with complex needs, the definition of “practicable” could stretch over time because of urgent or important responsibilities. There is a risk that, without some kind of backstop or time limit, this is too vague. However, I have a big problem with having an arbitrary time limit. I know that the noble Baroness is not attached to any particular time, but any time is by definition arbitrary.

My concern is that if this is in primary legislation it could lead to rushed or poor record keeping if it is not, for example, possible to conclude the review, assemble all the relevant pieces of information and provide that in a readable form—bearing in mind that is not going to be just straight English language for everybody—to the appropriate person, the IMCA, and so on. We should particularly bear in mind that an appropriate person could be somebody appointed by the cared-for person who resides in another country. So there are complexities at the edge of these kinds of cases that mean that if an arbitrary limit—which any limit would be—is set out in primary legislation, it could mean that as institutions bump up against it, they just rush to get the job done rather than making sure that they take care to do the highest-quality piece of work. That is my fear, although maybe other noble Lords do not share it.

I take the point that the noble Baroness, Lady Jolly, made about whether or not—in her view, not—the guidance is the place to do it. It seems to me that it is the right place to do it, because we had not defined “practicable” and “appropriate” before. We can now derive some examples of what that would and ought to look like in normal cases, but also in edge cases. I have listened very carefully to the argument—as noble Lords know, my attitude throughout has been to listen and make sure that we can improve this Bill. However, I have concerns about putting an arbitrary limit in, for the reasons that I have set out. I hope my noble friend, as she has been asked to do by my noble friend Lady Browning, will be able to explain things to us in a bit more detail—and give us a flavour of how the statutory guidance would provide that kind of detail—to provide reassurance to noble Lords that this is not just a boundless commitment that does not have some teeth.

My Lords, the amendment on this very important matter in the name of the noble Baroness, Lady Watkins, is fully supported on these Benches. The Minister knows the strength of feeling of support in the House to ensure that the cared-for person, or their carer, relative, friend or other person advocating on their behalf, is fully informed about their rights at the start of the LPS authorisation process. The amendment, carried by a substantial majority, was very clear on this issue. That information should be provided up front to families as a matter of course—information not only about the process, but importantly, their rights to advocacy and to challenge—in an accessible format that they can understand.

The provision in Amendment 25 of a statutory duty for information to be provided “as soon as practicable” does not ensure that this essential up-front requirement for information is met. One of the excellent briefings on this matter from Mencap states:

“Families’ carers have consistently fed back to us that the lack of information up-front meant that they didn’t know what was happening, that it was a process done to them and their loved one, and that set in motion misunderstandings, mistrust and instances of an appeal which could have been avoided had information been provided and explained at the beginning”.

Mencap’s concern is that the “as soon as practicable” provision could mean a system working on the timescales of the responsible body, rather than of the individual body and the families. That is our concern, too.

Amendment 25A addresses these concerns and ensures that the loophole in the Government’s amendment is addressed by requiring a record of the decision and justification to be kept where it has not been practicable to provide that up-front information about the decision to commence authorising arrangements under subsection (1). It also provides a necessary timeframe. We have heard that the noble Baroness, Lady Watkins, is not wedded to 72 hours, but it is important to have a timeframe within which, if a copy of the authorisation record has not been provided, there must be a review of whether the lack of information provision was appropriate. The requirement would provide the necessary safeguard for the cared-for person, and the hard- pressed staff, by facilitating routine record keeping and accountability for the decisions made. The noble Baroness pointed out some very explicit examples of the type of record that needs to be kept; it would not be onerous.

We are in a strange position, which we are slowly getting used to, of having the ex-Minister reassuring the House from the Government Benches that everything he promised has been delivered—before the Minister speaks. Amendment 25A highlights a significant loophole that needs to be addressed and I hope that the Government will accept it. We accept that the Government’s intention is to provide the information needed, and as soon as possible, but the amendment is necessary to reassure that “as soon as practicable” is not as open-ended as it can so often turn out to be.

My Lords, I thank noble Lords for their contributions to the debate on this group. The provision of information in an appropriate and timely way goes to the heart of the Bill, in its intent to empower the cared-for person. The contributors today demonstrated how significant they have been in the process of improving the Bill.

I will respond first to my noble friend Lady Browning, and her question about clarifying what “as soon as practicable” means. This term is also used in the DoLS legislation. As we have outlined, we intend to clarify this in the code of practice with a range of examples that will make it perfectly clear exactly what it means, for practitioners and the cared-for person. We expect that this will be in the earliest stages of the process, so that the person has the information to enable them to exercise their rights, as the noble Baroness, Lady Wheeler, said,

“as a matter of course”.

This is exactly what would be expected. In order to ensure that this code of practice is workable and effective and, as my noble friend Lord O’Shaughnessy rightly put it, “has teeth”, it is being developed with strong input from stakeholders and practitioners. That is why we are confident that it will not be just a document but a usable and effective piece of statutory guidance.

We are not able to accept the amendment in the name of the noble Baroness for the reasons which she accepted, in some way, in her contribution. We have concerns about the specification of 72 hours and other aspects, but I understand her desire to ensure that information about the authorisation record is provided promptly. This is our intention as well. We have heard the will of both Houses on this and have tried to reflect that in our amendments, and I am certainly willing to consider how best to do that. We think that it is best done in the code of practice, which will be statutory and will have teeth, for the reasons that I outlined. I hope that, with these reassurances, the noble Baroness will feel bound to press her amendment. I beg to move.

Motion on Amendment 24 agreed.

Motion on Amendment 25

Moved by

25: Schedule 1, page 11, line 19, leave out from beginning to end of line 7 on page 12 and insert— “13 (1) As soon as practicable after authorising arrangements, the responsible body must ensure that a copy of the authorisation record is given to—

(a) the cared-for person,

(b) any independent mental capacity advocate appointed under paragraph 39 to represent and support the cared-for person,

(c) any person within paragraph 39(5) in respect of the cared-for person (the “appropriate person”), and

(d) any independent mental capacity advocate appointed under paragraph 40 to support the appropriate person.

(2) As soon as practicable after authorising arrangements, the responsible body must take such steps as are practicable and appropriate, having regard to the steps taken under paragraph 12B and the length of time since they were taken, to ensure that the cared-for person and any appropriate person understands the matters mentioned in paragraph 12A(2)(a), (c), (d), (f), and (g) as they apply in relation to the cared-for person’s case.”

Amendment 25A (as an amendment to Commons Amendment 25)

Moved by

25A: Line 10, at end insert—

“(1A) A record of any decision and justification for not immediately giving a copy of the authorisation record under sub-paragraph (1) must be kept.

(1B) If a copy of the authorisation record has not been given to those specified in sub-paragraph (1) within 72 hours, there must be a review of whether the lack of information was appropriate.”

Motion on Amendment 25, as amended, agreed.

Motion on Amendments 26 to 40

Moved by

26: Schedule 1, page 13, line 48, at end insert—

“(1A) The person who makes the determination need not be the same as the person who carries out the assessment.”

27: Schedule 1, page 14, leave out lines 1 and 2 and insert—

“(2) The appropriate authority may by regulations make provision for requirements which must be met by a person—

(a) making a determination, or

(b) carrying out an assessment, under this paragraph.

(2A) Regulations under sub-paragraph (2) may make different provision— (a) for determinations and assessments, and

(b) for determinations and assessments required under sub- paragraph (1)(a) and determinations and assessments required under sub-paragraph (1)(b).”

