Lords Sitting of 18 February 2003

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.

Congestion Charging
Viscount Astor Viscount Astor asked Her Majesty's Government:
Whether they will bring forward regulations under Section 143 of the Greater London Authority Act 1999 to extend exemptions from the central London road user charge.
Lord McIntosh of Haringey: My Lords, exemptions from the central London congestion charge are primarily a matter for the Mayor. The Government are committed to providing a uniform minimum standard of exemptions or concessions from local road user charges in England. We will consult on their scope and form once we have had an opportunity to assess the experiences gained from the schemes in London and Durham.
Viscount Astor: My Lords, I am grateful to the Minister for his Answer. When the Government consider that matter, will they also consider extending the exemption to low-paid workers in essential services whose transport in and out of London will cost them a considerable sum? Can the Secretary of State, under the powers in the Greater London Authority Act 1999, examine the charging scheme to determine whether it is consistent with national road policies? What method will the Government use to decide whether the scheme is consistent with those policies? Finally, is the Minister aware that, yesterday, many drivers attempted to pay the congestion charge but could not because the website was unavailable and the telephone lines were blocked? Does he think it fair that they should be fined and have to pay an extra sum?
Lord McIntosh of Haringey: My Lords, I suppose that I can choose which two of those questions I answer. On the first question, I think that the noble Viscount, Lord Astor, should be aware that the Mayor's proposed exemptions go wider than the national minimum exemption that we are talking about. In any case, exemptions from the charging system do not fall within the powers of the Secretary of State under the Greater London Authority Act 1999, which relate only to transport strategies. As the noble Viscount knows, the Secretary of State did not raise any objection to the Mayor of London's transport strategies. There is therefore no question of our intervening, and certainly not along the lines of Mr Christopher Chope, in another place, who wanted exemptions for parents taking young children to school, night workers, key workers in the public
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services, small businesses and residents living a short distance outside the charging zone. We would not have a congestion charge if we had all those exemptions.
I hear what the noble Viscount says about payment. I think that it is too early to judge how effective it has been. My understanding is that 100,000 payments have successfully been made, which does not sound too bad.
Baroness Scott of Needham Market: My Lords, I have been waiting a long time for a transport Question and now three have come along at once. Is the noble Lord aware that local authorities across the country are rather bewildered by the Government's ambivalence towards the London congestion charging scheme, given that they legislated for congestion charging in the Transport Act 2000? If they are in favour of congestion charging, why do they not say so? If they are not, why did they legislate for it?
Lord McIntosh of Haringey: My Lords, we have always been in favour of congestion charging in principle. We have always taken the view that it is not conceivable that all types of vehicle should travel on all types of road without any charge for ever. That must be the case. London is a very important start. If London works, then clearly there will be encouragement for many other local authorities to undertake congestion charging schemes. We hope that it works.
Lord Borrie: My Lords, will my noble friend take this opportunity to express at least cautious pleasure at the initial success of the congestion charge so far?
Lord McIntosh of Haringey: My Lords, I think that what I have already said gives the game away. However, caution is necessary. This is, after all, half-term week for a large number of schools in London. It is possible that the very threat of a bloody business which the Mayor expected yesterday might have frightened away some people. I think that it is far too early to make any definitive judgments.
Baroness Gardner of Parkes: My Lords, can the Minister give us an update on when a machine will be available in the Palace of Westminster? We were told that there would be one in April. Has a new date been set?
Lord McIntosh of Haringey: No, my Lords. I am happy to answer for all government departments, but that is a matter for the House authorities.

Road Cleanliness
2.41 p.m.
Lord Marlesford Lord Marlesford asked Her Majesty's Government:
Whether they intend to take any action to improve the cleanliness of Britain's roads.
Lord McIntosh of Haringey: My Lords, we have already introduced a local environmental quality survey to measure litter, a new code of practice for the routine maintenance of local roads, and environmental performance indicators for routine maintenance contracts on trunk roads and motorways. Later this year, we shall introduce a "Car Litter Campaign" to discourage drivers from throwing litter from vehicles.
