House of Lords
Monday 7 March 2022
Prayers—read by the Lord Bishop of Leeds.
National Insurance Contributions
My Lords, the Government have published several assessments of the health and social care levy’s impacts, including distributional analysis of the tax and spending announcements’ combined impact, a technical annexe in our plan for health and social care, and a tax information and impact note. Some 6.1 million individuals earning less than the primary threshold, equivalent to £9,980 in 2022-23, will not pay the levy; the highest-earning 15% will pay over half the levy’s revenues.
My Lords, from next month, workers with earned annual income above £9,880 will pay national insurance at a rate of 13.25%. At the same time, 265,000 recipients of at least £65.8 billion of chargeable capital gains will not pay a penny, even though they use the national health service and social care. Does the Minister agree that this is outrageous and that this injustice should end as soon as possible?
My Lords, we have introduced the levy through the national insurance system—that is the system that we have used previously to fund improvements to the healthcare system and, in this case, the social care system. We have ensured that the levy also applies to dividend income, so that it reaches a wider number of people who will benefit from it.
My Lords, last Friday, disgracefully, to my mind, Shell bought 750,000 barrels of Russian crude at a record discount price of £28.50 to lock in a minimum of £20 million in additional profits. Brent crude has soared to £139 a barrel, cascading yet greater profits to the oil and gas companies. Can the Minister think of a single excuse not to cancel the rise in NICs and replace it with a windfall tax on those companies?
My Lords, we have discussed a windfall tax before and, in addition to the reasons that I gave then, the increase in NICs—the health and social care levy—funds an ongoing increase in health and social care funding in this country. A windfall tax would be a one-off tax; it would not provide the sustainable basis that we need to fund our health and social care system.
My Lords, the Minister will be aware that, even before the pandemic, the poorest 10% of households paid 47.6% of their income in direct and indirect taxes. That compares with 33.5% by the richest 10% of households. So the national insurance hike will just worsen the hit on the poorest. Can the Minister explain what the latest hike in national insurance will do to the tax burden on the poorest, and when the Government will begin to reverse that trend?
My Lords, as I explained in my original Answer, the 6.1 million individuals earning less than the primary threshold will not pay the levy at all. In addition, in the analysis that I mentioned earlier, if you take the package together, both the levy and the spending that is ring-fenced for the health and social care system, lower-income households will be the largest net beneficiaries from this package, with the poorest households gaining the most.
My Lords, does my noble friend the Minister agree with me that those who call for a windfall on the oil companies would in fact be penalising the shareholders? And who are the shareholders? They are the pensioners of this country—they are the one who hold most of the shares in these oil companies.
My Lords, we have strayed more on to a windfall tax than I expected, but I say to my noble friend that he makes a good point. The issue of energy security is at the top of people’s minds at the moment. The Government see gas, for example, as part of our transition towards net zero. We want to allow people to invest in our North Sea oil and gas fields as part of that, so a windfall tax could also have a negative impact on that.
My Lords, there is no doubt at all that at the lowest level this tax will be a detrimental pay cut for most workers in our country—there is no doubt at all about that. It will be felt most harshly by them, while they are at the same time caught up in the cost of living crisis that we have. They are being squeezed dry, as we know, by soaring inflation—and that is before next month’s massive hike. Can the Minister possibly justify this attack on the lowest-paid workers in our country and, if so, how can she?
My Lords, the Government have been very clear in their justification for the health and social care levy. The Government are committed to the responsible management of the public finances, which is why we have had to take tough but responsible decisions to increase taxes in order to fund a significant increase in permanent spending on the NHS and social care. On the cost of living challenge, that is why, this year and next, the Government will provide £20 billion of support to help those people who are struggling to meet their household bills.
My Lords, my noble friend is correct that, as well as seeing record highs in prices recently, we have in recent years also seen record lows. With that came record lows of investment; that is why the Government are very careful before considering questions such as a windfall tax.
I say to the noble Lord that it is important to take the impact of national insurance and income tax together. When you do that, the combined tax rate for those earning in the lower bracket is 32% and, in the upper bracket, it is 42%. So, overall, we still have a progressive system.
My Lords, there is no doubt that the social care and health sectors need money from the taxpayer, but why can it not be from those people who are the richest—the large companies that pay no tax? When will the Government get round to them, rather than oppressing ordinary working families?
My Lords, an important aspect of the health and social care levy is that it is paid by employers as well as employees—because they benefit from having a healthy, supported workforce. Of course, we have also announced increases in corporation tax, because the Government did an awful lot to support businesses during the pandemic and everyone needs to contribute now to getting us back on to a path of sustainable finances.
My Lords, I declare an interest as I am of pensionable age and therefore will not have to pay national insurance until next year. Given the extra money the Government will receive as a result of taxes on fuel, is there not a case for considering deferring the increase in national insurance until next year, so that everyone is in the same boat, as it were? People are going to be faced with immense costs for fuel, as well as the impact of inflation on the standard of living.
My Lords, the additional spending from the levy kicks in from this year onwards, so we matched the introduction of the levy with the introduction of the new spending, which cannot wait; we need to address the significant backlogs we have in our healthcare system. But my noble friend is correct that we have designed the new levy to apply also to people over pensionable age, as they will benefit in no small degree from the increased spending.
My Lords, the decision to increase national insurance this April and introduce a longer-term health and social care levy was taken in a certain economic context. Things have changed substantially since. Inflation is high and will rise further. The Bank is likely to hike interest rates as a result. The Russians’ illegal invasion of Ukraine will bring its own economic consequence. A U-turn is supported by the public, businesses, Conservative Back Benchers and even some in the Cabinet. Will the Chancellor finally take note and act immediately to ease the cost of living crisis?
My Lords, I acknowledge that the circumstances have changed—that is why the Government have also changed our approach by, for example, announcing £9 billion of support to help people with their increased energy costs. The things that have not changed are the pressure on our healthcare system, the pressure on our social care system and the long waiting lists we see as a result of Covid. We need to start dealing with those now; they need proper funding and that has to come from within the levy.
My Lords, the Minister is right to point out the pressure on the health and social care sectors. Assuming the Government do carry on with their plan, does she agree that it is unlikely that social care is going to see very much of this money and, even if it sees all of it, it is completely not enough to solve the problem in our social care service?
My Lords, the noble Lord is correct that in the early years it will go further towards the NHS to help deal with the backlogs; the spending on social care is aligned with the introduction of our social care reforms. But that is not the only funding that is going into the social care system; in recent years, additional funding has gone in to support the social care system.
Global Refugee Forum
My Lords, at the first Global Refugee Forum the international community demonstrated its commitment to responding to the plight of refugees and host communities, announcing pledges and sharing examples of good practice. The UK underlined our leadership in longer-term approaches, highlighting support for Syrian refugees in Jordan and the Rohingya in Bangladesh.
My Lords, I thank the noble Lord for his reply. Earlier this year, my noble friend Lord Alton’s debate discussed the huge number of refugees and displaced people. Now, the brutal invasion of Ukraine has caused a whole new crisis. Does the noble Lord agree that the Global Refugee Forum calls for continuous co-operation between Governments and their officials? Can he give the House some good news of progress, especially in relation to eastern Europe and the Mediterranean?
I thank the noble Lord for his question. Of course, he is right; the UK is one of the High Commissioner for Refugees’ largest financial supporters. We provided more than £714 million in funding across bilateral and multilateral channels between 2016 and 2020, and the same is true in relation to other refugee and migration-related organisations. We provided the International Organization for Migration with around £89 million in 2020, making us the third-largest donor. We were the second-largest donor to the UN Office for the Coordination of Humanitarian Affairs, the second-largest donor to the International Committee of the Red Cross—I could go on. The UK has a proud record of supporting refugees globally.
My Lords, does it show leadership by this country when we take a handful of Ukrainian refugees, and when we send those who arrive in Calais to Paris or Brussels to get their papers sorted out? Is that not a miserable response compared with Ireland, which has so far taken nearly 700, has committed to taking 2% of all the refugees and is talking about a figure of 100,000 to avoid another Calais? Should we not be ashamed of ourselves?
The figure that has been quoted and to which I think the noble Lord is referring—that the UK has so far accepted 50 people—is, in reality, growing very significantly. To quote Minister Cleverly from the other place, he says that we are looking to create something very large-scale very quickly. Initially it will be slower, but that will pick up. There is no doubt from the words spoken by the Home Secretary, Priti Patel, today that we have created a new system in record time, precisely to allow a far larger number of refugees into this country.
My Lords, we have all been ashamed, I think, to see the people in the railway stations in places such as Berlin holding up placards saying that they can host one person or two people. Many people in this country would do the same thing. Why are the Government not making this system available so that good people in this country can help people in Ukraine?
We are creating exactly that system. We are creating a humanitarian sponsorship pathway which will open up a route to the UK for Ukrainians who may not have family ties with the UK but who can match with individuals, charities, businesses and community groups of the sort the noble Baroness just mentioned. Those under this scheme would be granted leave for an initial 12 months. There is no limit to the number of people who could be eligible for this scheme: we will welcome as many Ukrainians as wish to come, if they have matched sponsors.
My Lords, this weekend one of the problems seemed to be that there are very few appointments available in the visa application centres in Poland and other surrounding countries. The website through which refugees are trying to access these visa schemes could not cope with the capacity. Does the Minister know when capacity will be in place so that the people fleeing Ukraine to the neighbouring countries can get appointments, get their documents checked and travel to the UK to be reunited with family?
The noble Baroness is right that there have been serious capacity issues. We have just sent a group of UK experts to bolster the UK’s support to countries surrounding Ukraine, to receive and support the increasing flow of refugees fleeing that country. For example, a four-person team has arrived in Poland to support the regional response, providing logistics advice, analysis of needs on the ground and so on. We are also deploying additional experts right across the region in the coming days, including to Moldova where we have humanitarian experts already stationed.
My Lords, it was my privilege to speak at the resettlement conference that happened before the Global Refugee Forum in Geneva in 2019. One of the key lessons that came out of both events was to listen to the voices of refugees in helping to create the system, so that it is more effective. Could the Minister tell us how the voices of refugees in this country are being listened to in order to make the Ukraine system as effective as possible?
The teams are designing an entirely new scheme for an entirely new situation as quickly as possible. That is reflected in the numbers that have so far been reported. But from everything we have heard today— from the Foreign Secretary and the relevant Minister—we are up and running and we are ready now to absorb larger numbers of refugees from Ukraine.
I referred a case to the noble Lord, Lord Ahmad, of a very frail lady in her 90s who has been brought to my attention by World Jewish Relief. She is in Warsaw and, as I say, she is very frail. Will the Minister please return to his department and make sure that her case is expedited? Her granddaughter is a UK citizen. She clearly qualifies to come to the United Kingdom. She is very frail, and she is an example of many others in that situation. Can we make sure that, in this case, the Home Office is not proving to be the kind of block that it has been over Afghan refugees?
My Lords, in Ukraine, there are a number of orphanages where there are helpless children, who cannot do anything for themselves. Could the noble Lord assure the House that thought will be given to how we can protect these children, who have the least in the world?
The noble Lord makes a hugely important point. The answer is yes: this is something that both the Home Office and the Foreign Office are looking at. I would add that the UK has committed an additional £120 million of humanitarian assistance to Ukraine and the region. That money will be used in many different ways, but particularly in supporting those at the front line in terms of vulnerability, of the sort that the noble Lord just mentioned.
My Lords, it is a very fast-moving situation. I do not know the current figure, but I do know that there is no limit to the number of people this country is willing and able to absorb, as I described when outlining the policy just a few moments ago.
My Lords, there was a moving interview on the television this morning of a 25 year-old who has bought a bus and is going to Ukraine to bring orphans back and move people around. Could the Minister tell me what support the Government will give to such people, who are going into this danger zone of their own accord?
My Lords, as I said, we are creating pockets of expertise in countries surrounding Ukraine, specifically to help them deal with the escalating problem of people fleeing Ukraine. Without knowing the details of the case my noble friend described, I imagine that the occupants of that bus would be exactly the kind of people those experts are there to support.
My Lords, the compact is from 2019, so we have had three years that the international community should be addressing. One of the things the International Rescue Committee has highlighted is that women and girls are being left behind in the global effort towards the ambitions of that compact. Can the Minister tell us what we are doing to deal with the disadvantages they face in terms of justice, inclusion and safety so that we respond properly? In particular, how is he addressing this issue in the context of Ukraine?
My Lords, stepping back and looking at the UK’s contribution to tackling human migration, a problem that has become dramatically worse in the last few days, we are one of the largest bilateral humanitarian donors globally. Since 2015, we have provided over £11 billion in humanitarian funding to support the most vulnerable people, including of course a huge focus on women and girls. This year, despite the cuts that have been questioned many times in this House, we are on track to spend £900 million on humanitarian aid. Despite us being the sixth-biggest economy in the world, that represents about the third or fourth-largest contribution of any country.
Mike Veale: Police Conduct Report
My Lords, following an investigation by the Independent Office for Police Conduct, the then acting police and crime commissioner for Cleveland determined that former Chief Constable Mike Veale had a case to answer for gross misconduct. The matter is now subject to a misconduct hearing and it would therefore be inappropriate to comment further while those proceedings remain ongoing.
I congratulate my noble and now right honourable friend, one of the hardest-working Ministers in our House over many years, on becoming a member of Her Majesty’s Most Honourable Privy Council. How could it possibly be right for a disgraced former chief constable deemed, as my noble friend said, to have a case for serious misconduct to answer with a legal hearing pending to be receiving a salary in the region of £100,000 plus expenses from public funds as adviser to the police and crime commissioner for Leicestershire and Rutland—who purports to be a Conservative, which makes the matter even worse? Is there no time limit on starting the legal hearing, which was announced last August?
I thank my noble friend. Not only do I personally feel very honoured, but it is an honour for the House as well. As regards someone being up for investigation and now having a case to answer for alleged misconduct while drawing their salary, someone who is still innocent of misconduct is still able to draw their salary until it is proven otherwise. I can understand my noble friend’s frustration, but that is the case.
My Lords, I congratulate the noble Baroness as well. I remind the House that I have been a police and crime commissioner for Leicestershire. Does the Home Office really have nothing to say regarding the behaviour of Leicestershire’s current police and crime commissioner in bringing in Mr Veale—unvetted, I believe—on his first day in office and continuing to employ him on high remuneration as his chief adviser, even though the local police force was embarrassed and many in Leicestershire are offended? The Home Office is not often shy about giving its opinion. Why is it so shy in this case?
My Lords, I endorse the comments of my noble friend Lord Lexden about the Minister’s work, which has been very valiant during the whole of this difficult case. I think it is generally agreed that Operations Conifer and Midland are now utterly discredited. One appreciates that the Government do not want to intervene in the present conduct inquiries, but can we at least be assured that they are constantly pointing out to the police administration, with which they cannot of course intervene, their expectation that there will be a full calling to account of those who made these absolutely disastrous misjudgments and caused so much unfair discredit to so many hard-working and public-serving people? Can we at least have that assurance so that there is some movement to restore confidence in our otherwise quite excellent police force?
Certainly the current proceedings are evidence that things are at least being taken forward. I appreciate that many noble Lords will feel very disgruntled about this, but several layers of scrutiny have been afforded to both Operations Conifer and Midland. The whole proceedings have been well scrutinised, but I still appreciate the frustrations of the noble Lord and other noble Lords.