28: Schedule 1, page 14, line 6, leave out “prescribed connection “and insert “connection, of a kind prescribed by regulations,”

29: Schedule 1, page 14, line 14, after “the” insert “determination or”

30: Schedule 1, page 14, line 16, after “the” insert “determination or”

31: Schedule 1, page 14, line 18, leave out “The” and insert “An”

32: Schedule 1, page 14, line 34, leave out “made on an assessment” and insert “by a person, who meets requirements prescribed by regulations made by the appropriate authority, made on an assessment by that person”

33: Schedule 1, page 14, leave out lines 40 to 46

34: Schedule 1, page 15, line 2, leave out from “16,” to “by” in line 3 on page 15 and insert “a determination may not be made”

35: Schedule 1, page 15, line 4, leave out “prescribed connection” and insert “connection, of a kind prescribed by regulations,”

36: Schedule 1, page 15, line 9, leave out “assessment” and insert “determination”

37: Schedule 1, page 15, line 11, leave out “assessment” and insert “determination”

38: Schedule 1, page 15, line 15, leave out from second “arrangements” to end of line 16 and insert

“and—

(i) authorisation is being determined under paragraph 16, or

(ii) renewal is being determined under paragraph 32, (a) by”

39: Schedule 1, page 16, line 1, leave out “prescribed connection” and insert “connection, of a kind prescribed by regulations,”

40: Schedule 1, page 16, line 8, leave out “or”

Motion on Amendments 26 to 40 agreed.

Motion on Amendment 41

Moved by

41: Schedule 1, page 16, line 12, at end insert—

“(c) the arrangements provide for the cared-for person to receive care or treatment mainly in an independent hospital, or

(d) the case is referred by the responsible body to an Approved Mental Capacity Professional and that person accepts the referral.”

Amendment 41A (as an amendment to Commons Amendment 41)

Tabled by

41A: Line 6, at end insert—

“(2A) In making arrangements under sub-paragraph (2)(c), the appropriate authority must have regard to the principle that a person to whom a proposed act or decision relates should, so far as practicable, be represented and supported by a person who is independent of any person who will be responsible for the act or decision.”

Amendment 41A (to Amendment 41) not moved.

Motion on Amendment 41 agreed.

Motion on Amendments 42 to 56

Moved by

42: Schedule 1, page 16, line 31, leave out “(whether or not paragraph 21(2) applies)”

43: Schedule 1, page 17, line 5, after “being” insert “, and the responsible body for the time being,”

44: Schedule 1, page 19 leave out line 43 and insert—

“(a) on a variation under paragraph 34;”

45: Schedule 1, page 20, line 5, after “(4)” insert “or (5A)”

46: Schedule 1, page 20, line 8, at end insert—

“(3A) A review under sub-paragraph (3)(a) must be carried out before the authorisation is varied or, if that is not practicable or appropriate, as soon as practicable afterwards.”

47: Schedule 1, page 20, line 16, leave out from “paragraph” to end of line 17 and insert “21—

(i) was not by an Approved Mental Capacity Professional, or

(ii) was by an Approved Mental Capacity Professional solely because paragraph 21(2)(c) or (d) applied.”

48: Schedule 1, page 20, line 24, at end insert—

“(5A) This sub-paragraph applies where sub-paragraph (4) does not apply and—

(a) the arrangements provide for the cared-for person to reside in, or to receive care or treatment at, a specified place,

(b) a relevant person informs the reviewer or (if the reviewer is not the responsible body) the responsible body that they believe that the cared-for person does not wish to reside in, or to receive care or treatment at, that place, and

(c) the relevant person makes a reasonable request to the person informed under paragraph (b) for a review to be carried out.

(5B) In sub-paragraph (5A) “relevant person” means a person engaged in caring for the cared-for person or a person interested in the cared-for person’s welfare.”

49: Schedule 1, page 20, line 30, at end insert—

“(7A) On any review where sub-paragraph (5A) applies, the reviewer or (if the reviewer is not the responsible body) the responsible body may refer the authorisation to an Approved Mental Capacity Professional and, if the Approved Mental Capacity Professional accepts the referral, the Approved Mental Capacity Professional must determine whether the authorisation conditions are met.”

50: Schedule 1, p 20, line 31, after “determination” insert “mentioned in sub-paragraph (7) or (7A)”

51: Schedule 1, page 24, line 3, at end insert “in a hospital”

52: Schedule 1, page 24, line 10, at end insert “in a hospital”

53: Schedule 1, p 27, line 16, at end insert—

“(g) anything which has the same effect as something within any of paragraphs (a) to (f), under another England and Wales enactment.”

54: Schedule 1, p 27, line 16, at end insert—

“(1A) And, for the purposes of this Schedule, arrangements which relate to a person are “not in accordance with mental health requirements” if the person is subject to mental health requirements and the arrangements are not in accordance with them.”

55: Schedule 2, page 28, line 22, at end insert—

“3A (1) Section 36 (functions of independent mental capacity advocates) is amended as follows.

(2) In subsection (2)(a) leave out “(“P”) so that P” and insert “or support so that that person”.

(3) In subsection (2)(c) leave out “P’s wishes and feelings” and insert “the wishes and feelings of the person the advocate has been instructed to represent (“P”)”.

(4) After subsection (2)(d) insert—

“(da) in the case of an advocate instructed to support an appropriate person where paragraph 40 of Schedule AA1 applies, supporting that person to ascertain—

(i) what the wishes and feelings of the cared-for person who that appropriate person represents and supports would be likely to be and the beliefs and values that would be likely to influence the cared-for person;

(ii) what alternative courses of action are available in relation to the cared-for person who that appropriate person represents and supports;”.

3B (1) Section 38 (provision of accommodation by NHS body) is amended as follows.

(2) For subsection (2A) substitute—

“(2A) And this section does not apply if—

(a) an independent mental capacity advocate is appointed under paragraph 39 of Schedule AA1 to represent and support P, and

(b) the arrangements which are authorised or proposed under Schedule AA1 in respect of P include arrangements for P to be accommodated in the hospital or care home referred to in this section.”

(3) In subsection (3), in the opening words, after “arrangements” insert “mentioned in subsection (1)”.

(4) Omit subsection (10).

3C (1) Section 39 (provision of accommodation by local authority) is amended as follows.

(2) For subsection (3A) substitute—

“(3A) And this section does not apply if—

(a) an independent mental capacity advocate is appointed under paragraph 39 of Schedule AA1 to represent and support P, and

(b) the arrangements which are authorised or proposed under Schedule AA1 in respect of P include arrangements for P to be accommodated in the residential accommodation referred to in this section.”

(3) In subsection (4), in the opening words, after “arrangements” insert “mentioned in subsection (1)”.

(4) Omit subsection (7).” Schedule 2, page 28, line 22, at end insert—

“3A (1) Section 36 (functions of independent mental capacity advocates) is amended as follows.

(2) In subsection (2)(a) leave out “(“P”) so that P” and insert “or support so that that person”.

(3) In subsection (2)(c) leave out “P’s wishes and feelings” and insert “the wishes and feelings of the person the advocate has been instructed to represent (“P”)”.

(4) After subsection (2)(d) insert—

“(da) in the case of an advocate instructed to support an appropriate person where paragraph 40 of Schedule AA1 applies, supporting that person to ascertain—

(i) what the wishes and feelings of the cared-for person who that appropriate person represents and supports would be likely to be and the beliefs and values that would be likely to influence the cared-for person;

(ii) what alternative courses of action are available in relation to the cared-for person who that appropriate person represents and supports;”.