Lord Marlesford: My Lords, that sounds like an awful lot of action, but does the Minister agree that England's roads in general are filthy, particularly in comparison with places such as France, Italy and Germany, to name just a few of the places to which one travels frequently? Does he agree that the only test of whether the job has been properly done is whether the roads are clean? Will he therefore at least try to find a test, and report back on what the test should be and whether it has been met? The only proper way would probably be to take photographs of a location and then see how long the litter remains there. Will he consider as a method of reducing the prison population using people convicted of offences to clean up litter rather than sending them to prison, which is very expensive?
Lord McIntosh of Haringey: My Lords, Whips in this House are confined to barracks most of the time and do not have much opportunity to confirm from personal experience the cleanliness of roads in this country. As I said, we have already introduced a local environmental quality survey, which I believe is what the noble Lord is talking about, in terms of measuring the amount of litter in order to find out how to deal with it more appropriately. As regards those undergoing community service orders carrying out roadside works, I do not suppose that is ruled out. I hope that the noble Lord, Lord Marlesford, is not suggesting chain gangs though.
Baroness Trumpington: My Lords, do abandoned cars come under the heading of litter? That subject has come up before but I still see the very unpleasant sight of abandoned cars on the side of roads far too often.
Lord McIntosh of Haringey: My Lords, I agree with that. Strictly speaking, the term "litter" refers to actions which are dealt with by sweeping and cleansing. I do not think that one can get rid of abandoned cars in that way. The noble Baroness, Lady Trumpington, is entirely right that there are still far too many abandoned cars. I understand that part of the reason for that is that cars have no scrap value and that charges are levied if one scraps a car at the end of its useful life. The Brussels end-of-life vehicle directives are desirable from an environmental point of view but may cause some people to break the law.
Baroness Gardner of Parkes: My Lords, is the Minister aware that residents of villages such as the one in which I live in Oxfordshire have been told that they can no longer have skips in which to place large
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items of litter as that is against government recycling policy, which is being forced upon local authorities? Does he not think that that will result in much more rubbish which is at present put into skips, such as old pieces of furniture, being left on the side of roads?
Lord McIntosh of Haringey: My Lords, I should like to be given more details of that matter and then write to the noble Baroness, Lady Gardner. That situation sounds most implausible to me. There is a skip permanently situated on the other side of the road in which I live to take exactly the kind of rubbish to which the noble Baroness referred. That is certainly not a matter of government policy. I suspect that it is a case of local authorities passing the blame to someone else, but I may be wrong.
Baroness Scott of Needham Market: My Lords, does the noble Lord share my concern about very low fines being levied by magistrates where successful prosecutions for fly tipping are brought? In a recent case of fly tipping on the highway in Oxfordshire a fine of £100 was levied despite the fact that the maximum penalty was £20,000.
Lord McIntosh of Haringey: My Lords, I do not know the details of the case to which the noble Baroness referred. A fine of £100 sounds minimal to me when one bears in mind that litter wardens can levy a £50 penalty fine and that there is a £2,500 maximum fine on conviction for dropping litter. Fly tipping is clearly a much more serious offence and should be treated accordingly.
Lord Burnham: My Lords, my local roads, of which I can give the noble Lord details, are absolutely foul and have been for some months. I am informed that it is necessary to close the road to clean it and that there is no agreement between the local district council and the county council as to how and when that can be done. Will the Government find some method of ensuring that there is one specific authority which is responsible for that work?
Lord McIntosh of Haringey: My Lords, again, I do not know the details of that case. Certainly, the guidance states that advantage should be taken of road closures to undertake a particular clean-up, but it does not state that one has to wait until the road is closed in order to clean it. There is a problem. The Environmental Protection Act 1990 distinguishes between highway authorities which are the responsibility of counties and litter authorities which are the responsibility of districts. Different councils therefore have different responsibilities. Clearly, that situation can deliver unsatisfactory results. The Government's responsibility is confined to motorways and a few special roads. All-purpose trunk roads are the responsibility of local authorities.
Lord Ezra: My Lords, are the Government giving sufficient support to the Tidy Britain Group, an organisation with which I was actively involved for many years, and which was then doing a very valuable job in dealing with the litter problem?