My Lords, the Library has informed me that the report has not been made publicly available. Why not? Is it not time to finally remove the unproven stain on the character of distinguished servants of the state and for the Prime Minister, with the support of the leader of the Opposition, to grip the situation and instruct the Cabinet Secretary to take every administrative step to achieve this end?
My Lords, putting this case to one side, as a result of a number of unfortunate incidents there seems to be a general deterioration in trust between the police and the general public. This is an absolute tragedy, because every police officer I have ever met polices entirely for the right reasons and in the public interest. Can my noble friend say what steps she is taking to try to rebuild this level of trust, which is so essential if we are to effectively police?
I wholeheartedly agree with my noble friend that trust has been diminished, certainly in the past couple of years. The death of Sarah Everard exemplified that lack of trust. I hope that getting Dame Elish Angiolini in to do the inquiry into the killing of Sarah Everard, the circumstances surrounding it and the police’s practices will go some way to restoring trust and confidence in the police.
My Lords, can the Minister, now a privy counsellor, give us an update on the IOPC’s examination of Charing Cross police station, where a lot of protesters have now made reports that they were treated badly by the officers there, who also treated women very badly? For example, their names were not released so people did not know whether they were being held there and they were held longer than they needed to be—that sort of thing. Is it possible to have an update?
My Lords, can I take my noble friend back to the Question asked by my noble friend Lord Lexden? I entirely endorse his personal comments about her, but the case of Mr Veale, who appears to have tarnished every office he has held and whose traducing of Edward Heath still remains on the record, really is extremely unsatisfactory. This should be properly investigated. For reasons I do not understand, we have heard constant refusals to have a proper inquiry into Conifer and Midland. We need one. It is not too late to have one now.
I am afraid that I must disappoint my noble friend by telling him that we do not have any plans to commission a review of either the conduct of the investigation into the allegations made against Sir Edward Heath or the findings of that investigation.
My Lords, the Minister has emphasised that there is an ongoing inquiry into the conduct of Mr Veale. Does she accept that, in many areas of public and private life, persons against whom serious allegations are made are suspended from their office, employment or other contributions to public life while an investigation is conducted? Why is that not happening here?
I want to ask my noble, and now right honourable, friend one simple question: will anyone ever be held to account for Operation Conifer? As my noble friend pointed out, it was a grotesque witch hunt against Sir Edward Heath—a public servant of the highest integrity—conducted by someone who is now deemed by the IOPC to have a case to answer for gross misconduct, with a legal hearing pending against him. Will anyone ever be held to account?
My Lords, Operation Conifer has been subjected to extensive scrutiny by its own independent scrutiny panel, two reviews by Operation Hydrant, in September 2016 and September 2017, and a review in January 2017 by HMICFRS. We have talked about the Independent Office for Police Conduct; it has also considered specific allegations relating to the former chief constable.
My Lords, where evidence supports the case for a ban we will act, as we have with a number of plastic items—straws, stirrers, cotton buds—and as we plan to do on further single-use plastic items. The Environment Act enables us to introduce a range of other measures to tackle single-use items, including a deposit-return scheme for drinks containers, extended producer responsibility schemes and charges on any single-use items, regardless of material.
I thank the Minister for that reply, but why are the Government insisting on consulting on every plastic single-use item separately, when the damage to the environment is well known? We have just finished the consultation on plates, cutlery, and balloon sticks, then there is a longer drawn-out process to consult on wet wipes and plastic cups, and I am sure that there will then be a further delay, then a few more items will be investigated. We gave the Government powers in the Environment Act to introduce a comprehensive ban on polluting single-use items, so why are they not dealing with this on a comprehensive basis? It would be hugely popular. Why must it be done item by item over such a long time?
I very much share the frustrations of the noble Baroness about how long some of these things take, but it is worth pointing out that, as she says, we now have the power to ban products which cause environmental pollution and are harmful to human or animal health and harmful to nature more broadly. The bans that have already been introduced, on plastic bags, for example, resulted in a 95% reduction in sales. Straws, stirrers and cotton buds have reduced by similar amounts and there are many more products in the pipeline where the UK Government are very likely to be introducing the necessary bans.
My Lords, I congratulate my noble friend and the Government on going as far as they have. Is part of the difficulty the confusion over the different types of plastics? On 4 March, the Government produced a press release on post-consumer plastic, which includes household plastic and other uses. Would it not be better for this to be disposed of through issues such as energy from waste, so that we were dealing with two problems at the same time: disposing of plastics and feeding into energy for households to use locally?
My Lords, our approach must put the main emphasis on reducing the amount of plastic being created in the first place. There are vast numbers of items that are made of single-use plastic where there is no justification for doing so, especially since we know that the vast majority of them will end up in the environment or managed inappropriately. This must be the focus, but my noble friend makes an important point.
My Lords, the Government’s resources and waste strategy is to eliminate all avoidable plastic waste by 2042, which is laudable but far in the future. The plastics pact for businesses and NGOs has called on all plastics packaging to be reusable, recyclable or compostable by 2025. Will the Minister support this more immediate target for eliminating plastic pollution?
I warmly welcome the work that the pact has done and very much support its ambition. Just a few days ago, the member states of the United Nations Environment Assembly agreed to a historic deal whereby we will now be creating a global treaty to tackle plastic pollution. The UK has championed this for a long time. We co-sponsored the resolution, and the aspiration is for this new treaty to become for plastic what the Montreal protocol was in relation to the ozone layer.
My Lords, while it is important to reduce the production of single-use items, there are some which, for health and safety reasons, should be excluded. These include hypodermic needles, medical and cleaning gloves, and medical dust respirators. However, there are others which could be targeted, such as disposable nappies. What are the Government doing to promote the use of washable, reusable nappies?
My Lords, there is a whole range of plastics, not least disposable nappies, where work must be done. We are currently taking advice in relation to wet wipes, single-use coffee cups, and cigarette filters, almost all of which are made of plastics, although as a smoker, I use biodegradable paper filters; they are just as good and you can drop them on the ground without feeling too bad—or, indeed, you could stop smoking. All these items, and there are others, are within the range of what the Government are looking at in relation to the action that we will be taking in the coming months.
My Lords, the Minister will be pleased that the Scottish Parliament passed legislation banning an extensive list of single-use plastics from being supplied and manufactured in Scotland, which is due to come into force on 1 June this year. Of course, the problem is that, because there is no similar ban in any other part of the United Kingdom, if these items are manufactured, imported or sold in any other part of the UK, they can be supplied in Scotland because of the United Kingdom Internal Market Act 2020. That is likely to happen, and it will undermine the Scottish decision. Not even Northern Ireland, which should be subject to EU regulations because of the Northern Ireland protocol, has implemented this ban. Was it intended that the United Kingdom Internal Market Act would put a cap on the ecological ambitions of the devolved Administrations, or is this an accident? If it is an accident, can we do something about it, please?
My Lords, I am not convinced that the argument follows. We are among the most ambitious countries in the world in terms of where we are heading in relation to single-use plastics. The European Union is also putting a lot of emphasis on reducing unnecessary single-use plastics, as is Scotland. We may be operating in different ways, implementing different rules and using different tools, but we are heading in the same direction, and there is no doubt in my mind that we are moving to an era where the casual use of single-use plastic is coming to an end.
Do the Government intend to have an initiative with the NHS over the use of plastics, given that it is has been estimated that 133,000 tonnes of waste plastic are produced by the NHS each year, which make up 22.7% of its total waste? Some plastics are important for infection control, yet 13.7% of all this waste is plastic film, often used just in packaging, so the approach across the whole NHS needs to be different from that across other aspects of society.
The noble Baroness makes an important point. Single-use plastics that are necessary within the context of delivery of health services are well known and, clearly, they would not be caught up in the measures that the Government are introducing. Beyond those specific items, the same rules would apply in relation to the NHS. I welcome our gradual abandonment of the use of disposable face masks for even the most ludicrous events. The numbers of face masks abandoned around the world defy belief and have come to dwarf some of the plastic pollution caused by things such as stirrers, straws and balloons that we are all obsessed by. I warmly welcome the world gradually dropping the theatrics in relation to those masks.
My Lords, building on the question from the noble Baroness, Lady Jones, about the powers under the Environment Act, the Secretary of State, George Eustice, has said,
“it’s time we left our throwaway culture behind”.
With that in mind and, noting that the Refill Coalition is bringing in plans to replace plastic—or indeed any—containers for washing-up liquid, laundry liquid, shampoo, hand wash, pasta, rice, cereal, seeds, grains, nuts and dried fruits, will the Government consult on every one of those kinds of packaging, or will they simply tell industry and retailers that this has to end by a certain, reasonable date in line with the UN Environment Programme proposals, so that they can have the certainty to plan for that future?
The problem with government is that, sometimes, you cannot just undermine a sector in a way that has a dramatic impact on its business model without offering the necessary respect that comes with a consultation and having thought through the policy properly. Simply banning these items, which, of course, is where I want to end up, would have a massive impact on a number of different businesses. It is right that the Government should tread carefully when it comes to making decisions which impact so directly people’s business models.
Russian Oil and Gas Imports
Private Notice Question
To ask Her Majesty’s Government what plans they have (1) to impose sanctions on the import of gas and oil from Russia, and (2) to encourage (a) coal-fired power generation, and (b) investment in (i) shale gas fracking, and (ii) offshore energy sources.
My Lords, we have imposed the most severe package of sanctions that Russia has ever seen. Although there is currently no ban on Russian oil and gas imports, this is under urgent review. However, the UK is in no way dependent on Russian gas. In 2021, it made up less than 4% of our supply. Most of our gas came from domestic production and reliable suppliers such as Norway. To boost energy security, we need to generate more domestic renewable power.
My Lords, although we all want a cleaner, greener future, surely we have a duty to put the maximum pressure on President Putin when the situation in Ukraine is beyond grim. Should we not therefore develop our own resources—in the North Sea, through fracking and through nuclear power—to guarantee security of supply, which surely must be the first duty of any Government?
I agree with a number of the points my noble friend made. Of course we should put the maximum pressure on Putin because of his appalling actions, and continue to invest in the North Sea for our domestic production. We should also continue to invest in nuclear power and renewables. One point I differ with him on slightly is fracking, which I am afraid does not offer the silver bullet many people think it does.
Not directly. The cheapest and most effective renewable source in the UK is offshore wind, which is why we are continuing to develop that at pace. We already have one of the largest offshore wind sectors in the world. We have a target of considerable extra capacity, moving up to 30 gigawatts by 2030.
Does the Minister agree that, if we think we can solve the current fossil fuel crisis by pretending that the clear and present danger of climate change does not exist, we will simply call down a far greater catastrophe on the world? Does he agree that the answer to the fossil fuel crisis is to invest to get off them as soon as possible, not to burn more of them?
The answer to the high price of oil, gas and fossil fuels is to use less of them. To that extent I agree with the noble Lord. That is why we are generating as much as we possibly can from renewables. That is why we accelerated the contracts for difference round, why we have one of the largest capacities in the world, and why we need to expand it even further.
Is my noble friend Lord Forsyth not entirely right that some very tough short-term measures will have to be taken to help break the Russian monopoly—one part of the measures we need to put pressure on them? Should we not take this opportunity to develop a solid future energy security strategy? Should not a central part of that be to seize the moment to recommit ourselves to rebuilding a strong, low-carbon nuclear sector, as we once had in this country, to meet all contingencies, particularly when disruptions occur, such as Ukraine, or when the wind does not blow?
Indeed. I agree very much with my noble friend, who makes some extremely good points. We need to bear in mind that a relatively small percentage of our supply is from Russia, of both oil and gas; it makes up less than 4%. I totally agree with him regarding nuclear. Indeed, for those noble Lords who are interested, the Nuclear Energy (Financing) Bill is in Grand Committee tomorrow.
My Lords, I have heard the Minister’s response, taking on board in part the point from the noble Lord, Lord Forsyth, and recognise that we live in uncertain times. For clarity, can the Minister reconfirm the Government’s commitment to prioritising the development of renewables and that Ministers are looking to speed this programme up, and further commit to ensuring that the Government will renew measures to protect the poorest in our communities from the worsening impacts of rising energy prices?
I agree in large part with what the noble Lord said. Of course we need to expand our renewable capacity as quickly as possible. We already have record amounts and we need to pursue that. We are introducing contracts for difference rounds every year to maintain the ongoing flow of supply. As the noble Lord is aware, we introduced a £9.1 billion package of support for the poorest households.
My Lords, we need to maintain the maximum possible pressure on Putin, obviously. The biggest problem facing mankind is global warming, which could wipe out humanity within a couple of centuries. That being so, would it not be totally irresponsible to restart coal burning in order to generate electricity when that generates 30 times more units of carbon than renewable and offshore generation?
That is a very wide-ranging question. I think I would disagree with the noble Lord: I think Putin is a bigger threat at the moment to worldwide peace and stability. The important thing to bear in mind with regard to climate change, which is of course an important subject, is the tiny percentage of global warming caused by our emissions in the UK, which are rapidly decreasing. It is something that we need to work on, on a global basis; just eliminating our emissions on our own is really not going to make any difference.
My Lords, I very much agree with the various points already made, but in the light of the Ukrainian crisis, have the Government got serious plans to bring forward and radically increase investment in green hydrogen development? If they do have such plans, will the Minister write to me with the details and put a copy of the letter in the Library?
We have a very ambitious hydrogen strategy and it is perfectly possible that hydrogen will be one element of our campaign to decarbonise the UK economy. We will shortly be moving towards a hydrogen business model and we will attempt to roll out hydrogen production. However, again, no decisions are imminent, and it will be a few years before we know the full potential that hydrogen can offer.
I do not think the noble Baroness is quoting a very good example. The Germans have made a singular mess of much of their policies by phasing out nuclear power, which has resulted in the burning of much more coal. I am not sure that that is an example of what the noble Baroness wants us to follow. We have an excellent plan in this country. We have a much bigger renewable sector than Germany, which puts far too much reliance on gas from Russia and now may well be paying the consequences.
My Lords, the market for oil and gas is global, and therefore the figure that the Minister has cited twice about our dependence being only 4% is entirely irrelevant to what happens to the price of energy in the UK. If there is a shortage of gas in Germany, the gas price goes up globally. The only answer to this is to reduce hydrocarbon use throughout Europe, and therefore reduce the market which the Russians are exploiting.
The noble Lord makes a sensible point. Of course it is an international market. It is usually operated by private companies, and any shortages in Russia will feed through into the UK. It will not affect the price, but it will affect our energy security, which is why I used the fact that only 4% of our gas is Russian. Most of our supply comes from our resources in the North Sea or from Norway. Security of supply is not affected, but the noble Lord is right about international pricing.
Given that the increase in fuel prices for both domestic and commercial use has been very significant—the consequence of which is that the Government are taking hugely increased revenues from the taxes applicable to that fuel—do the Government have any plans to cap or reduce the level of tax charged on fuel in those circumstances, and to redistribute that money for the benefit not just of people at the extreme end of the poverty line but of those seeking to be involved commercially?
I will leave the setting of taxation policies to the Chancellor, but the noble Baroness makes a good point. Of course, we have already announced a record-breaking £9.1 billion package to alleviate some of the worst excesses of the current increases in fuel prices, but I do not want to mislead anyone: this will not solve all of the problem. This is a global crisis and we cannot insulate ourselves completely from international pricing.