3B (1) Section 38 (provision of accommodation by NHS body) is amended as follows.

(2) For subsection (2A) substitute—

“(2A) And this section does not apply if—

(a) an independent mental capacity advocate is appointed under paragraph 39 of Schedule AA1 to represent and support P, and

(b) the arrangements which are authorised or proposed under Schedule AA1 in respect of P include arrangements for P to be accommodated in the hospital or care home referred to in this section.”

(3) In subsection (3), in the opening words, after “arrangements” insert “mentioned in subsection (1)”.

(4) Omit subsection (10).

3C (1) Section 39 (provision of accommodation by local authority) is amended as follows.

(2) For subsection (3A) substitute—

“(3A) And this section does not apply if—

(a) an independent mental capacity advocate is appointed under paragraph 39 of Schedule AA1 to represent and support P, and

(b) the arrangements which are authorised or proposed under Schedule AA1 in respect of P include arrangements for P to be accommodated in the residential accommodation referred to in this section.”

(3) In subsection (4), in the opening words, after “arrangements” insert “mentioned in subsection (1)”.

(4) Omit subsection (7).”

56: Schedule 2, page 28, line 23, at end insert—

“4A In section 40 (exceptions)—

(a) in subsection (1), for “, 39(4) or (5), 39A(3), 39C(3) or 39D(2)” substitute “or 39(4) or (5)”;

(b) omit subsection (2).”

Motion on Amendments 42 to 56 agreed.

Leaving the European Union

Statement

My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:

“With permission, Mr Speaker, I would like to make a statement on the Government’s work to secure a withdrawal agreement that can command the support of this House. A fortnight ago, I committed to come back before the House today if the Government had not by now secured a majority for a withdrawal agreement and a political declaration.

In the two weeks since, the Secretary of State for Exiting the European Union, the Attorney-General and I have been engaging in focused discussions with the EU to find a way forward that will work for both sides. We are making good progress in that work. I had a constructive meeting with President Juncker in Brussels last week, to take stock of the work done by our respective teams. We discussed the legal changes that are required to guarantee that the Northern Ireland backstop cannot endure indefinitely. On the political declaration, we discussed what additions or changes can be made to increase confidence in the focus and ambition of both sides in delivering the future partnership we envisage as soon as possible, and the Secretary of State is following this up with Michel Barnier. I also had a number of positive meetings at the EU-Arab League summit in Sharm el-Sheikh, including with President Donald Tusk. I have now spoken to the leaders of every single EU member state to explain the UK’s position. The UK and EU teams are continuing their work and we agreed to review progress again in the coming days.

As part of these discussions, the UK and EU have agreed to consider a joint workstream to develop alternative arrangements to ensure the absence of a hard border in Northern Ireland. This work will be done in parallel with the future relationship negotiations, and is without prejudice to them. Our aim is to ensure that, even if the full future relationship is not in place by the end of the implementation period, the backstop is not needed because we have a set of alternative arrangements ready to go.

I want to thank my honourable and right honourable friends for their contribution to this work, and reaffirm that we are seized of the need to progress this work as quickly as possible. President Juncker has already agreed that the EU will give priority to this work, and the Government expect that this will be an important strand of the next phase. The Secretary of State for Exiting the EU will be having further discussions with Michel Barnier, and we will announce details ahead of the meaningful vote. We will also be setting up domestic structures to support this work, including ensuring we can take advice from external experts involved in customs processes around the world, from businesses who trade with the EU and beyond, and, of course, from colleagues across the House. This will all be supported by civil service resource, as well as funding for the Government to help develop, test and pilot proposals which can form part of these alternative arrangements.

I know what this House needs in order to support a withdrawal agreement. The EU knows what is needed, and I am working hard to deliver it. As well as changes to the backstop, we are also working across a number of other areas to build support for the withdrawal agreement, and to give the House confidence in the future relationship that the UK and EU will go on to negotiate. This includes ensuring that leaving the EU will not lead to any lowering of standards in relation to workers’ rights, environmental protections or health and safety. Taking back control cannot mean giving up our control of these standards, especially when UK Governments of all parties have proudly pursued policies that exceed the minimums set by the EU—from Labour giving British workers more annual leave, to the Conservatives and Liberal Democrats giving all employees the right to request flexible working. Not only would giving up control go against the spirit of the referendum result; it would also mean accepting new EU laws automatically, even if they were to reduce workers’ rights or change them in a way that was not right for us.

Instead, and in the interests of building support across the House, we are prepared to commit to giving Parliament a vote on whether it wishes to follow suit whenever the EU standards in areas such as workers’ rights and health and safety are judged to have been strengthened. The Government will consult with businesses and trade unions as we look at new EU legislation and decide how the UK should respond. We will legislate to give our commitments on both non-regression and future developments force in UK law. Following further cross-party talks, we will shortly be bringing forward detailed proposals to ensure that as we leave the EU, we not only protect workers’ rights but continue to enhance them.

As the Government committed to the House last week, we are today publishing the paper assessing our readiness for no deal. I believe that if we have to, we will ultimately make a success of no deal, but this paper provides an honest assessment of the very serious challenges it would bring in the short term, and further reinforces why the best way for this House to honour the referendum result is to leave with a deal.

As I committed to the House, the Government will today table an amendable motion for debate tomorrow, but I know Members across the House are genuinely worried that time is running out and that if the Government do not come back with a further meaningful vote or they lose that vote, Parliament will not have time to make its voice heard on the next steps. I know too that Members across the House are deeply concerned about the effect of the current uncertainty on businesses, so today I want to reassure the House by making three further commitments.

First, we will hold a second meaningful vote by Tuesday 12 March at the latest. Secondly, if the Government have not won a meaningful vote by Tuesday 12 March, then we will, in addition to our obligations to table a neutral, amendable Motion under Section 13 of the EU (Withdrawal) Act, table a Motion to be voted on by Wednesday 13 March at the latest, asking this House if it supports leaving the EU without a withdrawal agreement and a framework for a future relationship on 29 March. The United Kingdom will only leave without a deal on 29 March if there is explicit consent in this House for that outcome.

Thirdly, if the House, having rejected leaving with the deal negotiated with the EU, then rejects leaving on 29 March without a withdrawal agreement and future framework, the Government will, on 14 March, bring forward a motion on whether Parliament wants to seek a short, limited extension to Article 50, and if the House votes for an extension, seek to agree that extension approved by the House with the EU, and bring forward the necessary legislation to change the exit date commensurate with that extension. These commitments all fit the timescale set out in the Private Member’s Bill in the name of the right honourable Member for Normanton, Pontefract and Castleford. They are commitments I am making as Prime Minister and I will stick by them, as I have previous commitments to make Statements and table amendable Motions by specific dates.

Let me be clear: I do not want to see Article 50 extended. Our absolute focus should be on working to get a deal and leaving on 29 March. An extension beyond the end of June would mean the UK taking part in the European Parliament elections. What kind of message would that send to the more than 17 million people who voted to leave the EU nearly three years ago now? The House should be clear that a short extension—not beyond the end of June—would almost certainly have to be a one-off. If we had not taken part in the European Parliament elections, it would be extremely difficult to extend again, so it would create a much sharper cliff edge in a few months’ time.