Lord McIntosh of Haringey: My Lords, the 'Tidy Britain Group is now part of an umbrella organisation with the acronym, ENCAMS. Do not ask me what that stands for, but it includes the Tidy Britain Group and Going for Green. In 1999 it published a valuable code of practice on litter and refuse which the Government take very seriously and support.

Iraq
2.48 p.m.
Lord Howell of Guildford Lord Howell of Guildford asked Her Majesty's Government:
Whether they endorse the seven links between Iraq and international terrorism identified by Secretary of State Colin Powell at the United Nations Security Council on 5th February.
The Minister for Trade (Baroness Symons of Vernham Dean): My Lords, Her Majesty's Government do not recognise the reference to seven links in the noble Lord's Question, although seven separate groups were mentioned by the United States Secretary of State. Secretary of State Powell covered a number of broad issues in his account of the relationship between Iraq and various terrorist organisations. He also dealt with some specific points arising from those issues. As my right honourable friend the Prime Minister made clear in another place on 5th February, the extent of links between Iraq and terrorist organisations varies and our understanding of those links is evolving. Moreover, we are getting fresh intelligence on those matters all the time.
Lord Howell of Guildford: My Lords, I am sure that the noble Baroness agrees—as we do on this side of the House—that it is the business of government to govern and that that sometimes means pursuing deeply unpopular and difficult policies. But does that not make it all the more necessary for the Government to have a clear and consistent line about what they are proposing in relation to Iraq? Would it not have been much better if from the start emphasis had been put—as did Colin Powell at the Security Council—on the converging interest between Iraq and international terrorism, an emphasis made more vivid by the remarks of Osama bin Laden on the brotherhood between Iraq and terrorism? Is the Prime Minister's comment last Saturday that he wished to see the removal of Saddam and to see the world rid of Saddam Hussein, a recognition of a desire for regime change and a shift of policy or, indeed, has the policy shifted hack again this morning?
Baroness Symons of Vernham Dean: My Lords, a government should always do what they believe to be right. The noble Lord referred again to the tapes of Osama bin Laden, which we discussed last week. They have all the hallmarks of being authentic. It seems that the message that Osama bin Laden gave was one of making common cause, but I am bound to say that the message itself is pretty incoherent, as the noble Lord will know if he studied it. When it is not incoherent, it is pretty facile.
I have some difficulty in answering the noble Lord's original Question, as he will have discerned, because I cannot say with any certainty what he is really inviting Her Majesty's Government to endorse or not. Any discussion about such points has to be based on reliable intelligence. For reasons that all noble Lords will understand, I am unwilling to discuss that on the Floor of the House. It would be quite inappropriate to do so. I shall suggest what would be appropriate. lithe Opposition, the Liberal Democrats and the Cross-Benchers wish it, I have arranged for a briefing for a member of each Bench on an appropriate basis to discuss the matters further on Privy Council terms.
Lord Richard: My Lords, it is all very well to arrange briefings officially for the opposition parties and the Cross-Benchers but—I have to ask—what about my noble friend's Back-Benchers? Is she aware that one cannot go to war, which is what we are talking about, on the basis of a nod and a wink and art assurance from the Dispatch Box that if we all knew what the Government know we would be in favour of it? There has to be some concrete evidence, and that evidence has not yet been forthcoming.
Baroness Symons of Vernham Dean: My Lords, I find it quite extraordinary that my noble friend is suggesting that I for a moment would want anyone to go to war on the basis of a nod and a wink. He will know that it is the custom on occasions in such circumstances to offer briefings on Privy Council terms for senior Members of the House. I have done so on the basis of one per Bench. So far as our own party is concerned, it is Ministers who are appropriately briefed on such matters.
I hope that those on the other Benches will feel it appropriate to take up my offer. It is made in good faith and, I am bound to say, on my own initiative and has been negotiated on that basis. If they wish to do that, I shall be very happy. However, it is nonsense to say that the Government are suggesting for a moment that we should go to war on the basis of a nod and a wink. That suggestion was unworthy of my noble friend.