My Lords, as the Question put by my noble friend Lord Forsyth of Drumlean indicates, this is an urgent crisis. We do not have time to develop many things but we do have time to stop Russian imports full stop and, although it may be painful, the sooner that is done, the better.
We are looking at this seriously and decisions will be announced shortly but it is important to bear in mind that, while we would all love there to be quick and easy solutions, the building, construction and implementation of energy infrastructure takes many years, sometimes even decades. I am afraid there are no quick solutions to any of this.
My Lords, the remarkable spike in gas prices today indicates a real challenge ahead for gas distribution in this country. To date, the big companies have absorbed the customers of the smaller companies that have gone bankrupt. As things stand, those big companies will themselves come under huge pressure with forward contracts that they cannot cover. What is the department doing, in consultation with the gas companies in this country, to maintain security of supply for the consumers of Great Britain?
A number of companies are indeed under pressure and, unfortunately, we have seen a number exiting the market. I assure the noble Lord that we are in regular contact with all the gas and electricity supply companies; my right honourable friend the Secretary of State meets them regularly. This is indeed an unprecedented crisis but we are closely following events and I can say that, while there is obviously a problem with the price, there is no problem with security of supply.
Yes, I am satisfied with the progress that this Government are making. It is disappointing that previous Governments did not take action on new nuclear urgently; should the noble Lord wish to follow the debate tomorrow, we will be in Grand Committee on the Nuclear Energy (Financing) Bill.
That was indeed the point I made in response to the Question. We have banned Russian vessels but, at the moment, cargo can still be imported, in relatively small quantities, from other vessels. We are in urgent consultation with our allies on whether we can go further.
I understand the attraction of this option but I am afraid that, having looked closely at this, there are some severe environmental problems—we cannot hide this fact—with original fracking operations. Lancashire is not Texas; it is much more heavily populated. Fracking is a relatively unproven technology in the UK. The reality is that it would be many years, if not decades, before we got meaningful quantities of gas out of the ground, even if we could resolve all the environmental problems—and none of that would affect the current price. We would not be producing anywhere near enough gas to affect the high prices in an international market so I am afraid, much as I would love it to be the case, it really is not the silver bullet that people think it is.
Health and Care Bill
Report (3rd Day)
Relevant documents: 15th, 16th and 19th Reports from the Delegated Powers Committee, 9th Report from the Constitution Committee
113: After Clause 80, insert the following new Clause—
“Carers and safe discharge from hospital
(1) This section applies where—(a) a person (“the patient”) is a qualifying hospital patient at a hospital, and(b) the responsible NHS body considers that it is unlikely to be safe to discharge the patient from hospital unless care provided by one or more carers is available to the patient.(2) It is the duty of the responsible NHS body to—(a) consult the patient about their preferences regarding their care following discharge from hospital, and(b) take reasonable steps to identify and consult any carer or potential carer of the patient about to be discharged.(3) The NHS body must consult any carer or potential carer identified under subsection (2) to ascertain—(a) whether the carer is able, and is likely to continue to be able, to provide care for the patient needing care, and(b) whether the carer is willing, and is likely to continue to be willing, to do so.(4) Having consulted the carer, the NHS body must cooperate with the local authority in relation to their duties under the Care Act 2014, the Health and Care Act 2006 and the Children Act 1989.(5) For the purposes of this section—(a) a “qualifying hospital patient” means a person being accommodated at—(i) a health service hospital, or(ii) an independent hospital in pursuance of arrangements made by an NHS body,who is receiving (or who has received or is expected to receive) care.(b) a “carer” means any person, including any child under the age of 18, who provides or intends to provide care in respect of a patient to whom the NHS may provide services, but a person is not to be regarded as a carer if they provide or intend to provide care under or by virtue of a contract, or as voluntary work.”Member’s explanatory statement
This provision retains the principle and duty on a hospital, whether it be an NHS hospital or an independent hospital, to ensure that a patient must be safe to discharge from hospital and mirrors carers’ rights which were established in the Community Care (Delayed Discharges, etc) Act 2003.
My Lords, Amendment 113 focuses on carers and safe discharge for hospital patients. The amendment defines the patient and the carer and is focused on safeguarding the rights of unpaid carers when the person they care for is discharged from hospital. I am grateful for the support of the noble Lord, Lord Young of Cookham, who is sadly unable to be in his place because he is isolating, the noble Baronesses, Lady Meacher and Lady Hollins, and all the other Peers who have expressed it. My thanks go also to Professor Luke Clements, professor of law and social justice at the University of Leeds, for his wise advice on the drafting of this amendment. I am also grateful to the Minister and his officials for the time and effort they have put in to meeting Peers and Carers UK—I declare an interest as its vice-president.
I continue to be amazed at what I am going to say next because, as it stands, the Bill revokes the Community Care (Delayed Discharges etc.) Act 2003, which includes a requirement to consult carers prior to discharge. Thus, for the first time, the rights of unpaid carers will be removed without being replaced by additional or improved rights. Many people, me included, have been fighting to get rights for carers recognised for over 30 years. We first achieved rights through Private Members’ Bills over several Parliaments and under Governments of all colours. No one could have been more delighted than I when these were later enshrined in government legislation such as the delayed discharges Act and the Care Act, but here there is no question of enhancing carers’ rights.
On the contrary, the Government’s own impact assessment of the Bill recognises that carers may be asked to take on additional hours of care, which could mean they have to reduce their hours of work or give up paid work entirely. It states that while the Government anticipate that in some cases
“carers may choose to … There is an expectation that unpaid carers might need to allocate more time to care for patients who are discharged from hospital earlier.”
I should point out that “may choose to” is a late addition to the impact statement. Originally, it said simply “There is an expectation that” carers may allocate more time, with no reference to choice at all.
Perhaps this may remind some of your Lordships that the Secretary of State for Health has said that families must be the first port of call for caring responsibilities. I always found that puzzling, since families always are the first port of call. Whatever reforms we make, the bulk of health and social care will continue to be provided by the so-called informal army of family, friends and neighbours. The contribution they make to the economy is now estimated at £193 billion annually—almost the cost of the NHS itself.
The point of hospital discharge is often the most vulnerable time for patients and carers. Carers UK research shows that more than half of carers were not involved in decisions about discharge, two-thirds were not listened to about their willingness or ability to provide care, and 60% received insufficient support to protect the health either of themselves or of the person being discharged. Anyone who speaks to a carer will hear horror stories about hospital discharge. I am reminded of Norman, a man in his late 70s and a carer for his wife who has multiple disabilities—Norman spoke to a group of your Lordships by Zoom recently. His wife went into hospital for a procedure, which was a relief to him as he himself had been diagnosed with cancer and was having chemotherapy. While he was actually hooked up receiving the chemo, he received a call from the hospital saying that they were discharging his wife. He received no prior notice that she was ready to be discharged. “Okay,” said Norman, “but could you just wait till I get home to receive her?” “No,” was the reply, “she is already in the ambulance on her way home.” Norman’s response was not, “Well, please take her back again,” as I suspect many of us would have been tempted to say, but to ask the oncologist whether the drip that he was on could be speeded up so that he could get home quickly. As it was, he arrived home to find his wife had been left in a bed, frightened and alone. Many of your Lordships will have heard similar stories.
This amendment would place a duty on the NHS to ensure that carers are consulted and to check that they are willing and able to care, as well as ensuring that the patient is fit to be discharged—I emphasise not just medically fit but fit to be at home—and putting the right support in place. It would avoid the experience of another carer, who said, “We knew she was on her way home only when she was on hospital transport. We had to drop everything and rush around to try to get a commode just so she could go to the toilet when she got home.”
The Government suggest that rights in primary legislation will be replaced by statutory guidance. I have been assured of this by the Minister and officials, and I know they are sincere in the belief that this will be more than adequate. But guidance, however strongly worded, is not the same as having concrete rights in legislation that can be quoted and used. I cannot express how disappointed I and all who work with carers are that the Government are for the first time rowing back on the rights of carers, for which we have fought so hard.
With the leave of the House and at his request, I shall quote some of what the noble Lord, Lord Young of Cookham, would have said had he been able to be present. As your Lordships know, he is especially concerned about young carers. He says—
I apologise to your Lordships. I will just say that the noble Lord said it was a “backward step” to leave only guidance.
This is not only morally wrong but very short-sighted. If a discharge is unsatisfactory, the inevitable consequence is readmission—and think how much that costs. The Government believe that the new discharge to assess procedures will deal with discharge problems, but carers report that discharge to assess takes place as the discharge itself is happening, with no chance to order suitable devices, equipment or changes to the home, let alone to consult the carer. I must point out that two earlier versions of the discharge to assess guidance did not even mention carers and did so only after pressure from Carers UK.
I am sorry to say that the Government and the NHS have form on ignoring carers. They were not mentioned in the health and care White Paper, which set out the foundations for the Bill and only marginally in the integration White Paper, yet I have never heard any Minister say anything other than that carers are essential, that they must be valued and respected and that we owe them a debt of gratitude. Similarly, I have always heard Ministers and officials agree that carers must be supported to combine paid work with caring to help them financially now and to avoid future poverty, yet here we are with a Bill which states baldly that carers must allocate more time, requiring a reduction in work hours and associated financial costs. I asked the Minister at Second Reading and I ask him again: does he expect carers to go on benefits in order to provide care?
Carers and patients need this amendment badly, and I hope the Minister understands that. I have no doubt of his good intention, but I fear for the plight of carers and patients if he does not accept the amendment, which is essential if we are to ensure that all carers, including young carers, are not overlooked in the hospital discharge process but retain concrete rights and recognition in primary legislation. I beg to move.
My Lords, I declare my interest as a vice-president of the Local Government Association. I will speak very briefly from the Liberal Democrat Benches to offer our support for both the amendments in this group.
The amendment tabled by the noble Baroness, Lady Pitkeathley, Amendment 113, says that unpaid carers, including those under 18, must be properly consulted by the NHS to ensure that they are able to provide the care needed to keep patients safe. In Committee—and, more recently, at the excellent and moving round table with family carers organised by Carers UK, about which the noble Baroness, Lady Pitkeathley, just spoke—we heard evidence of hospitals discharging patients before assessments had been completed and before carers had even been told. The burden that this places on carers is totally unacceptable and unsafe. Worse still—and unsurprisingly—the home arrangements too often break down when family and unpaid carers are not a full part of the consultation process. We support the noble Baroness, Lady Pitkeathley, in this vital amendment.
The second amendment, Amendment 144, to which I have added my name, was tabled by the noble Baroness, Lady Wheeler. The amendment ensures that there are always proper social care needs assessments to ensure that both the family and unpaid carers are consulted, along with the relevant local authority; and that ICBs must have an agreement in place with the relevant parties to ensure that vulnerable people are not discharged without the right support. Some carers are themselves vulnerable people, and we need to make sure that all protections are in place for them too.
Equally importantly, it ensures reporting by the relevant authorities back to the ICB so that it can monitor discharge effectiveness. It says—as a bit of stick to go with the other carrot parts—that the ICB must pay for any
“additional costs borne by a local authority in caring for a patient whilst carrying out social care needs assessments”,
in the event that the patient has been discharged before this was completed.
There are 1.4 million unpaid carers who save the state just under £3 billion a year—and they need more than guidance. Both of these amendments will ensure that the patient and their unpaid carer are assessed and supported properly, and that the key stakeholders—the NHS, the relevant local authority and the ICB—must work together to make this happen.
My Lords, I rise to support Amendment 113. I applaud the noble Baroness, Lady Pitkeathley, both on this amendment and on the years and years of commitment she has given to the support of carers.
It is extraordinary what this Government are prepared to do in this Bill. In revoking the Community Care (Delayed Discharges etc.) Act 2003, they are abolishing the “safe to discharge” test, which requires processes to have been followed to ensure that appropriate and adequate care is, or will be, in place for a patient’s discharge from hospital. The Government are proposing that carers’ rights in primary legislation should be put in statutory guidance instead.
As a member of the Delegated Powers and Regulatory Reform Committee, I am very conscious that, under this Government, secondary or delegated legislation is used more and more to concentrate power in the hands of Ministers rather than in Parliament. The only possible reason for the Government to remove carers’ rights from the Bill, and to put them into secondary legislation, is to weaken those rights. Can the Minister give any reassurance on that point? It is a very important question.
A number of us recently met with a group of so-called adult carers—teenagers and adults—and also with a group of young carers. Both of those experiences were humbling from my point of view. I will mention a couple of points that came up. One teenager rather casually mentioned that she had begun being a carer at the age of three. This is unbelievable, is it not? I forgot to ask her what she actually had to do at the age of three; it is difficult to imagine. But, whatever she had to do, the idea that she somehow had a sense of responsibility at that age is truly alarming.
The other memorable moment was when a teenager was asked, “What is the most difficult thing for you, or the biggest problem that you have as a carer?” I thought she would say that she did not have any time to play with her friends or that she had to do all sorts of boring and horrible jobs that her friends do not. But no, she did not say any of that; what she actually said was, “The biggest problem I have is that the hospital staff won’t tell me how much medication my mum needs. They say they’ve got to talk to my mum, but that’s impossible.” The selflessness implied in that is just completely extraordinary—and of course there were lots of other incredible points.
If these young carers are not consulted before their dependent relative is discharged from hospital, they may be at school or in the middle of a hockey match—it is just unimaginable that this requirement should be in any way weakened. I ask the Minister to take extreme care on this issue when going back and considering the Bill; only then can we be sure that patients are not just medically fit to be discharged from hospital, as the noble Baroness, Lady Pitkeathley, said, but are safe to be discharged—that is, carers or others are there to look after them.
BASW rightly points out that revoking a local authority’s Care Act duty to integrate care and support provision with health provision at the time of the key decision about where a person should be discharged to from hospital undermines the model of integration between social and health care staff—surely the absolute opposite of the whole objective of the Bill. I understand that discharge to assess is probably reasonable for medium and long-term care planning. However, an assess to discharge approach is even more important and should be done in hospital, from the date of admission to hospital. Where is that commitment in the Bill? I look forward to the Minister’s response.
My Lords, I am very pleased to support the noble Baroness’s amendment, and my thanks go to Carers UK for its briefing. I declare an interest as a family parent carer of an adult disabled man.
Earlier in Report, community rehabilitation was debated, and Amendment 113 complements this by acknowledging the vital role that carers play in supporting people’s discharge from hospital and promoting a community-based model of care. In Committee, I promoted an amendment that sought to define carers within the Bill, as they are mentioned in three clauses. This amendment incorporates that approach, to ensure that parent and young carers are not overlooked. I cannot stress sufficiently strongly how important rights in primary legislation are for carers, who often have all the responsibility for caring but very few of the rights. They are often experts in how people like to be treated, and they can be experts in a condition that professionals may have little detailed knowledge of.
Carers UK heard from carers directly about their experiences of being shut out of the system as part of the discharge to assess process. For new carers, it was often described as bewildering; promises to contact them just did not materialise. Carers UK research found that carers were not consulted and were not given information and advice or the support that they needed to care safely and well for the person who had been discharged. For several of these people, this involved admission to longer-term intensive support or, sadly, readmission back into hospital again. The amendment would have provided the checks and balances needed to ensure that this did not happen.
Carer experience surveys are also important, and they found that carers’ experiences of accessing health and care services for themselves have either plateaued or deteriorated in the recent past. Carers are twice as likely to have ill health as a result of caring; too often, they are overlooked in policy and practice in relation to health services. This is particularly true for parents of disabled children and for young carers. The work that they do has invaluable medical and economic benefit, often at the expense of their own well-being. I therefore urge the Minister to accept the amendment.