An extension cannot take no deal off the table. The only way to do that is to revoke Article 50, which I shall not do, or agree a deal. I have been clear throughout this process that my aim is to bring the country back together. This House can only do that by implementing the decision of the British people. The Government are determined to do so in a way that commands the support of this House, but just as government requires the support of this House in delivering the vote of the British people, so the House should respect the proper functions of the Government. Tying the Government’s hands by seeking to commandeer the Order Paper would have far-reaching implications for the way in which the United Kingdom is governed and the balance of powers and responsibilities in our democratic institutions, and it would offer no solution to the challenge of finding a deal which this House can support.

Neither would seeking an extension to Article 50 now make getting a deal any easier. Ultimately, the choices we face would remain unchanged: leave with a deal, leave with no deal, or have no Brexit. When it comes to the Motion tomorrow, the House needs to come together as we did on 29 January and send a clear message that there is a stable majority in favour of leaving the EU with a deal.

A number of honourable and right honourable Members have understandably raised the rights of EU citizens living in the UK. As I set out last September, following the Salzburg summit, even in the event of no deal, the rights of the 3 million EU citizens living in the UK will be protected. That is our guarantee to them. They are our friends, our neighbours and our colleagues. We want them to stay. But a separate agreement for citizens’ rights is something the EU has been clear it does not have the legal authority for. If it is not done in a withdrawal agreement, these issues become a matter for member states, unless the EU were to agree a new mandate to take this forward.

At the very start of the process, the UK sought to separate out this issue, but the EU has been consistent on it. However, my right honourable friend the Foreign Secretary has written to all of his counterparts and we are holding further urgent discussions with member states to seek assurances on the rights of UK citizens. I urge all EU countries to make this guarantee and end the uncertainty for these citizens. I hope that the Government’s efforts can give the House and EU citizens here in the UK the reassurances they need and deserve.

For some honourable and right honourable Members, taking the United Kingdom out of the European Union is the culmination of a long and sincerely fought campaign. For others, leaving the EU goes against much that they have stood for and fought for with equal sincerity for just as long. But Parliament gave the choice to the people. In doing so, we told them that we would honour their decision. That remains the resolve of this side of the House. But last night we learned that it is no longer the commitment of the Leader of the Opposition. He has gone back on his promise to respect the referendum result and now wants to hold a divisive second referendum that would take our country right back to square one. Anyone who voted Labour at the last election because they thought he would deliver Brexit will rightly be appalled. This House voted to trigger Article 50 and this House has a responsibility to deliver on the result. The very credibility of our democracy is at stake. By leaving the EU with a deal, we can move our country forward.

Even with the uncertainty we face today, we have more people in work than ever before, wages growing at their fastest rate for a decade and debt falling as a share of the economy. If we can leave with a deal, end the uncertainty and move on beyond Brexit, we can do so much more to deliver real economic progress to every part of the country. So I hope that tomorrow the House can show that with legally binding changes on the backstop, commitments to protect workers’ rights and the environment, an enhanced role for Parliament in the next phase of negotiations and a determination to address the wider concerns of those who voted to leave, we will have a deal that this House can support. In doing so, we can send a clear message that this House is resolved to honour the result of the referendum and leave the European Union with a deal. I commend this Statement to the House”.

My Lords, that concludes the Statement.

My Lords, I thank the noble Baroness for repeating the Statement on Brexit, which is clearly high on everyone’s agenda. I have sat beside my noble friend Lady Smith of Basildon on previous occasions when she has rightly described the Government as, “living in the moment ... managing to get through another week …providing less clarity rather than more … failing to give any confidence that the PM knows where this is going or, more worryingly, ploughing on towards the cliff edge”. Indeed, as my noble friend has said, it seems that each week MPs are told to expect a meaningful vote the following week, only for it to be delayed again and again. Today, 31 days until our planned departure, this is even more true.

In fact, the most significant of the Prime Minister’s words were those briefed to journalists on her plane to the summit; namely, that there would be no meaningful vote in the Commons tomorrow but that again it would be delayed until 12 March, 17 days before 29 March, and even then with no guarantee that her deal would pass muster there. So, on 27 February, more than a month after the 21 January date in the withdrawal Act by which the Government should respond in the event of a deal not being possible or not being ratified, Mrs May still has not allowed the Commons a meaningful say on the next steps. It is the Prime Minister’s new date, that of 12 March, which changes the dynamic of Parliament and Government. That is because the Government seem to have given up their ability to govern and, as we heard over the weekend and last night, there are Cabinet and other Ministers who are prepared to resign or defy the Whip to end this footsie with a no-deal threat. They are right to insist that Parliament has to put an end to this reckless nonsense of threatening our own economic future—a sudden departure from a massive trading bloc into the unknown territory of WTO terms of trade with new tariffs and formalities as well as costs to industry—simply so that the Prime Minister can try and pull her recalcitrant ERGers into the government Lobby.

It was perhaps the threat from these Ministers and the likely success of the Cooper-Boles-Letwin amendment that forced today’s undertaking to ensure a vote such that we could,

“only leave without a deal on 29 March if there is explicit”,

consent in the Commons. However, the undertaking is only to exclude departure on 29 March without a deal. It does not rule out the continued threat of a no-deal departure altogether. Indeed, the Prime Minister explicitly said that a subsequent Article 50 extension,

“cannot take no deal off the table”.

All she is promising is a temporary parliamentary block on no deal prior to reinstating it as a continuing threat during the months ahead. This will not do. Both this House and the other place have made it clear that this should never be our departure route. It is damaging and madness to contemplate otherwise, as many of her ministerial colleagues in this House and in the Commons know full well.

Moreover, businesses are clear: whatever the end outcome, they need time to plan and adjust. A no-deal outcome with no transition period simply does not allow for that. The cost to our citizens living in the EU could be enormous as their driving licences could be worthless in months, their health cover end, and their residency and employment status change. As the government analysis released at 5 pm this evening makes clear, a significant proportion of critical no-deal projects are not on track. It also says that despite the publication of no-deal guidance, a large proportion of businesses and citizens are not adequately prepared. In particular, food businesses are unprepared, with concerns that consumer panic will exacerbate any shortages. There will be a more severe impact in Northern Ireland than in Great Britain and potential gaps in data flows without an adequacy decision. The report’s conclusion is damning, saying that,

“the short time remaining before 29 March 2019 does not allow Government to unilaterally mitigate the effects of no deal.”

I have to say that the word “irresponsible” is too mild a term for the Prime Minister’s refusal to take no deal completely off the table.

Such is the stalemate—and worse, the crisis—in government over Brexit that tomorrow Labour will ask the Commons to vote on our alternative for a deal. We will remind the Government that of the 432 votes cast against the deal, only a minority were Conservative, focusing on the backstop. The Opposition’s 300 votes against the deal were about the political framework’s inadequacies. Yet the Prime Minister has sought only to buy off the Tory rebels, dismissing these other major concerns about our future relationship with the EU. So we will seek to do what the Government have failed to: win cross-party support for a closer relationship with the EU after Brexit. Should that fail, when the Government return to Parliament, be that on 12 March or next week, Labour will support a call for a public vote on Mrs May’s deal since in its unamended form it risks our country’s economic prosperity, internal security and global influence in a way that Parliament by itself must not be given the freedom to allow to happen.

Your Lordships will know that we preferred Parliament to oversee the Article 50 process and for the Government to craft a future relationship with the EU to maintain growth and prosperity which could command support in the Commons and the country. They have spectacularly failed to do so. And if the Government cannot command the confidence of Parliament on this issue, they should go back for a new public mandate.