Lord Wallace of Saltaire: My Lords, I thank the Minister for her offer and for the extremely carefully worded Answer that she gave to the Question. As the noble Lord, Lord King, said last week, we need to ensure that the information given is entirely accurate and carefully phrased throughout if we are to carry the public with us.

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Does the Minister accept that Colin Powell's speech, which the Question addresses, although indicating that there has been some contact between the Iraqi regime and a number of terrorist networks, does not suggest that there is a close or intrinsic link between Iraq and Al'Qaeda? Does she accept the point that we on these Benches have made throughout such discussions, which is that intervention in Iraq and the struggle against a transnational terrorist network are not the same? Unfortunately, President Bush suggested in his Louisiana speech last week that they were. One needs to be very careful not to confuse one too much with the other.
Baroness Symons of Vernham Dean: My Lords, there is one matter on which I am absolutely certain. It is that when I deal with such matters from the Dispatch Box, I must do so as accurately and honestly as I can and, at the same time, I may not expose intelligence sources in the House. As I have indicated, I find it enormously difficult to answer the Question from the noble Lord in the terms that he would wish and that I would wish without getting into intelligence matters.
The noble Lord, Lord Wallace of Saltaire, is right. The links are varied. They are not simply links with Al'Qaeda, but with other terrorist organisations that we have discussed in the House. Some of those organisations themselves are linked to Al'Qaeda. In the interests of accuracy, I cannot say any more about that without intruding into intelligence matters, hence the offer that I made.
Lord Blaker: My Lords, I shall not mention anything that is not already in the public domain. In view of the very detailed and full evidence that Secretary Powell gave to the Security Council on 5th February about terrorist links between Al'Qaeda and Iraq, how does the noble Baroness explain the fact that on 21st January the noble Baroness, Lady Amos, said to me:
"We have certainly seen no evidence of a link between the Iraqi regime and Al'Qaeda"?—[Official Report, 21/1/03; col. 571.]
Will the Minister assure noble Lords that co-operation on intelligence matters between the United States and this country is continuing?
Baroness Symons of Vernham Dean: My Lords, as the noble Lord would expect, there is a great deal of traffic in intelligence terms between ourselves and the United States of America. There always is. My term in office in both the Foreign Office and the Ministry of Defence leads me to believe that it happens on a daily basis.
The problem that we have with the Question is that Secretary of State Powell did not talk only about links with Al'Qaeda but about links with the al-Zarqawi network, which some believe to be linked to Al'Qaeda. That could indeed be described as a link with Al'Qaeda. He went on to talk about another organisation, Ansar al-Islam. There are links through other organisations. On that basis, I hope that the noble Lord will accept that I am trying to be as clear as
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I can, but I do not want for a moment to say anything inaccurate that might unwittingly mislead any noble Lords.
Lord Hylton: My Lords, is it not the case that Saddam Hussein has organised large payments to the families of dead suicide bombers? Is that not a singularly unhelpful action?
Baroness Symons of Vernham Dean: Yes, my Lords. At last I can answer something unequivocally. Iraq has a long record of support for Palestinian rejectionist organisations including, for example, the Palestine Liberation Front. It makes regular payments to the families of suicide bombers, and we have evidence of that.
Lord Howell of Guildford: My Lords, to keep up her track record, can the noble Baroness at least answer my question about the Prime Minister's explicit call for the removal of Saddam? Is that now the policy? It is important to know.
Baroness Symons of Vernham Dean: My Lords, the Prime Minister has said throughout that it would be highly desirable to see the back of Saddam Hussein. What he has not done is say that it would be an objective of military action. There is no equivocation, shifting or moving of the goalposts. I understand that it is important to be clear about such issues, but I am bound to tell the noble Lord that trying to find the edges at which to chivvy away is not always as helpful as I know that he would wish to be on the subject.
The fact is that the Prime Minister wishes to see the back of Saddam Hussein. I wish to see the back of Saddam Hussein, and I am sure that the Opposition do. The issue is whether it would be an objective of military action. It would be a very welcome side benefit of military action but military action, should it take place, would be about weapons of mass destruction.