My Lords, I strongly support the two amendments in this group.
In Committee, I spoke on hospital discharge, focusing particularly on carers who are working. As the noble Baroness, Lady Pitkeathley, said, until very recently the impact assessment talked about an expectation that carers would have to provide more care. It said:
“There is an expectation that unpaid carers might need to allocate more time to care for patients who are discharged from hospital earlier. For some, this may result in a … reduction in work hours and associated financial costs.”
While Ministers have talked of carers being able to choose whether or not they give up work to care, we have heard that many have not been given a choice, been consulted or been given the right information to care safely and well. We know that, on occasions, carers do make an informed choice to take on more care, which is great, but we have heard far more stories where the system is working against carers. Indeed, the research from Carers UK shows that two-thirds did not feel listened to about their willingness and ability to care by healthcare professionals.
I am particularly concerned about carers who are trying to juggle working and caring. They may be willing to take on and provide more care, but they are juggling work as well. The impact assessment makes an assumption that, when carers give up work, it will be a short-term thing because the care provided will not be significant. Yet the stories we have heard from carers show that, too often, that is not the case because patients with significant needs are discharged into the community without sufficient support.
To conclude, this is not a minor issue. It affects millions of people, and it particularly affects women. There have been 2.8 million more carers juggling work and care during the pandemic, and many have had to give up work. We also need to remind ourselves that women are more likely to be reducing their working hours to juggle work and care, and they are a group that is already often under-pensioned.
My Lords, we on these Benches, as has been said, support both amendments in this group. I just ask the Minister one question. We have heard about people who might have to give up work or reduce their hours in order to care. I do not know if the Minister has ever tried to apply for benefits, but it takes a while, and it certainly takes a while for the benefits to turn up in somebody’s bank account. Given that situation, will the Minister talk to the relevant department to see if a fast-track process could be put in place for people in that position?
My Lords, I fully endorse my noble friend Lady Pitkeathley’s excellent speech and the other contributions on Amendment 113. The amendment focuses on three fundamental issues for unpaid carers: being fully consulted and involved before their loved one is discharged from hospital; having a proper assessment both of their own needs and of those who they care for; and clinging on to the few concrete rights they have under the health and care and family legislation that refers to and defines carers, including parent and young carers, and the right of all carers to have a carers’ assessment.
I also thank the noble Baroness, Lady Brinton, for adding her name to my Amendment 144 and for her usual forensic analysis of how the discharge to assess approach is working and its impact on both carers and their loved ones being discharged from hospital. I spoke on this amendment in Committee, but the noble Baroness has underlined the key points and I will not therefore press my amendment today. We can instead concentrate on showing strong support from across the House for carers and for Amendment 113.
Speakers made this support very clear in Committee. At the very least, we could have hoped that this would lead to a commitment from the Government to reinstate the carers’ rights that the Bill deletes and to ensure that carers are consulted before the partner, husband, relative or friend they care for is discharged from hospital, as per their current entitlement under the 2003 delayed discharges Act. Instead, there have been no reassurances or movement in these crucial areas, despite some helpful meetings with the Minister. As my noble friend Lady Pitkeathley points out, we are once again having to defend existing carers’ rights rather than working to enhance them to recognise the worth of carers and reflect the vital role that they play.
If the Minister was hoping that his recent letter and the accompanying updated draft guidance on discharge to assess would address the deep concern and frustration felt by carers, then he knows today that this has not worked. The promise of statutory guidance, and of carers being able to undertake judicial review if it is breached, is not the same as legal rights. In reality, how many carers would be able to go down the judicial review route? The Government just do not seem to understand how deeply ignored, undervalued and unrecognised carers feel.
We should remember, on discharge to assess, that the evidence from key stakeholders to the Commons committee dealing with the Bill clearly showed a very mixed experience of how the approach was working. In some areas, the perennial and disruptive issues around delayed transfers have eased and it is working relatively well, whereas in others, there were calls for much tougher safeguards or for the process to be ended altogether. The Government need to recognise that the system is in its early days but that, as we have heard, the horror discharge stories are happening now—and all too often, as we see from the briefings from Carers UK.
In his response, the Minister needs to reassure the House about the action that the Government are taking now to ensure that hospitals involve and consult carers about arrangements before discharge of patients. I hope that he will also accept Amendment 113 and fully recognise that carers’ existing rights must be reinstated in the Bill.
My Lords, I thank all noble Lords who have spoken and particularly thank the noble Baroness, Lady Pitkeathley, for her continuing championing of carers.
Discharging people as soon as they are clinically ready is increasingly recognised as the most effective way to support better outcomes. The evidence shows that the “discharge to assess” approach reduces time spent in a hospital bed and supports people to remain independent at home wherever possible. Although the hospital discharge clause does not mandate discharge to assess, the Government are supportive of local areas that choose to implement this best practice model. We believe that carrying out long-term needs assessments at a point of optimum recovery leads to a more accurate evaluation of people’s abilities and needs and more appropriate care packages. Many people discharged from hospital require longer than two weeks to recover. Requiring social care needs assessments to be completed within two weeks of discharge would not necessarily be in the patient’s best interests.
I understand that noble Lords are concerned about safe discharge from hospital and safeguards for patients and carers. However, relevant NHS bodies are expected to ensure that patients’ health needs are met safely in hospital and in the community. Local authorities also have duties to assess patients’ and carers’ needs and, where relevant, ensure that appropriate support is put in place for them. In addition, the CQC monitors, inspects and regulates services to make sure that they meet the fundamental standards of quality and safety, which are set out in legislation.
The Government do not believe that these amendments are in the best interests of either carers or patients. They would create new burdens on NHS bodies and local authorities, and Amendment 144 would create new penalties for local authorities for failing to carry out assessments within a specified timeframe. In doing so, the amendments would undermine the entire purpose of Clause 80 and hinder the ambition, shared across the health system and by Members of this House, to ensure that people are discharged in a safe and timely manner. The creation of significant bureaucracy between local authorities and the NHS risks damaging relationships and would go against the spirit of integrated working that this Bill seeks to support. We agree, however, that accountability and transparency are key to ensuring that local systems deliver high-quality and safe discharge services, which is why we welcome the fact that NHS England now publishes hospital discharge data.
Additionally, a duty on NHS bodies and local authorities to co-operate with one another is already set out in Section 82 of the NHS Act 2006. To specify how this duty will apply to hospital discharge, we are co-producing guidance with organisations including Carers UK, the Carers Trust and Barnardo’s. This will set a clear expectation that, where appropriate, unpaid carers should be consulted during the discharge process. As noble Lords have acknowledged, this guidance will be statutory; NHS bodies and local authorities will therefore be required to have regard to it or risk claims for judicial review potentially being brought against them. We agree that, where we can do more to “think carer” across the NHS, we should. With this in mind, we can commit that we will consult with the public, staff and carers on including a stronger reference to the role and regard of unpaid carers in the NHS constitution, for which a review will be launched this year.
I am also mindful of the specific concerns that have been expressed in relation to young carers. As well as using the guidance to include a much broader definition of carers than that set out in Schedule 3 to the Care Act, I can inform the House that the new Explanatory Notes for the Bill provide clarity that young carers and parent carers are included within the everyday definition.
In response to a number of noble Lords’ questions, I repeat what I said earlier: our new guidance includes a broader definition of carers than Schedule 3 to the Care Act, which applied only to adult carers of patients requiring a long-term needs assessment before discharge. Adult carers’ rights to an assessment of their own needs, under Section 10 of the Care Act, and young carers’ rights, including those as part of the Children Act, remain unchanged under the proposed hospital discharge arrangements.
We believe that statutory guidance is more appropriate here. At the moment, current guidance is not statutory; this will be statutory. Where a young carer is identified, or staff have concerns, the local authority should be notified. Local authorities must then carry out a needs assessment if it appears that the young carer needs support. We are not imposing new duties on local authorities; the existing legislative duties placed on local authorities to assess and meet patients’ and carers’ eligible needs remain unchanged.
I recognise the good intentions behind Amendments 113 and 144, but we believe they would have the effect of undermining the ability of local areas to adopt best practice for hospital discharge. I am not confident when I say this, but I hope that, having heard what I have said, noble Lords may feel able not to press their amendments when reached.
My Lords, I thank all noble Lords who have spoken and the Minister for his responses, particularly about consultation and about broader definitions and identification of carers. I was a little puzzled when he mentioned transparency, since the latest updated version of the impact assessment says:
“The level of support required as well as the associated impact on work hours and salary would vary significantly case-by-case and the impact on unpaid carers is difficult to assess. We are therefore unable to quantify the impact on unpaid carers at this stage.”
I am very concerned that, if we cannot quantify the impact on carers, we cannot really do anything to support them.
The problem with guidance, good practice guidance or statutory guidance, is that we have been here before. I have seen other bits of guidance—the identification of carers by GPs, breaks for carers—I have seen those bits of guidance fall away when another priority takes over. Therefore, I am very concerned that we need to have the rights of carers enshrined in primary legislation, and I wish to test the opinion of the House.
114: After Clause 80, insert the following new Clause—
(1) Within six months of the passing of this Act the Secretary of State must establish a review to consider and report on social prescribing and other creative health interventions, including—(a) the existing provision, quality and effectiveness of social prescribing and other creative health interventions,(b) the evidence base and research requirements,(c) the benefits in terms of preventing ill health and aiding recovery,(d) the impact on health inequalities, social value and communities,(e) barriers to innovation,(f) sustainability,(g) means to integrate creative health with other approaches to health care and social care, and(h) the potential to extend and improve creative health provision, including—(ii) the costs and benefits of doing so, and(iii) the resources and actions needed to realise this potential.(2) The Secretary of State must appoint as Chair and members of the reviewing committee individuals who appear to the Secretary of State likely to have an informed and independent view of the relevant issues. (3) The review must consult—(a) creative health practitioners,(b) people with lived experience of social prescribing and other creative health interventions,(c) charities working in the field of creative health,(d) the National Academy for Social Prescribing,(e) the Office for Health Improvement and Disparities,(f) Integrated Care Partnerships,(g) Royal Colleges,(h) NHS Providers,(i) the NHS Confederation,(j) Health Education England,(k) the Local Government Association,(l) social care providers,(m) Research Councils,(n) Academic Health Science Networks, and(o) others that the Chair of the review considers appropriate.(4) The review must make recommendations to the Secretary of State on the topics described in subsection (1).(5) The report of the review must be published within 18 months of the passing of this Act.(6) Within three months of receiving the report the Secretary of State must lay before Parliament a statement specifying how he or she intends to implement the recommendations of the review, including timescales and budget.”
My Lords, I will speak to only Amendment 114, the proposed new clause on creative health. While I fully support Amendment 184ZB in the name of the noble Baroness, Lady Greengross, in view of the pressures of time today, I will not add to what I said on that subject in Committee. I am grateful to the noble Lords who have added their names to my amendment.
The term “creative health” denotes a range of non-clinical approaches to healthcare. These include working with cultural, natural and other community assets to effect a radical improvement of people’s experience at any stage in the life course. People receive expert support to engage creatively with, for example, the arts, crafts, museums, heritage and the natural world. There is a body of powerful evidence for the benefits of creative health, set out for example in the 2017 Creative Health report of the APPG on Arts, Health and Wellbeing and the World Health Organization Europe’s scoping review of 2019. Tapping into their own and others’ creativity has significant benefits for people in relation to a range of mental and physical health conditions, mitigating for example the distressing impacts of loneliness, anxiety, depression and dementia, as well as addictive behaviours and obesity. Health and well-being in social care settings also benefit significantly from creative health interventions. I detailed some of these benefits in speeches in Committee.
In the NHS long-term plan, the Government have already recognised social prescribing, and the National Academy for Social Prescribing has been established and made encouraging progress. With the establishment of the integrated care systems through the Bill, it is time now to examine a wider, systemic application of creative health approaches. In the new clause, I propose that the Secretary of State commissions a thorough review of the potential to integrate creative health fully within the new structures and the modern orthodoxies of health and social care.
I am sure Ministers will recognise the ways creative health can support them in their agendas. We know that creative health can help significantly with some of the most pressing, intractable and expensive problems in long-term health, including mental illness and obesity. It can reduce demand pressures on GPs, hospitals and pharmacological budgets. When adopted to support people working in the NHS and social care, it reduces staff turnover and losses. At very little cost it can support the prevention agenda, enabling people to have the confidence to take responsibility for their own health, and building resilience against ill health. Striking results are in evidence from creative health programmes in deprived communities such as Blyth and Grimsby. In such communities, through building confidence, energy, co-production, relatedness and social capital, creative health can prepare the ground to reduce health inequalities and improve productivity, serving the place-making and levelling-up agendas. So much more can be achieved if we develop creative health across the country.
These are the reasons why I believe it would be appropriate for the Government to set up the review described in the proposed new clause. If the Minister tells us today at the Dispatch Box that they will do so, we shall not need to legislate. I beg to move.
My Lords, I have added my name to the amendment from the noble Lord, Lord Howarth. He has made very powerful arguments, and I will add only three quick points.
First, I congratulate the noble Lord on the way he has championed creative health throughout the Bill, not just on this amendment, as well as the health impact of creative activity and beginning to move this into the mainstream.
Secondly, I have talked to a number of GPs about this, and they talked to me about the benefits they have observed: for example, of singing for respiratory health, of dancing for exercise and of gardening for contact with nature. Most involve some social engagement and all give meaning and purpose to life. For all these things there is some evidence base to show their impact on health. However, as the noble Lord, Lord Winston, said in Committee, we do not yet have decent evidence of the impact of specific creative health activities or of when and where they are most appropriately used. That is why it is very useful that the review specifically sets out to understand how and when specific creative activities impact on health and searches for the evidence and research requirements that will make this whole new approach as vital as it can be.
My third point is very simple. Throughout this whole process, it has been evident that we are reaching for new understandings of health from those that we perhaps had 10 or 20 years ago and certainly in the last century: an understanding that we need to pay great attention to healthcare and health services, an understanding that we need to pay a great deal of attention to prevention—by which I mean tackling the causes of ill-health—but also an understanding that we need to pay attention to the causes of health and the creation of health. That is another reason why this is such an important amendment. I hope the Government will look on it favourably.
My Lords, I will speak very briefly to these two amendments: 114 and 184ZB. The amendment of the noble Lord, Lord Howarth, would require the Secretary of State to review and commission a report on social prescribing and other creative health interventions which have already been outlined. My Amendment 184ZB follows on from the discussion in Committee, when the Government agreed to include social prescribing as part of the overall dementia plan, and I am very pleased about that.
In the Committee debate, the noble Lord, Lord Watson, cited a study that cast some doubt on the merits of social prescribing. Briefly, I refer the House to the research conducted by the Global Brain Health Institute, which showed that lifestyle interventions, including art and music, can reduce dementia risk by up to one-third—that is a huge proportion. We have real-life studies such as that of Chris Norris, a 67 year-old man who was diagnosed, aged 58, with frontotemporal dementia in December 2012. Musical interventions have slowed the advance of his dementia. There are plenty of other real-life examples of this which I would be very happy to share with any Member of the House or, indeed, the Government.
The Government have already made commitments in this area, so I will not take up any more of the House’s time. However, I ask the Government to give serious consideration to Amendment 114 moved by the noble Lord, Lord Howarth, as this could make a huge difference to many people’s lives.