We face testing times. Whatever the outcome in the Commons—to accept or to block no deal—legislation will, as has been said, be required with great speed, at the very least to change by SI the exit date to allow for an Article 50 extension. But more than that, other legislation is likely which, because of its importance, demands careful unhurried scrutiny. Will the Leader of the House therefore give her support to an extension of Article 50? We know that Cabinet responsibility seems to have broken down, so let her break free and give us that understanding. For the sake of business as well as for our own sake, will she allow that extension, and guarantee that there will be no attempt to fast-track vital Bills to make up for the shameful delay caused by the Government’s own failure in negotiation?

Will the noble Baroness also commit to allowing proper time for scrutiny and debate, and for consultation with relevant stakeholders on the detail of legislation? And will she take back to the Prime Minister our view that until no deal is ruled out, not just for 29 March but permanently, we will have little faith that she is putting our country ahead of her party.

My Lords, I thank the Leader of the House for repeating the Statement. The first interesting thing about it is the insight it gives us into the state of the negotiations between the UK the EU. We are told that they are “focused”, and “making good progress”, that they are “constructive” and “positive”, and finally that they are “continuing”—which is all sort of mildly encouraging. But following the passage of the Brady amendment a couple of weeks ago, the Government went back to Brussels to try to get amendments to the provisions relating to the backstop in one of three ways. The first was a time limit, the second a right for the UK unilaterally to withdraw from it, and the third was the development of so-called “alternative arrangements”, which would render the backstop unnecessary.

Of these, the EU made it clear from the start that Nos. 1 and 2 were non-negotiable, which left only No. 3 —alternative arrangements. The Statement is very clear about where negotiations on alternative arrangements have got to. The Prime Minister says that we have,

“agreed to consider a joint work stream to develop alternative arrangements … This work will be done in parallel with the future relationship negotiations … Our aim is to ensure that, even if the full future relationship is not in place by the end of the implementation period, the backstop is not needed because we have a set of alternative arrangements ready to go”.

The Prime Minister has therefore accepted that no concrete progress whatever will have been made on defining any alternative arrangements before 29 March. This means that, of the three possible ways of dealing with the backstop in a manner that would be acceptable to the Conservative Party and the DUP, none will have been achieved when the next meaningful vote takes place in a couple of weeks’ time. The only logical conclusion, given this failure to achieve anything, is that the Government will again lose a vote on their deal. It is against this background that the remainder of the Prime Minister’s statement needs to be judged.

It is crystal clear that the Prime Minister’s hope was to get to mid-March and, despite having failed to make substantive changes to the backstop, attempt to scare MPs into voting for a deal they do not support, by threatening them with crashing out of the EU a mere fortnight later if they rejected it. Faced with the Cooper-Letwin proposal, which would in those circumstances defer the withdrawal date, and a rebellion of Cabinet and more junior Ministers, she has today bowed to the inevitable and said that if the Commons voted against her deal and against no deal, she would put a further Motion to the House of Commons providing for an extension to Article 50.

The Prime Minister has said that the key votes will be on the 12 and 13 March at the latest. Why “at the latest”? Does the Prime Minister think there is any chance whatever of having an agreement with the EU that she would be able to bring back to the Commons next week? Whatever the exact timing, and whatever our concerns about the somewhat convoluted approach being proposed by the Prime Minister, that is a welcome recognition by her that the Cooper-Letwin Bill would otherwise pass, and that there is a majority in the Commons to extend Article 50. The challenge with which our colleagues in another place have to grapple is whether they trust the Prime Minister’s word or whether they want the assurance that the Bill would have provided. I believe that Oliver Letwin is happy to accept the Prime Minister’s assurance, but I am a bit unclear as to where Yvette Cooper has got to on that. We will just have to see how events pan out.

In any event, the Prime Minister’s principal argument —indeed, her only argument—against such a Bill is that it would tie the Government’s hands and have far-reaching constitutional implications. By this she means that the Commons would take back some control of the way in which it organises its business. Will the Leader of the House accept that for many of us, this seems a positive development, not a constitutional outrage?

If there is no Cooper Bill, it is highly likely that the Prime Minister’s Motion to defer Article 50 will pass on 13 March, but this is only phase 1 of getting out of the mess we are in. As Sarah Wollaston put it earlier today in responding to the Statement, we are only talking about:

“a short gangplank added to the cliff edge”.

Phase 2, and the only way of breaking the deadlock, is to put the Government’s deal to the people for their final decision, with an option to remain in the EU if they believe that that would be better for our economy, security and influence. Today the Prime Minister did a U-turn on extending Article 50. We now wait with eager anticipation for her next U-turn: to give the people a vote.

I thank the noble Baroness, who I welcome to this joyous occasion; we have many such occasions and I hope to see her again soon. I also thank the noble Lord for his comments. First, I have said consistently over the last few months that I want to leave the European Union with a deal. I am part of a Government who are working hard to deliver it, and we will continue to do that in the coming weeks.

Both the noble Lord and the noble Baroness touched on legislation. My noble friend the Chief Whip and I have been able to work constructively through the usual channels, and we will continue to do so. We have not sought, and will not start seeking, to railroad Bills through this House. I think that all noble Lords would agree that we must balance the need to ensure that vital legislation sent to us from the other place is passed within a reasonable time, and the need to ensure that this House has adequate time to scrutinise it in the usual manner.

We are as aware as anybody else of the constraints of the parliamentary timetable, and we will not be unrealistic or unreasonable in what we ask the House to do. We will continue to work with the usual channels to try to ensure the greatest possible degree of cross-party consensus as we move forward. As we have shown with the Trade Bill, where my right honourable friend the Trade Secretary yesterday announced safeguards in the event that the Bill has not received Royal Assent in March, the Government are both responsible in putting in temporary arrangements if necessary, and reasonable about allowing this House the scrutiny of legislation that it deserves.

I am afraid that I disagree with the noble Lord, Lord Newby, who said that no progress had been made on alternative arrangements. That is simply not true. President Juncker has agreed that the EU will give priority to this work. We have agreed joint work streams together to go forward. However, implementing alternative arrangements will require, for instance, a number of derogations from EU law. These are issues that we have to work through with the EU. That is why joint work will be going forward in parallel to the further discussions on the political declaration.

The Prime Minister has spoken to the leaders of every member state since I last made a Statement on this issue. She has discussed with them the guarantees that could be given to underline the backstop’s temporary nature—something about which the House of Commons made clear that it was concerned—and to give the appropriate legal assurances to both sides. She has discussed the role that alternative arrangements could play, and changes to the political declaration. We are moving forward. The Prime Minister has said that if she can come forward with a deal that addresses the concerns of the House of Commons before 12 March, she will do so.

This is the mother of all shambles. The message is clear: the Government are limping towards an extension, contrary to all the promises that have been made—and, crabwise, the Government are surely moving towards a people’s vote.

I am sorry to disappoint the noble Lord, but that is not the case. The Government are working towards a deal. We are working towards getting the changes to the backstop that the House of Commons desires and we will bring back a deal that we believe will command the support of the House.

My Lords, my noble friend knows that I sincerely hope that there will be a deal. However, does she accept that if, as is quite likely, there has to be an extension, it must be a sensible extension that gives proper time for the extraordinary events—I choose my words carefully—of the past two years to be put right? We therefore do not wish to have an extension that is merely to the end of June, even if there are implications for the composition of the European Parliament. But I repeat that I hope we have a deal—as does my noble friend—in time for that not to happen.