My Lords, I rise to speak to Amendment 114 in the absence of my right reverend friend the Bishop of London, who is having to self-isolate due to having tested positive for Covid—which seems to be a bit of a theme of the first two amendments.
Members of the House will know that my noble friend is very involved, and was very involved in Committee, in speaking about health inequalities. Today, we want to share and highlight the strength of social prescribing and especially the role of faith organisations in helping to deliver this. There is evidence from the All-Party Parliamentary Group on Arts, Health and Wellbeing and the National Academy for Social Prescribing. But everyone who sits on these Benches would be able to tell you stories of where faith communities and local charities aid and assist with health improvements through activities which happen through them. Through cultural, creative, art, nature—all sorts of—interventions, people find health relief and are moved forward in improving their health.
My right reverend friend the Bishop of London herself runs a health inequalities action group, which she shares with six different faith leaders, healthcare workers and people with lived experience of health inequalities. They all highlight the role of faith organisations as legitimate community assets in delivering social prescription. An example is Art is Freedom, an art exhibition which features the work of survivors of modern slavery, curated by the crisis charity Hestia, which works closely with the Salvation Army. Not very far away from here, in Hackney, some churches run an intervention called Psalms & Stretches—a meditative form of gentle exercise which uses breathing, stretching and strengthening.
There is growing knowledge among multifaith groups—of all faiths—and volunteer organisations of informally doing work to reduce health and social inequalities, so our ask is simply that local communities are included in the solutions towards personal and community health. Civil society and all the people and groups that make it up are doing work that is worth learning from, and we need to consult them, as is mentioned in subsection (3) of the new clause proposed by the amendment. Alongside the professionals, they have insights to offer, so I hope that the Minister will consider the amendment and join us in creatively tackling health inequalities and improving population health through social prescribing.
My Lords, I warmly but very briefly support these proposed innovations in fortifying and enhancing health, not least in their application to the treatment of dementia. Will the Minister consider the work of Arts 4 Dementia, whose aim is empowerment through artistic stimulation, and which promotes social prescribing of arts and well-being activity at the onset of dementia, including through its seminal report, A.R.T.S. for Brain Health?
My Lords, I rise briefly to offer support from the Green group for both these amendments. In Committee, I spoke extensively on the issues around creative health, and I will not repeat any of that. I just note that, looking at the Government’s response, I get no sense that they have got the point that this is not an additional “nice to have”—something that is done after you have done the medical stuff—this has to be a core part of allowing people to get well again, and keeping people well.
On Amendment 184ZB, it is interesting that the Covid pandemic has seen a really large increase in private medical provision, such as testing on our high streets, et cetera. Now that they are there, those businesses will be looking out for different procedures to keep them going, and it is really important that we have full transparency about the advice that people are getting at those kinds of places.
My Lords, I say very briefly that I hope the Government will look favourably on this amendment from the noble Lord, Lord Howarth, and others. I hope that they will build into a review an assessment of the cost efficacy because as well as all the positive aspects that we have heard about, we must remember that, if you can decrease medication prescribing, you will decrease not only costs but adverse side-effects, which also have a cost. All these initiatives tackle the problem of loneliness, isolation and not having contact with other people—people who may be able to empathise with the way that you feel about your condition when you are undertaking a common activity with them. That can become particularly important for the psychological well-being of patients as well as their physical improvement.
My Lords, I congratulate my noble friend Lord Howarth on bringing this subject before your Lordships’ House again. I am grateful to noble Lords from all sides of the House for providing their support for embedding the conditions and opportunities for art, creativity and culture in improving public health. These amendments provide something of a focus for action and I hope will be regarded seriously as such.
We know that the practices relating to creative health can be very effective and good value for money. Some 20% to 30% of all visits to the doctor are for non-medical reasons; for example, social isolation or loneliness. Therefore, the potential that we have in the United Kingdom is huge. Indeed, evaluation of the Arts on Prescription scheme suggested an average return of £2.30 for every £1 spent.
These amendments support the idea that art-based approaches can help people to stay well, recover more quickly, manage long-term conditions and experience a better quality of life. I hope that the Minister will be able to take these amendments on board.
My Lords, if I may, I will introduce a slightly discordant note, seeing as my name has been mentioned. I did not intend to speak, but I do think we need to be a little cautious about all this. I congratulate deeply the noble Baroness, Lady Greengross, on her remarkable work in this area, and nobody would doubt for a moment that everybody here is speaking in very good faith and for the best of purposes.
However, as medical practitioners, we must say that the placebo effect is very powerful and can cure people or improve their health in all sorts of ways and with all kinds of activities, not only dementia. Feeling well is not a simple matter. One concern is that we might spend much more money than we expect on these activities, without coming to the gist of why and whether they work, rather than something that substitutes for them.
I remind the House of one thing. For many decades, the health service supported homeopathy. Homeopathy—like cures like—has been widely used across the world and many people have great faith in it. There is actually no evidence at all that it has any genuine medical or chemical benefit; it is probably essentially a placebo effect. I am not suggesting for a moment that we should not look at exercise, music and all the other things, but I implore the Government; if we do this on the health service, there is a duty to ensure that research is done as well, because we must have a health service that looks at evidence-based medicine. That is fundamentally important.
My Lords, I thank the noble Lord, Lord Howarth, for initiating this debate, and for the work he has done on this issue.
A common theme runs through the comments of noble Lords. The noble Lord, Lord Winston, at the end, talked about evidence and evaluation informing government policy. I hope that we can all agree on that. With regard to Amendment 114, as part of the Government’s plans to roll out social prescribing across the NHS in England, a large evaluation has been commissioned by NHS England and NHS Improvement, through the National Institute for Health Research, which will evaluate many of the points raised. It will seek to find out how social prescribing services operate, how well they work, who does and does not use them, whether they are of benefit to people and a good use of NHS resources, and how cost effective the interventions are. The research will benefit patients by identifying how link worker services can be developed further. It will also study how to help people access social prescribing services and use them effectively, and how to ensure that everyone has access to them, no matter where they live or who they are. Importantly, it will also evaluate the economic sustainability and capacity of social prescribing services.
Furthermore, as part of the cross-government project to prevent and tackle mental ill-health through green social prescribing, another large evaluation has been commissioned to assess models, processes, outcomes and value-for-money of green social prescribing, to inform the scale-up of green social prescribing across England. We are already embedding social prescribing in current non-statutory integrated care systems. In September 2021, NHS England and NHS Improvement published the ICS Implementation Guidance on Partnerships with the Voluntary, Community and Social Enterprise Sector, which outlines the importance of the voluntary, community and social enterprise sector as a key strategic partner in ICSs and provides guidance on how sector partnerships should be embedded in how the ICS operates. This will apply to ICBs in the future, following the successful passage of the Bill. It also describes the importance of embedding social prescribing services, which provide the bridge between health and community by connecting people to local activities and services for practical and emotional support.
Turning to Amendment 184BZ, as of December 2021, there were 1,803 additional social prescribing link full-time equivalent workers in place, and more than 826,000 referrals to social prescribing through NHS primary care. This will make us well placed to reach the target set out in the NHS Long Term Plan of 900,000 referrals by 2023-24 well ahead of time—and this is in addition to other social prescribing schemes across the NHS, local authorities and the voluntary, community and social enterprise sector. Furthermore, NHS England, the National Academy for Social Prescribing and the department worked closely with Music for Dementia to facilitate a series of webinars on creative health and on the publication of guidance for social prescribing link workers and for social workers on music prescriptions for those with dementia.
We will also set out a new dementia strategy later this year. We are working with stakeholders, including people living with dementia, and their carers, and we will be looking at how we can improve the lived experience of dementia. This will include a focus on promoting personalised and integrated approaches to health and care. For some individuals this may include the use of music and arts-based interventions.
The Government are already putting substantial resources into social prescribing. I therefore hope that the noble Lord will feel able to withdraw his amendment.
My Lords, I am most grateful to noble Lords from all parts of the House who have supported this proposed new clause, whether they have spoken today or, in the interests of enabling the House to make progress with other important business, refrained from speaking.
I invite my noble friend Lord Winston to study the research and evidence that is already available. The proposed review would, of course, consult with the research councils, a number of which are also engaged in this field of research, commissioning important work.
I say to the Minister that of course I am glad the National Institute for Health Research is already considering social prescribing, but I point out that creative health goes beyond that and embraces a range of other important and proven approaches. Of course, the review would look at a whole range of other issues as well. Her particular focus on social prescribing, important as it is, neglects to address the full range of relevant considerations.
That being so, I am sorry that Ministers have not seen fit to take the lead in establishing the review proposed in the new clause. They are missing an opportunity to act in the interests of the health and well-being of our society. That being so, the National Centre for Creative Health, which I chair, will look for resources to enable us to lead the review ourselves. We will still, of course, want to engage with government and NHS England. I hope they will see value in that. In due course, we will make recommendations as to how to develop creative health approaches on a national scale, and we will seek to resume dialogue with Ministers. I beg leave to withdraw the amendment.
Amendment 114 withdrawn.
Clause 91: Relevant bodies and Special Health Authorities
Amendment 115 not moved.
Clause 92: Power to transfer functions between bodies
116: Clause 92, page 86, line 30, at end insert—
“(3A) Regulations under this section may not transfer a function as defined in Part 9 of the Health and Social Care Act 2012.”Member’s explanatory statement
Part 9, Chapter 2 of the Health and Social Care Act 2012 lays out the safe haven for patient data across health and social care, required for national statistics, for commissioning, regulatory and research purposes, and for patient care. The amendment seeks to keep these statutory protections in place and ensure that NHS England do not take on this responsibility because of a potential conflict of interest in their role.
Amendment 117 not moved.
Clause 93: Power to provide for exercise of functions of Secretary of State
Amendment 118 not moved.
Clause 94: Scope of powers
Amendment 119 not moved.
Clause 95: Transfer schemes in connection with regulations
Amendment 120 not moved.
Clause 96: Transfer schemes: taxation
Amendment 121 not moved.
Clause 97: Consent and consultation
Amendment 122 not moved.
Clause 98: Establishment of the HSSIB
122A: Clause 98, leave out Clause 98
Member’s explanatory statement
This amendment, and other amendments in the name of Lord Etherton to Part 4, will remove the provisions concerning the Health Services Safety Investigations Body.
The amendments in this group that are in my name would remove Part 4 in Schedules 13 to 15 of the Bill, all relating to HSSIB. I am very grateful to the Minister and the Bill team for their engagement with me and other Members of the House on these amendments. An alternative, narrower amendment—Amendment 124 in the name of the noble Lord, Lord Hunt of Kings Heath—would simply remove the permission of HSSIB to disclose protected material to coroners.
The basis for these amendments can be stated in four words: it will not work. The safe space within which HSSIB is intended to operate cannot work because, under the provisions of the Bill, HSSIB responds to specific incidents which have, or may have, implications for the safety of patients. Those same incidents may be the subject of an inquest, and senior coroners are entitled under Schedule 14 to require the disclosure by HSSIB of protected material if it is relevant to the investigation being undertaken by the coroner. Once the coroner has that material, he or she is in practice bound to disclose it at the inquest, and the High Court will inevitably order such disclosure if it is relevant to one or more of the questions that the inquest is required by statute to resolve—in particular, in the present context, if it is relevant to deciding how the deceased died. That is because, in the words of a leading Court of Appeal case, the duty of the coroner is
“to ensure that the relevant facts are fully, fairly and fearlessly investigated”
“are exposed to public scrutiny”.
Article 2 of the European Convention on Human rights does not add materially to the intensity of that investigatory duty of coroners which already exists under our domestic law. The materiality of Article 2 is only that it imposes the obligation not merely to decide by what means the deceased came to his or her death but in what circumstances.
I am very sceptical that coroners need protected material from HSSIB since they have managed perfectly well without any such right of access to similar material held by the PHSO since the PHSO was established under its founding statutes of 1967 and 1993. Be that as it may, my focus today is on what the senior coroner must do when in receipt of protected material from HSSIB. In short, the material must be disclosed by the coroner.
Although an inquest is in legal terms an inquisitorial process, the ascertainment of the relevant facts is often, as many members of the House will know, highly contentious. Those who have been designated interested persons by the coroner, who include a wide range of family members, may cross-examine witnesses either in person or by representatives. It is inconceivable that a coroner could keep secret from interested persons protected material obtained by the coroner from HSSIB which is relevant to the matters that have to be decided by the inquest. This may have very serious implications for those who have given evidence to HSSIB which is deployed in the inquest, including the possibility of a conclusion of unlawful killing by gross negligence manslaughter.
No medical practitioner could possibly feel confident that, in giving evidence to HSSIB, it is being given in a safe space in view of the need for public disclosure of such evidence by coroners if it comes into their hands and is relevant to the inquest. I beg to move.
My Lords, I have put my name to the amendments tabled by the noble and learned Lord and have tabled amendments of my own. As the noble and learned Lord said, his amendments simply take out the HSSIB provisions from the Bill, whereas mine take out the reference to senior coroners.
I think we are all united in supporting the concept of HSSIB improving safety in the health service. A stand-alone Bill in 2019 had a Second Reading in which we were beginning to get to grips with some of the issues around the construct of HSSIB and, particularly, the safe spaces concept. This is very important in the health service because of the traditional reluctance of staff to come forward with information about where things have gone wrong because experience has shown that whistleblowers have often been treated very poorly indeed.
I fully support the concept of HSSIB and safe spaces and believe that if it is implemented properly it will lead to improved safety. However, as the noble and learned Lord has so eloquently pointed out, the problem is that the inclusion in the Bill of the coroner’s ability to access this information would render the whole safe space concept unworkable. Staff will simply not trust it if these provisions are left in the Bill.
We are faced with two options. One is to take out the whole of the HSSIB provisions. Ideally, I would support that because it would benefit from a stand-alone Bill, where we could give it the scrutiny it clearly deserves. On the other hand, our job here is to be constructive as a revising Chamber. On that basis, we would be much safer removing the coroner elements and giving the Government a little more time to discuss this further before the Bill goes on to Third Reading and back to the other place.
I think there are ways through. I have been attracted, for instance, to one solution put forward by the noble Baroness, Lady Brinton, in relation to a memorandum of understanding between the noble Earl’s department and the MoJ. We need to discuss that; in order to do so now, I believe we should remove the coroner provisions from the Bill.
My Lords, I apologise for rising because I know we need to move on but before I speak to this amendment perhaps I may take the opportunity, as I was not here on the first day of Report, to thank the Ministers for listening—and taking action after doing so on many aspects. I thank them all for that. I also thank all those who sent me good wishes. It helped, and I did not realise I had so many friends.
I shall not speak at length on this group. I have my name on both sets of amendments. The reason I supported removing the whole clause was that there are a lot of issues arising, not just the invasion of the safe space. However, I agree with the noble Lord, Lord Hunt of Kings Heath, that it gives the Government another chance if it is confined to removing the coroner provisions. I agree with what has been said: the medical profession particularly, but even other health professionals, will find it difficult if the safe space of what they say confidentially can be invaded, so I support that proposal.
My Lords, I well recall hearing Jeremy Hunt announce that we would have this organisation and thinking at the time how important it would be in turning the NHS into a learning organisation, in the interests of patient safety. I would prefer not to take the whole clause out but to amend it.