I agree with my noble friend. We are all working hard to achieve a deal, but the Prime Minister has made clear that if, following a series of votes in the House of Commons, as set out in the Statement, there is a vote to ask for an extension to Article 50, she will want it to be for the shortest time possible.

My Lords, it is good that the Prime Minister is now ready, à contrecoeur, to contemplate an extension. It is clear—and has been for some time—that an extension is absolutely necessary. However, she says in her Statement that an extension cannot take no deal off the table—and of course that is perfectly true. But she could and should take no deal off the table. If you listen to the voice of business and the nation at large, it is grossly irresponsible to play this game down into the last days and beyond. As the noble Baroness, Lady Hayter, pointed out, we are looking to maintain the threat of no deal throughout the period of extension, however long that is. This cannot be right in the interests of the country.

What is right and in the interests of the country is what the Prime Minister has been working on for the past two years, which is to get a deal that leads to a strong partnership between the EU and the UK going forward. That is what she is focused on and will continue to focus on. We are having constructive discussions with EU member state leaders, the Commission and the Council in order to get to that point. That is what the Prime Minister is focused on and that is quite right.

My Lords, we are led to believe that the Prime Minister is turning over a new leaf, but the Statement ends by still talking about legally binding changes to the backstop. Given the Brady amendment, that is absolutely untrue, as my noble friend Lord Newby made clear. The wording of the Statement contradicts the idea that the backstop will be changed. Will the Minister convey to the Prime Minister that absolute honesty would be appreciated? Secondly, following on from what the noble Lord, Lord Kerr, said, the Minister talked about the Government being responsible. According to the published analysis on no deal, we are looking at up to a 9% hit to GDP in 15 years and £13 billion of extra red tape costs on businesses that have never had to deal with customs processes before. How can she possibly contemplate inflicting no deal on the country and not taking it off the table?

As I have repeatedly said, the Prime Minister is looking at three options and discussing them with the EU. These are: the alternative arrangements, such as technological solutions; a legally binding time commitment to the existing backstop; and a legally binding unilateral exit clause to that backstop. That is what she has been talking to the EU about. The noble Baroness is right that the paper published this afternoon provides an honest assessment of the real challenges that no deal would bring. That is why we are working so hard to achieve a deal, and it would be great if noble Lords across the House would support us in that endeavour.

My Lords, is it not the case that, when the Prime Minister talks about a working party to discuss alternative arrangements to the Northern Ireland backstop, she is fantasising? How is it possible to agree something and put it in place on the Northern Ireland border within the space of a bit over a year and a half before the end of the implementation period? Are the Government serious? How on earth do they expect this to happen?

As I have said, the alternative arrangements are not a novel concept; they are mentioned and referred to in the political declaration, and discussions have happened. Many of the existing technologies that could be used to avoid a hard border are already developed. However, many of them have not been used together, which is why further work needs to be done. We have to make sure that they are workable and, importantly, operate in the specific circumstances of Northern Ireland. It is doable and we are working together to try to achieve it.

The Statement says clearly:

“What kind of a message would that send to the more than 17 million people who voted to leave the EU nearly three years ago now?”

Is the Prime Minister now sending messages to heaven and to hell? This was three years ago. Sadly, more than 1 million of the 17 million people have passed away and there are 2 million youngsters who were not old enough to vote but now are—and the Prime Minister says that the very credibility of our democracy is at stake. Given that the Labour Party has finally come round to accepting that the best option is a people’s vote, and that the polls show clearly that the majority of the people of the country today—not three years ago—would prefer to remain and want a people’s vote, does the Leader of the House agree that the Government should accept the reality of today?

If the House of Commons votes against leaving without a deal, are the Government committed to supporting an extension of Article 50 for as long as is needed to get a deal?

As I have said, a series of votes will need to happen at that point. However, the Prime Minister has made it clear that she does not want to extend Article 50, but if the House of Commons votes to do so she would like the shortest possible extension.

My Lords, will my noble friend use her good offices to argue to the Prime Minister that we should be negotiating for observer status for a small group of MEPs to remain if the extension lasts beyond the end of June? It should not be required to last beyond that. We should not use as a barrier to that extension elections to the European Parliament. There is a category in applicant countries for MEPs to have observer status before they join. I would argue that we should have that status as we leave, so that we can keep a small group of MEPs in position, and that should not be used as an excuse not to continue with the extension.

The Prime Minister’s focus over the next couple of weeks will be on achieving a deal that can get the support of MPs across the House of Commons, so that we can move on to focus on our future relationship and develop the strong partnership with the EU that we all want to see.

My Lords, fairly read, this Statement is about process, not progress. The truth is that the Empress still has no clothes. The Prime Minister has nothing of substance to tell either the House of Commons or your Lordships’ House. I want to ask two specific questions. First, what legal changes did the Prime Minister discuss with Mr Juncker last week, as she refers to in the Statement? Secondly, why does she assume in the ninth-to-last line of the Statement that there will be legally binding changes to the backstop? Where is the evidence in support of that assertion?

The Prime Minister has set out the changes that we are looking for. The Attorney-General was out there last week and he is out there again today. He is having discussions on the legal nature of the changes we are looking for.

Does the Minister not agree that it is utterly irresponsible of the Government not to take no deal off the table? All noble Lords need to do is to read the document which was cited earlier. It states:

“Currently, businesses who manufacture or import substances into the EU”—

this is about the chemical sector—

“need to register them with the central European Chemicals Agency ... UK companies would only be able to sell into the EU providing they have transferred their existing registration to an EU-based entity”.

This will cost each company, even small companies, £1,500 excluding admin costs. On top of that they would have to pay EU-WTO tariffs of, on average, 5%.

At the end, this little document, which is full of extraordinary information, says that we are not prepared at all:

“the short time remaining before 29 March 2019 does not allow Government to unilaterally mitigate the effects of no deal. Even where it can take unilateral action, the lack of preparation by businesses and individuals is likely to add to the disruption experienced in a no deal scenario”.

How can a responsible Government who care, one would hope, about the social and economic future of this country not take no deal off the table?

It is exactly because we care about the future of this country that we are working so hard to get a deal, but the legal default position is no deal, so any responsible Government have to prepare for it. We are working towards a deal. If we had the support of Members of both Houses and all parties, we could get there and we could start to move on to the future, which we all want to do.

My Lords, I understand that those who are calling so loudly for no deal are those who are not satisfied with the present deal offered by the Prime Minister but want something better. She therefore needs to be able to negotiate. She needs to have a card. The only available card is the threat of no deal. Why are the people who want to adopt that attitude constantly removing the only card she has in her hand?

I say again that we do not want no deal. The noble Baroness rightly pointed out the severe challenges that it will pose. That is why we are focusing so heavily on getting a deal, trying to address the issues the House of Commons has raised in relation to the backstop and looking more broadly at other issues that have concerned MPs, so that we can bring a package that MPs can support, get a deal, start discussions with the EU about our future relationship and look forward, rather than constantly going round in circles, which is what we have been doing for a while.

My Lords, the Minister said that any responsible Government would prepare for no deal. Is not the trouble that they have not?

We have spent a lot of time preparing for no deal. We have done a lot of work. We have been in touch with business and have been setting up new systems. The fact of the matter is that there are real challenges, and not all no-deal planning is in our gift; it also relies on our European partners. We are doing what we can, but I have repeatedly said that that is not the route we want to go down. We want a deal, and that is what we are trying to achieve.

My Lords, there have been votes in both Houses of Parliament against no deal. Why do the Government not simply accept the will of Parliament on this issue?

As the Statement clearly sets out, if the House of Commons does not pass a meaningful vote, there will then be an opportunity to vote on whether or not it wants to go ahead with no deal.

My Lords, is there now a unified direction of travel of the 27 and the European Parliament? I understand that conflicting messages are coming from within individual Governments about whether or not to support the UK in future on many key matters, including a possible extension of Article 50.

All I can say to the noble Viscount is that since the last Statement the Prime Minister has spoken to leaders of every member state. At the summit over the weekend she had further discussions with President Tusk, Chancellor Merkel, Prime Minister Rutte, President Juncker, Prime Minister Conte and the Taoiseach. Conversations are going well. The EU wants a deal, like we do, so there is a willingness to work together. That is what we are doing. That is why work is intensifying and why the Secretary of State for Exiting the EU, the Attorney-General and the Prime Minister have all being making regular trips to Brussels to make sure that we can get this deal over the line.

My Lords, this House and the other place have made it clear that they do not support leaving the EU without a deal. Business is crying out for some kind of certainty. We are now saying that we will not take no deal off the table and are just moving the deadline from the end of March to the end of June. That does not take no deal off the table, give reassurance to business or respect the will of Parliament. I implore my noble friend to consider the position this country is in and that the risk to people’s jobs and livelihoods is really serious. By limiting the extension to a very short period, we will not give ourselves the best chance of negotiating that good deal and relationship that we want and need to achieve.

We are extremely clear about the seriousness of the situation, which is why we are continuing to work for a deal that can be passed in a vote on 12 March. The Statement sets out a very clear set of steps that will happen after that in order that the voice of the House of Commons can be heard if we do not win the vote on 12 March, but we are committed to trying to do that, and that is what we are all focused on.

My Lords, it is clear that we need the good will of the other members of the European Union to negotiate any sort of positive deal about the future relationship. The Prime Minister must be using all the good will we have accumulated over the past 50 years in the patience she requires from the other people she spends all her time talking to. Meanwhile, the officers of the European Research Group continue to insult the Germans, the European Commission and others—as do some of the right-wing media—suggesting that we must escape from the European Union and leave the enemies of Britain in Brussels, Berlin, et cetera, behind. The Prime Minister has said nothing to discourage these right-wing Brexiteers from antagonising our future European partners. Surely if the Government want to reunite the country, they should also say that even if we are leaving we need the positive and active co-operation of our neighbours and allies across the channel.

The noble Lord is absolutely right. Of course we need good relationships. In fact, those relationships are bearing fruit in the constructive discussions at the moment. The Prime Minister and all of us are very clear that we want a positive, strong, close relationship with the EU. That is what we want to achieve. That is the work that we want to get on with once we move past the withdrawal phase, and that is what we are all aiming to do.

My Lords, I think the vast majority of Members of this House are of the view that no deal would be a disaster. We hear from some people from the European Research Group that somehow it is doable. This House is discussing not whether no deal would be a minor inconvenience but how we avoid it. Given that—despite what the leader of the Opposition has said—there is no alternative deal on the table, there are only two ways: the Prime Minister’s deal or a second referendum. They are the only two options. The Prime Minister was clear on that. The Government could help by being much clearer about the sheer scale of the issues that would arise from no deal. Saying it is a negotiating card is absurd. It is a bit like threatening to shoot yourself in the foot and saying that it is okay because other people will be spattered with blood. It is not a negotiating card but an act of wilful self-harm. I know the Government are seeking to avoid it and the Prime Minister is trying extremely hard, but we all have to be very clear that, whatever happens, no deal would be extremely harmful for business, the citizens of this country, EU immigrants here and UK citizens in Europe. We need to be clearer about it and to work together to try to avoid it.

We are trying to work together to avoid it, which is why there have been numerous discussions between the parties, both Front-Bench and Back-Bench, in the House of Commons. We are absolutely trying to work together to address the concerns that have been raised by MPs. The noble Lord is right. We do not want no deal. That is why the Prime Minister has been so focused on trying to make the changes that will be required to get the support to get her deal over the line so that we can start to talk about our future relationship—the strong relationship we want with the EU going forward.

Can the Government assure the people of Northern Ireland that the border between Northern Ireland and the Republic of Ireland will continue, and that there will be no new border created between Great Britain and Northern Ireland?

We have been clear that we will do everything in our power to avoid a hard border in all scenarios, but there are clear EU rules that apply to trading goods with third countries, and with the Commission outlining, in its no-deal publication in December, that there will be no exemptions for Ireland on border requirements. We and the Irish Government are very clear that we are doing everything in our power to avoid a hard border. That is why we are both looking for guarantees around the backstop. That is also why we are looking at technological developments to ensure that we do not go back to that because neither side wants it, and I can assure the noble Lord that that is at the top of the Prime Minister’s priority list.

Offensive Weapons Bill

Report (1st Day)

Clause 1: Sale and delivery of corrosive products

Amendment 1

Moved by

1: Clause 1, page 1, line 9, leave out first “all”

Member’s explanatory statement

This amendment, along with similar amendments to this Clause, amends the defence for the offence in this section to set a less demanding standard than all reasonable precautions / all due diligence.

My Lords, Amendment 1 is in my name and that of my noble friend Lord Paddick, as are all the other amendments in this group—Amendments 2, 15, 16, 25, 26, 64, 65, 67, 68, 70 to 73, 78 and 79—16 amendments, each deleting a three-letter word. The word is “all”, as in taking “all reasonable precautions” and exercising “all due diligence” in connection with the sale of corrosive products to someone under 18, in Clause 1; the sale of bladed articles to someone under 18, in Clause 15; and the delivery of bladed articles to residential premises, in Clause 18. These are defences to the offences contained in those clauses, so it is no minor matter.

The meaning of “all reasonable precautions” and “all due diligence” emerged in Committee. The noble Lord, Lord Lucas, raised it, others followed it up, and the noble and learned Lord, Lord Judge, said:

“If I might say so, ‘all’ means ‘every’. Without ‘all’, you have just to take reasonable precautions and show due diligence. Once you put ‘all’ in, you fall foul of any particular point you could have but did not look at and did not do”.

Clearly, this is a very high bar, and it took a number of noble Lords somewhat by surprise, I think. I am unclear about what it might mean, particularly when coupled with “reasonableness”, because it is not just about doing the reasonable thing; it is about doing every reasonable thing. The Minister said in that debate:

“All roads are leading back to the guidance”,—[Official Report, 28/1/19; col. GC 163.]

having told the Committee that the Government want to produce guidance—we will debate that later—to ensure that retailers and sellers know what steps they could take, with regard to Clause 1, to ensure that they comply with the law. On the wording, is it about steps that they can take or steps that they must take? It seems to me that the wording used throughout the Bill does not allow for common-sense alternatives or even minor omissions. Of course, guidance is produced by the Executive, not by Parliament. Indeed, to end with a question, will one necessarily have complied with the law, even if one follows guidance to the letter, if all reasonable precautions and all due diligence have to be applied? I beg to move.

My Lords, as the noble Baroness explained, these amendments relate to the level of burden of proof required for retailers and delivery companies if they want to avail themselves of the defences available to them if charged with an offence of selling or delivering a corrosive product or a bladed article to an under-18 or the offence of delivering a corrosive product or bladed article to a residential address. Under these amendments, retailers and delivery companies would need to prove just that they had taken reasonable precautions and exercised due diligence to avoid the commission of the relevant offence, rather than, as the Bill provides, that they took all reasonable precautions and exercised all due diligence, as the noble Baroness explained.