The predecessor non-statutory organisation’s chief inspector has written to us, pointing out that when his organisation was set up it was made clear that full statutory independence, along with the fully enclosed prohibition on disclosure, would be essential to its success. I am concerned that if this power to disclose information to coroners is left in then this organisation, which we all so much support, will be set up to fail. That would be a very bad thing for patients and the whole NHS.
Quite honestly, the number of cases that the HSSIB is going to investigate—only 30—is highly unlikely to cut across anything that the coroner wants to do. In fact, the Joint Committee which scrutinised the previous Bill in 2018, which got only as far as Second Reading, concluded that the safe space would in no way impede the ability of coroners, regulators, the PHSO or the police in undertaking their own investigations or speaking to witnesses. That is not what we heard in the meetings which the Ministers have been kind enough to set up on Zoom, or from the Ministry of Justice. They obviously disagreed with the Joint Committee that scrutinised this carefully.
I hope the Minister is not going to rely on paragraph 6(7) of Schedule 14 because, as it stands, the so-called protections in that part of the Bill are completely unknowable. How can the High Court know whether a disclosure to the coroner will deter future witnesses from giving full disclosure? It simply cannot know that but there is a big danger. Nor can it know whether it will have an
“impact on securing the improvement of the safety”
of the health service. This is an empty protection and I hope the Government will not rely on it when arguing against the amendment of the noble Lord, Lord Hunt.
My Lords, I am grateful to the noble and learned Lord, Lord Etherton, for so forensically and carefully introducing this group of amendments. The debate on the subject today, as on previous occasions, has been both rich and constructive. I hope it will lead to improving this clause; as we have heard, there are multiple issues in respect of its drafting. The main issue and debate today focused on coroners having access to protected information which has been shared in confidence under safe space conditions. Therefore, I will make my brief remarks in respect of Amendment 124, tabled in the name of my noble friend Lord Hunt and supported by the noble Baroness, Lady Walmsley, and the noble Lord, Lord Patel. We are all pleased to see the noble Lord, Lord Patel, back in his place.
It cannot be right, on the one hand, for someone to be compelled to give information and to do so on the understanding that they act within a safe space and would be committing an offence if they did not give information, yet, on the other hand, to enable that very information to be made publicly available. It is not the purpose or duty of HSSIB to act as a branch of the coroner. The coroner has multiple other avenues of access to information and powers of investigation. It does not need the access to this protected material simply because of the convenience of the existence of HSSIB. Therefore, I hope the Minister will understand this point and take it on board. If not, and if noble Lords are so minded to test the opinion of your Lordships’ House, these Benches will support the relevant amendment.
My Lords, every day, the vast majority of NHS patients receive safe, effective and world-class care. Sometimes, though—and very sadly—errors occur which lead to harm. This is what the HSSIB will help us to address. The HSSIB will be an independent arms-length patient safety investigation body, with a statutory safe space and powers to discharge its investigative functions effectively across the NHS and the independent sector. This body will be one of the first of its kind in the world. Its independence will give the public full confidence that it will arrive at impartial conclusions and recommendations. The aim will be to drive improvements by learning and not blaming.
The provisions in the Bill were developed after considerable thought and scrutiny. We have had extensive stakeholder engagement, including an expert advisory group. The clauses, broadly in their current form, were scrutinised by a specific Joint Committee comprising Members of both the House of Commons and the House of Lords in December 2018. We accepted many of the Joint Committee’s recommendations—for example, to include independently funded healthcare within scope and to exclude local maternity investigations. The HSSIB had widespread support across both this House—when it was introduced in a previous Session and again during earlier debates—and the other place. I know that many noble Lords here today, having heard some of them, are enthusiastic about the prospect of a fully independent investigation body. I very firmly believe that we need to continue with the same enthusiasm and see this new body through to fruition. We should not delay this important work by rejecting this part of the Bill.
I honestly think that removing Part 4 would be a backward step. It would be greeted with dismay by those patient safety campaigners who have argued so eloquently for the creation of this body. The current investigation branch does not have the necessary independence or the range of powers to truly drive change as a world-class investigation body. This is what we are trying to address by creating a new body with all the tools it needs to thrive. By the way, those noble Lords who think that removing Part 4 and keeping things as they are will prevent access to information by coroners are wrong: coroners currently have such access, but without our proposed restrictions. Key to the HSSIB’s function is the creation of a statutory safe space, whereby non-compliance with those safe space protections can result in criminal sanctions.
I turn to the issue of access to safe space, which I recognise has caused concerns. We firmly believe that the only way to bring about a cultural shift in the NHS, so that people feel confident to share information and concerns are addressed promptly, is that there be a robust safe space. The current investigation branch does not have a statutory safe space. The Bill would create one, with tight restrictions. There are very limited circumstances when protected material can be disclosed—for example, if the HSSIB discovered information which demonstrated there was a serious and continuing risk to the safety of a patient or to the public—but this disclosure would occur only to the extent necessary to address those risks.
I know that direct access to protected material for senior coroners, as raised in Amendments 124 and 125, is an area of concern, but coroners have a unique role. A coroner’s investigation is an independent judicial process that aims to provide bereaved families with the truth regarding the death of their loved one—who has died, where, when and how—and enable society to learn from any mistakes that may have caused or contributed to a death. When a death occurs, and when that death requires coronial investigation for the sake of families and of the public, that work should not be hampered. It is an important principle that we should trust our judiciary. I am confident that coroners will take seriously their responsibilities to safeguard any safe space material that they may see. They are used to doing this; they already routinely handle sensitive, confidential material.
It is most unlikely that senior coroners will need to access safe space information on a frequent basis. Of the 57 national investigations conducted by the current investigation branch, 10 were investigated by the local coroner. However, only one gave rise to a request from a coroner for material held by the current investigation branch. Having said that, even though we expect requests for protected material will be rare, the principle of coroners having access when they need it is an important one.
My Lords, I am afraid I do not know the answer to that. I can, of course, find out and let the noble Baroness know, if those details are available.
I know there have been concerns that inquests can seem to be adversarial, and that protected material passed on to the coroner could be used in them. Inquests are, by definition, designed to be inquisitorial; statute prohibits inquests from determining criminal and civil liability, and interested persons are prevented by the inquest rules from making submissions on the facts. Coroners seek to obtain the objective truth—how and not why someone has died. I submit that not allowing coroners to see relevant safe space material could prevent justice being done and seriously undermine public confidence in the coronial system.
I turn to the important issue of funding, raised by Amendment 123, although I do not know that noble Lords have spoken to that. The noble Lord is shaking his head so, to save time, I will not cover that point.
Finally, let me just say that an independent HSSIB is an excellent concept that has wide support. In my submission, it would be a terrible pity if noble Lords rejected it because of doubts about how well it would work. I believe that it will give patient safety a valuable boost and hope that the House will support it.
I am extremely grateful to the Members of the House who have spoken, and to the Minister for his reply.
The Minister appears to accept that, if it is necessary to ask HSSIB for its material to reach a proper verdict or conclusion on the cause of death at an inquest, the material ought to be supplied and be made known to the families so that they have the benefit of what I described as the legal test: a full, fair and fearless investigation of the facts, in public. That is the problem.
Although the Minister referred to the extensive past consideration of safe spaces, I have not yet heard from any Minister, not even in the long letter we were helpfully sent on 3 March by the noble Lord, Lord Kamall, an explanation of how the safe space would operate in a coronial setting—in practice, that is, not in theory. As I said, I have not heard any explanation of how the information obtained by the coroner, which can be obtained only if it is relevant to the inquest, can be kept secret from the participants in the inquest. It cannot be; it is simply not possible. That is the fundamental problem with this particular provision relating to disclosure to coroners.
Having said all that, I heard what the noble Lord, Lord Hunt, had to say. In view of what he and others said, I beg leave to withdraw my amendment.
Amendment 122A withdrawn.
Schedule 13: The Health Services Safety Investigations Body
Amendment 122B not moved.
Clause 99: Investigation of incidents with safety implications
Amendment 122C not moved.
Clause 100: Deciding which incidents to investigate
Amendments 123 and 123A not moved.
Clause 101: Criteria, principles and processes
Amendment 123B not moved.
Clause 102: Final reports
Amendment 123C not moved.
Clause 103: Interim reports
Amendment 123D not moved.
Clause 104: Draft reports
Amendment 123E not moved.
Clause 105: Response to reports
Amendment 123F not moved.
Clause 106: Admissibility of reports
Amendment 123G not moved.
Clause 107: Powers of entry, inspection and seizure
Amendment 123H not moved.
Clause 108: Powers to require information etc
Amendment 123J not moved.
Clause 109: Voluntary provision of information etc
Amendment 123K not moved.
Clause 110: Offences relating to investigations
Amendment 123L not moved.
Clause 111: Prohibition on disclosure of HSSIB material
Amendment 123M not moved.
Clause 112: Exceptions to prohibition on disclosure
Amendment 123N not moved.
Schedule 14: Prohibition on disclosure of HSSIB material: exceptions
124: Schedule 14, page 237, line 41, leave out paragraph 6
Member’s explanatory statement
This amendment would remove the provision allowing coroners to require the disclosure of protected material.
Amendment 124A not moved.
Clause 113: Offences of unlawful disclosure
Amendment 124B not moved.
Clause 114: Restriction of statutory powers requiring disclosure
125: Clause 114, page 101, line 34, leave out subsection (7)
Member’s explanatory statement
This amendment, along with another amendment to Schedule 14, would remove the provision allowing coroners to require the disclosure of protected material.
Amendment 125 agreed.
125A: Clause 114, leave out Clause 114
I am so sorry, Deputy Speaker, but I asked for my amendment to be dealt with by way of just removing the whole of Part 4, but I was told by the Public Bill Office that every single clause had to be mentioned. The Public Bill Office was unable to explain why that was, other than that was how it had always been.
Amendment 125A not moved.
Clause 115: Co-operation
Amendment 125B not moved.
Clause 116: Assistance of NHS bodies
Amendment 125C not moved.
Clause 117: Investigations relating to Wales and Northern Ireland
Amendment 125D not moved.
Clause 118: Failure to exercise functions
Amendment 125E not moved.
Clause 119: Review
Amendment 125F not moved.
Clause 120: Offences by bodies corporate
Amendment 125G not moved.
Clause 121: Offences by partnerships
Amendment 125H not moved.
Clause 122: Obligations of confidence etc
Amendment 125J not moved.
Clause 123: Consequential amendments relating to Part 4
Amendment 125K not moved.
Schedule 15: Consequential amendments relating to Part 4
Amendment 125L not moved.
Clause 124: Interpretation of Part 4
Amendment 125M not moved.
Schedule 16: Virginity testing: consequential amendments
126: Schedule 16, page 242, line 11, after “(h)” insert—
“(a) omit the “and” at the end of sub-paragraph (iv);”Member’s explanatory statement
This amendment is consequential on paragraph 5 of Schedule 16 to the Bill, which adds a new sub-paragraph (vi) to section 19A(6)(h) of the Criminal Procedure (Scotland) Act 1995.
Amendment 126 agreed.
Clause 151: International healthcare arrangements
126A: Clause 151, page 117, line 40, leave out subsection (3) and insert—
“(3) In section 1, omit “an EEA state or Switzerland” and insert “a relevant state or territory”.(4) In subsection 2(1)(b) omit “an EEA state or Switzerland” and insert “a relevant state or territory”.(5) In subsection 2(2) after (i) insert—“(j) make provision to make payment (otherwise than under a healthcare agreement) in respect of healthcare provided in a relevant country or territory, but only when the Secretary of State considers that exceptional circumstances justify the payment and has laid before Parliament the reasons for such consideration and the details of the payments;”.(5) Omit subsection 2(7).(6) After section 2 insert—“(2ZA) Regulations under section 2 may—(a) confer functions on a relevant public authority or a Scottish or Welsh health board (including discretions);(b) provide for the delegation of functions to a relevant public authority or a Scottish or Welsh health board.(2ZB) The Secretary of State may give directions to a person about the exercise of any functions exercisable by the person under regulations made by virtue of section 1 (and may vary or revoke any such directions).””
I shall speak to all the amendments in this group. I am very grateful to the noble Baronesses, Lady Brinton and Lady Thornton, for their support. All the amendments in this group address Clause 151. The purpose of this clause is to enable the Secretary of State to implement reciprocal healthcare agreements with countries other than the EEA states and Switzerland, where we already have such agreements. These agreements were provided for by the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019. This Act was the subject of intense debate as it passed through this House. Noble Lords approved the inclusion in the Act of explicit constraints on the powers of the Secretary of State to make such agreements. This ensured that wider and different purposes, such as privatisation, could not be included. I make it clear at this point that we strongly support the intention to extend the geographical range of reciprocal healthcare agreements.
Clause 151 works to do this by amending and then renaming the 2019 Act. However, the structure of an amended 2019 Act would differ significantly from what it is now. These differences are chiefly in removing the list of explicit constraints on the way in which the Secretary of State can use the regulatory powers and in changing the definition of a “healthcare agreement”. This can be read as suggesting a wider agenda than just providing reciprocal healthcare. In particular, removing the list of constraints and the redefinition of “healthcare agreement” seems to allow far wider scope to alter our existing healthcare provisions, perhaps including elements of privatisation. This all looks a lot like a potential privatisation Trojan horse, or at least a privatisation Trojan pony.
All the amendments in this group, taken together, restore the detailed constraints imposed on the Secretary of State by the 2019 Act. There are eight of these constraints; the main three are:
“Regulations … may only do one or more of the following things … specify or describe levels of payment and how they are to be calculated … specify or describe persons in respect of whom payments and provision may be made”,
“specify or describe the types of healthcare in respect of which payments and provisions may be made”.
These are very tight and prescriptive constraints, whose meaning is entirely and immediately clear. They make it absolutely plain that the powers granted to the Secretary of State by the Act can be used only in the narrowly defined context of reciprocal healthcare agreements and for nothing else. It is puzzling and worrying that the Government seek to remove these explicit constraints. It would be good to hear from the Minister the reason for their removal, and perhaps even better to hear an assurance that the Secretary of State’s discretion has not been materially widened.
The second major area for concern is over the proposed revised definition of a “healthcare agreement”. The existing definition, in Section 3 of the 2019 Act, is
“an agreement made between the government of the United Kingdom and an EEA state or Switzerland or an international organisation, concerning either or both of the following … healthcare provided in an EEA state or Switzerland, payments in respect of which may be made by the government of the United Kingdom”
or, the reverse,
“healthcare provided in the United Kingdom, payments in respect of which may be made by an EEA state or Switzerland”.
All that is perfectly clear, and defines precisely the meaning of a “healthcare agreement”.
The Government propose in Clause 151 to drop this simple and narrow definition and intend to replace it with new Section 2B(5). The new definition would read
“an agreement or other commitment between the United Kingdom and either a country or territory outside the United Kingdom or an international organisation, concerning healthcare provided anywhere in the world”.
There is no mention of payments in this definition. Why is it more widely drawn? What other elements could be put into a healthcare agreement, and what are these other commitments that suddenly appear? Those are the major changes that the amendments address.
There is one further change proposed by Amendment 184ZC; it makes all the statutory instruments generated by Clause 151 subject to the affirmative procedure. As the Bill stands, all these statutory instruments would be subject to the negative procedure, which of course provides no real opportunity for parliamentary scrutiny at all.
I close by offering my sincere thanks to the Minister and his officials for their very close engagement on all the issues that I have mentioned. I am very grateful for their generosity in providing time for our many discussions, and I look forward to the Minister’s response. I beg to move.