I am not persuaded, despite the noble Baroness’s words, that it is unjust to require a person to prove that they have taken all reasonable precautions and exercised all due diligence to avoid selling or delivering corrosive products or bladed articles to under-18s or to avoid delivering such products or articles to residential premises. Retailers have had to operate to this standard under existing law and to lower the burden of proof would leave us with a burden of proof in the Bill that was out of sync with existing legislation. I will give some examples.

Under Section 141A(4) of the Criminal Justice Act 1988, it is a defence for someone charged with the offence of selling a knife to an under-18 if they can prove that they,

“took all reasonable precautions and exercised all due diligence to avoid the commission of the offence”.

The Licensing Act 2003 requires a defendant to prove that,

“he had taken all reasonable steps to establish the individual’s age”,

in regard to the selling of alcohol to an under-18. Under Section 7 of the Children and Young Persons Act 1933, which prohibits the sale of tobacco to under-18s, the defence is in similar terms. Part 4 of the Gambling Act 2005 includes various offences in relation to children; under Section 63, it is a defence to show that the defendant “took all reasonable steps”.

As a result of these examples in law, I urge that the higher burden of proof is an established defence, and one which has been in place for a significant amount of time without issue. Retailers now know what is required of them by way of proof if they wish to make use of the defence if charged with the offence of selling a knife or bladed article to an under-18. It is understood by retailers, Trading Standards and the police. Having two different burdens of proof in place would, I think, be confusing to all concerned. I do not think it would help the police, Trading Standards officers, prosecutors or the courts. Noble Lords are always calling for consistency, and I think there is a strong argument for consistency here. I hope that, on reflection, the noble Baroness, Lady Hamwee, would agree and be happy to withdraw the amendment.

My Lords, it is certainly a burden in the sense of the weight of it rather than the balance of it, which is how we normally consider the burden of proof. The Minister says that retailers now know. My question was whether they will know from the guidance that is to be produced. I shall have to leave that hanging, as this is the point that we are at. Maybe the Minister will be able to answer that when we come to the next group and talk about guidance. Perhaps we will also have to wait for an answer on whether guidance across all the offences—not just those within this Bill but others that the Minister mentioned—will be consistent. Clearly, we are not going to be of the same mind here but I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendment 2 not moved.

Amendment 3

Moved by

3: Clause 1, page 1, line 10, at end insert—

“( ) The Secretary of State must, within one month of the coming into force of this section, publish guidance as to how the requirements of the defence under subsection (2) may be fulfilled.”Member’s explanatory statement

This amendment, following the Minister's remarks at Committee stage (28 January, HL Deb, col 160GC), is intended to ensure that guidance will be issued, so that those responsible for designing and carrying out checking procedures will be able to judge their adequacy.

My Lords, the noble Lord, Lord Lucas, is unable to be here but has asked me to move this amendment on his behalf so that we may get the matter on the record. However, I will not speak to Amendment 81, which is in this group and also in his name, because he will get the opportunity to do so if we leave it to be discussed in sequence on the next day of Report.

The amendment seeks guidance. We have government amendments in this group, and no doubt the answer to Amendment 3 is Amendment 106. In the Government’s amendment, the guidance is about a large number of offences relating to various sections in legislation, including Clause 1 of this Bill, and therefore it covers a wide area. Guidance can be very helpful—it sounds as though it will be essential here—but, as I have said before, it should not take the place of clear primary legislation. It is executive, not legislative. I beg to move.

My Lords, Amendment 3 in the name of the noble Lord, Lord Lucas, and moved by the noble Baroness, Lady Hamwee, and the noble Lord’s Amendment 81, which he will speak to himself when we come to that point in the Bill, ask the Secretary of State to issue guidance. We are placing burdens on shop workers and delivery drivers, and it is incumbent on the Government to issue proper guidance. I know that we have the government amendments and I look forward to the Minister setting them out, as we have a situation where people can be prosecuted and end up in prison, so we need to make sure that they understand their responsibilities. I look forward to the Minister setting that out for the House.

My Lords, I think that a bit of certainty here is essential. One of the problems that exist elsewhere is uncertainty surrounding what is going to be required. It is very difficult for traders if they do not know what part they are going to play. However, when we come to the next amendment I will say something about that which I think will be helpful.

I thank noble Lords for their comments. I agree that, as the noble Lord, Lord Kennedy, and the noble Earl, Lord Erroll, pointed out, people have to understand their responsibilities. In Committee there was much debate about the need for guidance, particularly for retailers, manufacturers, delivery companies and the like, about the operation of the provisions in the Bill relating to the sale and delivery of corrosive products and offensive weapons.

In response to the debate in Committee, I said that it was our intention to issue appropriate guidance. A number of noble Lords, including my noble friend Lord Lucas, wanted to see that commitment reflected in the Bill, and government Amendment 106 does just that. It enables the Home Secretary, Scottish Ministers and the Northern Ireland Department of Justice, as the case may be, to issue guidance about the provisions in the Bill, and the existing law as amended by the Bill, relating to corrosives and offensive weapons.

Importantly, the amendment also sets out that, before guidance is published, the relevant national authority must consult,

“such persons likely to be affected by it as the authority considers appropriate”.

We would, for example, expect to consult organisations representing both small and large retailers of knives and corrosive products. This would ensure that those directly impacted by these measures have a hand in developing the guidance that is most useful to them. That is an important part of the Bill.

Were he in his place, I hope that my noble friend Lord Lucas would agree that government Amendment 106 covers similar ground to his Amendments 3 and 81 and, indeed, provides a more comprehensive list of the provisions where it might be appropriate to issue guidance. Government Amendments 108, 112 and 113 are consequential to Amendment 106. I hope that on that basis the noble Baroness will be content to withdraw Amendment 3 and support the government amendments.

Amendment 3 withdrawn.

Amendment 4

Moved by

4: Clause 1, page 1, line 19, after second “if” insert “they used a prescribed electronic method of establishing the purchaser’s age, or”

Member’s explanatory statement

This amendment is intended to enable the Bill to encompass such electronic systems of age verification as Yoti once those systems have passed scrutiny by the Home Office, as a way of addressing age verification challenges.

My Lords, on behalf of the noble Lord, Lord Lucas, and at his request, I move Amendment 4 and shall speak also to Amendment 69 in this group.

Amendment 4 is intended to enable the Bill to encompass electronic systems of age verification such as Yoti, once those systems have passed scrutiny by the Home Office, as a way of addressing age verification challenges. With regard to Amendment 69, the Bill requires retailers to undertake age verification online and offline. In the absence of recognised standards against which online or offline age verification schemes can be audited and recognised, this amendment allows retailers to comply with the requirements of the Bill through any scheme they choose which is recognised by the Secretary of State. I beg to move.

My Lords, Amendments 4 and 69, moved by the noble Lord, Lord Paddick, on behalf of the noble Lord, Lord Lucas, raise the issue of age verification. Our world is becoming more digital and, when age verification can be done digitally, it should obviously be done in that way. That might not be possible yet but it is becoming easier and, if it can be done, it certainly should be. I have to admit that I had never heard of Yoti. Perhaps I am showing my age but I had absolutely no idea what it was. However, I have learned something today. Amendment 69 would provide for schemes to be recognised by the Secretary of State as suitable for this purpose and would provide for the maintenance and updating of a list of those schemes. That seems sensible and I certainly support the amendments.