My Lords, I echo the thanks of my noble friend Lord Sharkey to the Ministers and their officials for the very helpful discussions that we have had with them on reciprocal healthcare agreements. I also thank my noble friend for his persistence in leading on those discussions between Committee and Report on the two points of difference between us—the definition of reciprocal healthcare, with our concerns about the ability to create a privatisation of parts of healthcare, and that an SI under a negative resolution is not strong enough for Parliament to scrutinise properly. My noble friend’s amendments are, as he said, very specifically aimed at removing these concerns, and I look forward to the Minister’s response.
I also particularly thank Ministers for understanding that the House was deeply unhappy with the original proposals for regulations via a negative resolution. I hope to hear that Ministers will now agree to the affirmative resolution proposed in the amendment of my noble friend Lord Sharkey. Scrutiny by Parliament needs to be timely, and Parliament needs to be allowed to effectively challenge proposals about which it has concerns.
My Lords, it is a great pleasure to speak about reciprocal healthcare, which is not how I felt several years when we dealt with this exact issue in your Lordships’ House, as many noble Lords might remember. It was with some trepidation that I and these Benches looked at this part of the Bill, because we were so concerned and had to do so much work to protect our NHS in the passage of the 2019 Act.
I am very grateful to the Minister and the Bill team for engaging with us so thoroughly to take on the board our concerns, which needed to be built into this part of the Bill. I say particularly how impressed I am by the noble Lord, Lord Sharkey, and how grateful I am to him for his understanding and persistence—and his ability to read long, complex documents, understand them and then translate them so that other people can understand them too. That is a great talent.
From these Benches, with the idea that the affirmative resolution will be agreed, we are very happy indeed.
My Lords, I too thank noble Lords for their helpful engagement on this matter over the last few weeks and for bringing forward the debate on this issue today. It is important that the results of those discussions are on the record, so I hope that noble Lords will forgive the length of my response.
I am pleased that we agree on the overarching benefits of having reciprocal healthcare arrangements with countries across the world, which would provide support to UK residents when travelling abroad and can be particularly valuable to those with long-term health conditions. Such arrangements can also support enhanced healthcare co-operation with our international partners. It is for these reasons that the Government have negotiated new arrangements with the EU and Switzerland and now wish to refresh arrangements with countries outside Europe and with our overseas territories and Crown dependencies. This policy is fundamentally aimed at assisting UK residents to access healthcare abroad.
Turning to the amendments tabled by the noble Lord, Lord Sharkey, I start by making some assurances to him and to the House over the policy intentions of the international healthcare arrangement clause in the Bill. To be clear, this legislation is not about the negotiation of international healthcare agreements. Those agreements are negotiated using prerogative powers. This clause and the 2019 Act that it amends simply ensure that the Government have the powers to implement international healthcare agreements. Healthcare agreements contain substantive provisions, such as eligibility criteria and which treatments will be covered. New Section 2(1) gives us the power to implement those healthcare agreements; for example, by putting in place administrative arrangements and conferring functions on public bodies to deliver our reciprocal healthcare commitments. We could, for example, set out which public body will administer the global health insurance cards. It is anticipated that any regulations made under new Section 2(1) will be materially the same as the current Healthcare (European Economic Area and Switzerland Arrangements) (EU Exit) Regulations 2019 No. 1293.
The department has been undertaking careful analysis of how to take forward international healthcare agreements, balancing the benefits for citizens when abroad with the Secretary of State’s duties in the NHS Act 2006, which apply when exercising functions in relation to health services, for example, the duty to continue the promotion in England of a comprehensive health service. Our analysis to date shows that there are clear benefits to be derived from state-to-state reimbursement models, but that these will generally work only with countries with public healthcare systems.
I recognise the noble Lord’s concerns about the breadth of the powers, and I reassure him that Clause 151 narrows the powers under the Healthcare (European Economic Area and Switzerland Arrangements) Act 2019 to better reflect what is necessary now that the UK has left the EU and has reciprocal healthcare arrangements in place through the trade and co-operation agreement. It does this by revoking existing powers in Section 1 of the 2019 Act, which currently enable the Secretary of State to pay for unilateral healthcare policies in the EEA and Switzerland; enabling payments to be made for treatment outside the scope of a healthcare agreement only if exceptional circumstances justify the payment; allowing the payment power to be exercised only if authorised by regulations. and limiting the Secretary of State’s ability to make regulations in areas of devolved competence.
Our approach follows concerns raised by noble Lords in the original Bill debates in 2019 about the breadth of the unilateral payment and regulation-making power. Under the current Sections 1 and 2, the wide powers given to the Secretary of State to fund healthcare in the EEA and Switzerland were intended to cover various EU exit options and ensure that UK nationals were not left in a cliff-edge situation in the EEA and Switzerland in the event of a no-deal scenario. There was limited additional scrutiny for the payment power in the original 2019 Act due to the circumstances at that time. We consider that this power is no longer appropriate or necessary now that the trade and co-operation agreement is in place.
Amendment 126A would limit the exceptional payments power so that it is exercisable only after the Secretary of State has set out reasons for, and details of, any payments made before Parliament. However, I do not believe that this would work in practice. The policy intention is that the exceptional payments power will be used in circumstances where an individual falls marginally outside of the scope of a healthcare agreement. We have, for example, used discretionary payment powers under the 2019 Act to provide crisis mental health support to a minor in the EU who was not covered under the European health insurance card scheme due to the structure of the member state’s healthcare system. These circumstances are often where an individual has a very serious and urgent medical need, and it remains essential that the Government are able to move quickly to support that person and ensure their welfare. An amendment where this power is exercisable only after the reasons and details of payments have been laid before Parliament could severely hamper our ability to act quickly—something that I am sure is not the intention. Furthermore, the Government are already obliged under Section 6 of the 2019 Act to lay before Parliament an annual report outlining the payments made pursuant to the Act. This ensures that there is transparency and will continue to apply following amendments made by this Bill.
I confirm that the amended definition of a “healthcare agreement” in this Bill is materially the same as the current 2019 Act definition. Both cover commitments between the UK and a country, territory or international organisation for healthcare provided outside the UK in whatever form. Making reference to “other commitment” is a drafting change to make it clearer that the regulation-making power can be used to implement non-legally binding arrangements, such as memoranda of understanding. This ensures that implementation of reciprocal healthcare arrangements made with close partners, such as the overseas territories and Crown dependencies, are in scope of the 2019 Act, as they do not have the authority to become parties to treaties in their own right. They can, therefore, enter only into non-legally binding arrangements.
Amendment 184ZC would make regulations subject to the affirmative resolution procedure. With thanks to the noble Lord, Lord Sharkey, for his constructive engagement, the Government are content to accept this amendment and, as the noble Lord is aware, may amend it further to ensure that the drafting is optimal for our shared objective.
The purpose of the 2019 Act and the provisions that we have put forward in Clause 151 is not to implement trade deals. The Government have categorically stated in their manifesto that the NHS is off the table when we are negotiating agreements with our international partners. To be clear, it is important to state that reciprocal healthcare agreements that we agree with other countries do not relate to the commissioning and provision of services for the NHS. The policy intention in that reciprocal healthcare should cover publicly available healthcare.
This legislation narrows the scope of the powers compared with the 2019 Act and is tailored to negotiate more comprehensive healthcare agreements with our closest partners, as well as provide support to our citizens when they need it most. For that reason, I ask the noble Lord to withdraw this amendment and not move Amendments 126B to 126G. I confirm the Government’s support for Amendment 184ZC.
My Lords, I am very grateful to the Minister for the comprehensive way she addressed the various anxieties about Clause 151. I am reassured by her clear statement that the purpose of the 2019 Act, as amended in this Bill, is not to implement trade deals, and by her equally clear statement that reciprocal healthcare agreements do not relate to the commissioning and provision of services for the NHS. I heard the Minister say that Clause 151 actually narrows the power given under the 2019 Act and explained how this was so. I am grateful for that explanation too. I am even more grateful that all the regulations produced by Clause 151 will now made under the affirmative procedure. On that note, I beg leave to withdraw the amendment.
Amendment 126A withdrawn.
Amendments 126B to 126G not moved.
Clause 155: Cap on care costs for charging purposes
127: Clause 155, page 124, line 16, leave out subsection (2)
Member’s explanatory statement
This amendment is linked with the amendment in the name of Baroness Wheeler to leave out Clause 155.
My Lords, I will also speak to my Amendment 141, which would delete Clause 155. I am very grateful to the noble Baronesses, Lady Campbell and Lady Brinton, and to the noble Lords, Lord Warner and Lord Lansley, for their combined support of these amendments. Sadly, the noble Baroness, Lady Bull, and the noble Lord, Lord Lansley, cannot be here, but the noble Baroness, Lady Campbell, and the noble Lord, Lord Warner, will speak to my amendments. I understand that they will move Amendments 143 and 144A.
In the Care Act 2014, we have a carefully crafted, step-by-step, cross-party agreement implementing the key recommendations of the 2011 Dilnot commission on the cap-and-floor model of social care funding, which went through the full parliamentary processes in both Houses. It built a consensus for implementing and funding the introduction of the care cap in 2016, and enshrining the key Dilnot principles of fairness and equity across all those needing social care. However, as we know, this agreement was never implemented following two separate postponements and a final cancellation in 2019.
Instead, the short Clause 155 we have before us on the Government’s proposals is a last-minute, hastily scraped together, ill-thought-through mishmash of subsections added to an essentially NHS Bill after its Commons Committee had finished, which was then bombarded through that House without any time for close scrutiny and debate. Our own Committee session on this clause started late in the evening at 10.30 pm and lasted not much more than an hour, so we fared little better on such a major and fundamental issue that will impact hundreds and thousands of lives. Moreover, the Minister, despite his offer on the record in Committee to talk to noble Lords about their questions and concerns, has been given no authority to discuss or agree any possible changes to the clause, which is so clearly ill thought through—contrast this with the fruitful discussions that have been held on a number of other important issues in the Bill.
My Amendments 127 and 141 to delete Clause 155 would ask the Commons to think again about how it implements the care cap. It presents a key opportunity for fundamental reconsideration of the Government’s proposals. There has now been time for greater analysis and scrutiny of the proposals and their impact by key stakeholders and expert think tanks, such as the Nuffield Trust and the King’s Fund, both of which have called for the clause to be removed. Its deletion would restore the full provisions on the cap under the Care Act 2014. It would mean that there would be reconsideration of how the cap should be implemented, not whether it would be implemented. Amendment 144A would reinforce this.
Labour strongly supported the 2014 negotiated care cap, its charging package and the costs involved. This has always been in the context of the care cap as part of a much wider social care reform that is needed to address the current crisis and build long-term sustainability and growth, which the Government have yet to address. We know that the Government’s proposals for the cap were discounted by Dilnot in 2011 as unfair, because they will result in people with low levels of wealth spending the largest proportion of their income on their care. The cap at £86,000 is set too high to benefit the majority of people who need to be protected, and the bombshell of abandoning the key safeguarding Dilnot principle enabling local authority care costs to count and accrue towards the cap means that poorer people will be exposed to the same care costs as the very wealthiest in society.
Despite the pledge that nobody should have to sell their homes, the fact is that someone with assets of £100,000 will lose almost everything, whereas someone with assets worth £1 million and over will keep almost everything. This is clearly shown in the extensive modelling by stakeholders such as Age UK, Mencap, the Alzheimer’s Society and the think tanks. That was detailed during our Committee debate, particularly the impact across some of the most deprived areas in the country. The Government’s own figures show that more than one in five older people will not see the benefit of the cap at all, and poorer care users are much more likely to die before they reach the cap than someone who is better off with the same care needs. Only 19% of people with dementia will reach the cap.
Moreover, Amendment 143, which will now be spoken to by the noble Baroness, Lady Campbell, and the principle of which we strongly support, reinforces the key point that a fair cap and charging system has to provide essential support to older adults and working age disabled adults, many of whom have lifelong conditions, including those with learning difficulties and who have to draw on social care support for their daily needs and support. The Dilnot proposals recognise this by seeking to ensure that adults entering the care system under the age of 40 or who were under 40 when they first entered it would have their care capped at zero.
I commend Amendment 144A from the noble Lord, Lord Lansley, to which I added my name. This fully complements the deletion of Clause 155 in restoring the current charging provisions in the Care Act. It would add a new clause to require the Secretary of State to make regulations under the Care Act to ensure that all its provisions on the care cap—Sections 15 and 16—come into force before 1 April 2023. This would mean that there would be no delays to the implementation of the care cap based on the relevant sections of the Care Act. It also means that the uprating of the care cap value from the level fixed in 2014 could take place—the concern of Amendment 182.
What is crystal clear is that the Minister’s repeated claim—or rather, as he described it in Committee, his “hope”—that
“no one will lose out when compared to the current system”—[Official Report, 31/1/22; col. 751.]
or face “unpredictable care costs” just is not borne out by the evidence proving otherwise, which is stacking up every day. Increasing the complexity of local authority charging arrangements on personal budgets, as the government amendments to the Care Act seek to do, makes an already hugely complex and system-heavy admin and technical system even worse. How many care users will be able to understand what is happening? I was particularly interested in the comment by the noble Lord, Lord Lansley, in Committee that a number of the issues that the government amendments sought to rectify or amend were never introduced in 2014 anyway.
How much more straightforward to use the sections of the Act developed for implementation than to try to patch up the provisions and hang them on a different Bill. We support the ambitions of self-funders to pay the same rate for care as local authorities pay for the people they fund, but there is absolutely no evidence of any government intention to provide cash-starved councils with the huge costs involved in this, and bearing in mind the massive underfunding of social care over the past decade.
Clause 155 must be deleted so that the key Dilnot principles of fairness and equity across all those needing social care can be reinstated. Deletion of the clause would mean that implementation of the care cap could proceed but under the provisions of the fully scrutinised Act designed to implement it: the Care Act. Under Amendment 144A, all provisions relating to the cap would be implemented by 1 April 2023.
At the appropriate time, I shall withdraw Amendment 127 and then move Amendment 141 in its place and seek to test the opinion of the House. I understand that the government amendments to Clause 155, which come before Amendment 141, will be agreed on the nod and will then fall if Amendment 141 is carried. I beg to move.
My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite the noble Baroness to speak.
My Lords, I thank the noble Baroness, Lady Wheeler, for introducing so comprehensively this group of amendments on care costs. Given the lateness of hour in Committee, the House needed to hear the detail of this.
Her Amendments 127 and 141, which I have signed and which we will support if she calls a Division, would remove the cap on care costs which was announced and introduced by the Government in the Commons. It was not widely consulted on, and is a deeply unfair element of the Government’s proposals for the new social care payments arrangements. Far from fixing the ongoing crisis in social care “once and for all”, which the Prime Minister said from the steps of No. 10 Downing Street in 2019 he would do, these divisive plans will not stop people needing to sell their homes to pay for care and are a breach of the Government’s promise in that election. It is very important that the Commons have the time to discuss the consequences of the detail of removing that cap now that the announcement has been better understood, especially by the professionals, including the think tanks, who are very concerned about it.
We also support the noble Baroness, Lady Campbell of Surbiton, who will speak to Amendment 143 in the name of the noble Baroness, Lady Bull, which would ensure a zero amount for personal care charges for those under 40. It is absolutely against the spirit of Dilnot and a deep injustice to those under 40 with personal care needs that they are treated the same as those whose working years are behind them. It is a huge injustice that we have an NHS that is free at the point of use and yet younger people with learning disabilities and life-limiting health conditions are charged for essential care. There are also a number of deep, practical contradictions in this arrangement that make it particularly shocking, including a survey that found that charges made by cash-strapped local authorities—made because they could charge them—had forced people to stop the care they needed or made them face difficult choices for financial reasons, with the results showing an increased reliance on family members and high levels of deteriorating mental health, including suicidal thoughts.
Amendment 144A from the noble Lord, Lord Lansley, and as outlined by the noble Baroness, Lady Wheeler, supports the principles behind both Amendments 127 and 141, which would remove Clause 155. It proposes that all provisions on the care cap are brought into force by 1 April 2023 by regulation under the Care Act, resulting in no delay to its implementation. We support that too.
My Lords, the noble Baroness, Lady Campbell of Surbiton, is also taking part remotely. I invite the noble Baroness to speak.
My Lords, I support Amendments 127 and 141 in the name of the noble Baroness, Lady Wheeler; Amendment 143 in the name of my noble friend Lady Bull; and Amendments 144A and 182. Sadly, my noble friend Lady Bull is unwell, so I will speak to Amendment 143 and do my best to encapsulate her reasons, as well as mine, for returning to it on Report. I shall not move it later when it is called.
Unfortunately, at this hour, my voice is fading because I have had to use it a great deal today, so I shall use my speech facilitator, as allowed by the House, more than I would usually.
Clause 155 overall is a regressive measure which will particularly affect younger disabled adults. Amendments 127 and 141 would restore the current charging provisions in the Care Act. Amendment 143 would apply a zero cap to the care costs of people under the age of 40 who develop or have developed eligible care support needs. It would effectively make their care needs free.
The Government’s current proposals seek to apply one charging system to two very contrasting groups: older adults and working-age adults. They are significantly different, not only in their care needs but in their financial profile. Working-age adults starting out in life with high care costs have little chance of saving for the future. As one social care commentator has noted, the catastrophe for many working-age disabled people takes the form of years of poverty and denial of opportunities.
The Disability Discrimination Act 1995, which came into force under a Conservative Government, acknowledged for the first time that treating everyone the same discriminates against disabled people. It is necessary to treat some people differently in order to give them equal life chances—to work, to travel and to be free; in other words, to improve one’s lot.
The Government should look at a charging formula to address the economic hardship of those reliant on social care. Social care is an investment; it makes economic sense for a thriving, healthy society. Keeping people in a state of dependency is infinitely more expensive than enabling them to live active, independent lives.
Having to give a large part of your modest income to the state—almost 40% in some cases—because you happen to be born disabled, or to become disabled early in life, impoverishes those who already have disability costs, averaging £583 a month. The evidence shows that this group will suffer most in terms of their health and well-being. Trapped in poverty, they will never achieve what the Government claim they want disabled people to aspire to—so much for the levelling-up agenda.
The Government say that nobody will be worse off than they are now. That is of no comfort to young disabled people whose means-tested benefits and entitlements are not keeping pace with the rising cost of living. The Government’s own impact assessment undermines their claim. It assumes that working-age adults do not contribute to their care costs from their income, but it then admits that
“income from some benefits would be included”.
It cannot be right that benefits intended to help individuals meet the additional costs of disability are used to fund the gap in local authorities’ care budgets.
When the Government announced the cap last September, they said it reflected the Dilnot charging reforms, but Dilnot recommended a zero cap for those under 40, as it did not think that younger adults could
“realistically be expected to have planned for having a care and support need, nor will they have accumulated significant assets”.
This solution is not radical or expensive. Few under-40s are able to contribute to their care costs—on the Government’s figures, 90% of all working-age adults have their care costs supported by the state. Basic estimates suggest that around 9,000 might benefit in 2022-23 and up to 10,500 in 2031-32. The absence of government data on this sector makes it difficult to estimate the cost more accurately.
It cannot be right to proceed with a policy on such inadequate evidence. If the Government do not accept this amendment, will the Minister at least commit to improving the quality of data on working-age adults? The Minister raised concerns in Committee that the zero cap would create a cliff edge at the age of 40. But cliff edges exist in numerous policies in legislation, such as pension ages and the £20,000 limit in the current charging proposals.
At the start of the Tokyo Paralympic Games last summer, the Prime Minister referred to the newly launched national disability strategy, saying that
“we are harnessing that same ambition and spirit, to build a better and fairer life for all disabled people living in the UK.”
I am afraid that in Clause 155 there is a very hollow ring to that much-trumpeted fairness—in fact, it does the opposite. I therefore urge the Minister to go back and think again about the effect of these charging proposals on younger working-age disabled adults. Clause 155 denies them the right to equal life chances, and I urge Members to reject it.
My Lords, I rise to speak to Amendments 141, 143 and 144A—to all of which I have added my name. In the unavoidable absence of the noble Lord, Lord Lansley, through Covid, I shall be moving Amendment 144A with his agreement. I also declare my interest as one of the three members of the Dilnot commission and, unsurprisingly, I shall be supporting the findings of the commission’s report in speaking to these amendments.
The coalition Government passed the Care Act 2014 to enable the Dilnot cap to be implemented but, since then, there has been no action to do this until now, with Clause 155 of this Bill. Unfortunately, that clause has major unfairnesses and shortcomings, as has been pointed out by all three speakers—the noble Baronesses, Lady Wheeler, Lady Brinton and Lady Campbell—so I am not going to repeat what they have said. This is a deficient clause, and no reasonable person would see it as a fair and reasonable implementation of the Dilnot proposals on the cap. As far as I am concerned, Clause 155 is an unsatisfactory attempt at implementing that commission’s report and should be deleted from the Bill.
I turn to Amendment 144A in the name of the noble Lord, Lord Lansley. The purpose of this amendment is very simple: to require the Government to bring Sections 15 and 16 of the Care Act 2014 into force by April 2023. That is the time when one might expect the Government to bring the cap into force if Clause 155 remained in the Bill, so I do not think we are doing anything very adventurous by putting that date in the amendment. However, the removal of Clause 155 without any replacement would create uncertainty as to whether Sections 15 and 16 of the Care Act would be activated. If, as I and the noble Lord, Lord Lansley, hope, Clause 155 is deleted, Amendment 144A would ensure that the cap was brought into force by April 2023, but also on the basis that the cap was calculated to include the costs of all eligible needs met by the responsible local authority. In short, Amendment 144A would ensure a date for the Dilnot report on fairer care funding to finally start being implemented.
I acknowledge that if the noble Lord, Lord Lansley, were here to move this amendment, he might be more trusting than I am and willing to accept assurances from the Minister that Sections 15 and 16 would be activated by April 2023. I am afraid that someone who wrote and contributed to a report over a decade ago—which has been subject to prevarication ever since then—is rather less trusting, and I think it is absolutely essential, if we want to implement the Dilnot recommendations, that we should not offer that comfort of assurances to the Minister.
I turn briefly to Amendment 143, spoken to so well by the noble Baroness, Lady Campbell, in the absence of the noble Baroness, Lady Bull—another Covid casualty. The Government have made—if I may put it this way—a total hash of the Dilnot recommendations on page 24 of our report. These made it absolutely clear that anyone born with an eligible care need—or who developed an eligible care need before the age of 40—should have a zero cap. We set out the evidence and the arguments for this recommendation extremely clearly. The Government have chosen to ignore our clarity and have muddled up—for charging purposes—the income and capital circumstances of two very different groups of people: older adults and disabled working-age adults. As the noble Baroness, Lady Campbell, has shown, this is very unfair to working-age disabled people. I suggest to the Minister that the Government need to remember the title of our report was Fairer Care Funding—that is what it said on the tin, and that is what we expected to be implemented. The extra cost of sticking to our recommendations on working-age disabled people is—at the most—about the cost of 10,000 people by about 2030. That, if I may put it crudely, would be about the cost of a few rather dodgy PPE contracts.
These three amendments—141, 143 and 144A—work together well as a package. They remove dubious government amendments; they restore the Dilnot proposals for younger disabled people at a modest cost; and they start the implementation of the Dilnot cap in April 2023 on the basis that we recommended.
My Lords, it gives me great pleasure to follow the noble Lord who sat on the Dilnot committee. I think it was a first-class report, which, at the time, I was prepared to endorse as the least bad solution to the social care problem. But I have changed my mind since then. Why? Because the facts have changed. I set out some of those facts when I spoke in Committee, and they include the large rise in house prices that makes many people much more able to pay for care for themselves at the moment. The facts have changed again in the last couple of weeks because of this disgusting war that has broken out in Ukraine. As a consequence, we are going to have to spend more on defence, as the Germans have already recognised. Therefore, public budgets are going to have to be squeezed in other areas. I regret those squeezes, but it is President Putin’s fault, not ours.
In those circumstances, to add more than £2 billion to the cost of the welfare state seems an extravagance. It seems still more of an extravagance to add a further £1 billion, which will be necessary if the amendment proposed by my noble friend Lady Wheeler is accepted. We just cannot play around with money on that scale at this time, however good the cause.
I have previously put to the Minister my own preferred way forward, which is to look for a private-public partnership, at much less cost to the public purse, which could enable people who wish to protect themselves and their heirs from care costs to do so without recourse to the state. In addition, just in case the Government persist with the Bill, I suggest that if they really want to help poor people, my own side would not be looking to get rid of the amendment moved by the Government in the other House at the last moment but would be doing something to reduce the taper, which viciously attacks people with assets up to £100,000. The amendment that the Government have put forward and which Labour opposes stretches help up to people with £186,000. To reduce the taper, as I propose in my Amendment 142, would concentrate all the help on the people with less than £100,000.
I am afraid that we are on the wrong course here and getting out of it will not be easy. However, this is a weight of public expenditure that is ill directed, aimed at—and indeed entirely benefiting—the better-off half of the population, and which does nothing for the worse-off half of the population, who, most of all, need better care. It is misconceived policy in today’s circumstances and I hope that the amendments, apart from my own, will not carry.
My Lords, I rise briefly to support Amendment 141, which I would have added my name to had my noble friend Lord Lansley not done so himself. As he is not here, from these Benches I add my support for the deletion of Clause 155. As an adviser to the Dilnot commission at the time—around 2011—I believe it runs directly counter to the aims of the cap, which had such strong cross-party support. I am sorry to say to my noble friend that I struggle to understand the Government’s concept of fairness in this regard when Clause 155 imposes much greater losses of wealth on the least well off and forces longer waits on them while those with significantly more assets lose only a small proportion of their wealth before state funding starts.
I support Amendment 141. I hope my noble friend will either be able to accept it or that the other place will have a chance to consider this unfair change, which was added at the last moment without giving Members there an opportunity to do so.
My Lords, I am in favour of deleting Clause 155, as proposed by the noble Baronesses, Lady Wheeler, Lady Brinton and Lady Campbell. I will also speak to my Amendment 182, which would lower the social care cap to £51,000 from 2023. I will not be putting my Amendment 182 to a Division but I feel that it is important to bring it back on Report as this would be the level of the cap recommended by the 2011 Dilnot report, then adjusted for care cost inflation. I understand that the Government’s cap of £86,000 is based on the increase in property values since the Dilnot report was published—can the Minister please confirm that? If so, was this for properties throughout the country and does it factor in that, while property values in London have increased significantly over the last decade, in many parts of the country they simply have not? Can the Minister please explain how the Government came up with that figure?
Clause 155 is a break with what is currently in the Care Act, which would mean that means-tested support does not count for an individual’s progress towards the social care cost cap. According to analysis from the Institute for Fiscal Studies, with Clause 155, someone with that care need who has an annual income of £16,000 and assets of £100,000 would take almost six and a half years to reach the cap, whereas without Clause 155 the cap would be reached after three to four years. I declare my interest as set out in the register as co-chair of the All-Party Parliamentary Group on Dementia. For many people with long-lasting forms of dementia who require many years of care, Clause 155 will disadvantage them considerably.
I will be voting to delete Clause 155 and for the Government to return to the sound and sensible recommendations from the 2011 Dilnot report, with numbers adjusted for inflation, and implement them.
My Lords, these Benches support Amendments 141, 143 and 144A. I congratulate all who have spoken and laid out the very important issues that we are talking about in this group. I will add one more point, which is that the fairly small savings that the Government might make under these measures, unless they are amended, would be paid for by the most vulnerable people. That is unworthy of a Government who say that their ambition is to level up across the country.
I thank all noble Lords who have spoken in this debate and I am sorry I was unable to engage as much on this issue as I was on others. I will speak first to government Amendments 128 to 140 and 187. We believe that these amendments are crucial to make the adult social care charging reforms work as intended. If they do not stand as part of the Bill, it will lead to unfairness between those whose needs are met by a local authority and those who self-fund their care. The intention of these amendments is to correct this.
Without these amendments, some costs which individuals have incurred will not meter towards the cap when they should do so. Currently, individuals eligible for funded support who have not had a timely needs assessment may incur costs in getting their needs met in the interim. This applies whatever system of charging we come up with. The costs incurred during periods of delay currently do not count towards the cap, and my amendments fix this. We came across this issue when we were looking back at previous Bills and unintended consequences.
I have also tabled an amendment to clarify the circumstances in which an independent personal budget must be provided by a local authority and what information those documents must include. We want these to be forward-looking documents, personal to the care user. To support this and to simplify the metering process, we are also removing the link between these documents and what meters.
Finally, as set out in the recent impact assessment, our charging reform implementation plan includes a small number of trailblazer local authorities that will implement charging reform earlier than others. I have tabled Amendment 187 to allow these trailblazer local authorities to begin implementing the reforms before others. For these reasons, I ask that noble Lords support my amendments.
On the other amendments, a number of noble Lords have asked questions and I will try to answer them. We believe that the £86,000 level set for the cap balances people’s personal responsibility for planning for their later years with a need to put in place a system to ensure that nobody faces unpredictable costs. Removing Clause 155 or simply omitting Clause 155(2) would have the effect of removing the ability to meter towards the cap by individual contribution only. Instead, progress towards the cap would be based on both individual and local authority contributions to care costs. This policy is unfair. However, it is also considered unaffordable.
Removing these clauses would increase the cost of the overall reforms by about £900 million per year, if you keep all other parameters the same—although. of course, other noble Lords have asked for other amendments, so those parameters would not necessarily be the same. This would require raising the cap, reducing means-tested support or expecting people to make contributions towards their daily living costs that are unaffordable from most people’s income. None of these is preferable to the approach that the Government are proposing to take.
We argue that the Government’s reform package is affordable and deliverable. We have indeed seen many reports over the years, and I understand that the noble Lord, Lord Warner, was on the Dilnot commission, but we have to ask ourselves why these were not implemented. Although we may see many merits in a number of a different systems, and we all have our own biases or views on what the system should—
The noble Lord may say that, but I have been advised that they were considered unaffordable.
On Amendment 142, I thank the noble Lord, Lord Lipsey, for his engagement with me on his very interesting idea. I agree with him; I regret the fact that the private sector has not come forward sufficiently to offer products. I agree that that could have solved a number of problems, but I should clarify that the taper rate is not linked to income, as suggested. It is what people are considered to be able to afford to pay towards the costs of their care, based on their capital.
The amendment would make the means-testing regime significantly more generous than in the Government’s proposal, and I can see why that is attractive. However, once again, to answer the questions from many noble Lords, that would be considered to make charging reform unaffordable. We would be unable to afford to invest in wider improvements in the social care system that we are all keen to