Transport in London
2.59 p.m.
Lord Peyton of Yeovil Lord Peyton of Yeovil asked Her Majesty's Government:
Whether, following the statement by the Secretary of State for Transport that the Government and the Mayor of London have agreed to work together, they will inform the House how and when the £15 billion which they have allocated to transport in London will be spent.
Lord McIntosh of Haringey: My Lords, the Government have made an unprecedented long-term grant commitment to London Underground, averaging £1 billion a year over the period of the 10-year plan. In addition, London Underground Ltd is forecasting fare revenues averaging £1.2 billion a year over the same period. That funding, together with private sector financing, will permit the substantial

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increase in investment in improved service performance that will be delivered through the Tube modernisation plans, the first contract of which is now under way, and the details of which have been well publicised.
Lord Peyton of Yeovil: My Lords, the Government seem to be living in the future tense. Is the Minister aware that the impression given by the Government is that they have been caught in the web of their own very complicated organisation, that their schemes and plans are so involved and intricate that no one can trace their outlines and that the only people who have benefited thus far are consultants, who are not noted as an under-nourished section of the community? The Government are fond of singing the mournful dirge that it is all their predecessors' fault. If the situation that they inherited was anything like as bad as they suggest, then why in the name of conscience have they wasted so much time before taking anything that can possibly be called action?
Lord McIntosh of Haringey: My Lords, my Answer was in the future tense because the Question was in the future tense. If noble Lords look at the Question, they will see that that is the case. I am not making claims about individual administrations. I believe that the neglect of investment in London transport goes back over 20 or 30 years at least, and that covers more than one administration. There is no particular party-political point there.
As to the delays in putting matters right, which is now happening—as I said in my first Answer, one contract has already been let—yes, it has taken far too long. Part of the reason for that has been the complication of reaching agreement on the details of how to do it; part of it relates to financing. But it has also partly been caused by the uncertainty brought to the matter by the Mayor of London in seeking two expensive and time-consuming judicial reviews and attempting to undermine the state-aid applications which were necessary. But it is not all their fault; we are all at fault in this.
Baroness Scott of Needham Market: My Lords, will the noble Lord comment on the prospect of private sector investment in London's major infrastructure projects? Is he aware that private companies are dismayed at the lack of government leadership on major projects such as Thameslink, CrossRail and Airtrack and that, frankly, they do not have any confidence in the future of their investment in transport projects?
Lord McIntosh of Haringey: My Lords, I am not aware of that. If the noble Baroness, Lady Scott, has evidence to give to me about those who are dismayed, I have no doubt that she will do so. Again, serious delays have occurred in many of the major transport infrastructure projects. From the second part of her question, I take it that she is talking about transport projects. CrossRail, for example, was originally to be undertaken through the private Bill procedure. When
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that did not work, we had to start again. In this country, it takes far too long for such projects to be undertaken. Again, we are all responsible for that. None of us has any let-out.
Lord Marsh: My Lords, does the noble Lord agree that projects such as CrossRail form a crucial part of the totality of the London plan? If there is uncertainty over those, then a major question mark hangs over the plan in total, which amounts to £115 billion sterling.
Lord McIntosh of Haringey: My Lords, I do not know what the noble Lord, Lord Marsh, refers to when he talks of the "London plan", unless he means the 10-year plan for transport for the whole country. I do not believe that he is going back to Sir Patrick Abercrombie. Of course, projects such as CrossRail and Thameslink 2000 are essential parts of any 10-year planning. I believe that the Government should be congratulated on the fact that we have made this commitment over a 10-year period. I do not believe that any previous government have ever given the assurances that we have to future funding for public investment projects.
Viscount Goschen: My Lords, can the Minister tell the House the total cost of the dispute between the Government and the Mayor over the Tube PPP, including both sides' legal costs? Secondly, can he tell the House exactly how far behind the original schedule the Tube modernisation is now?
Lord McIntosh of Haringey: No, my Lords, I cannot give an answer to either of those questions. Clearly, when there were delays, for example, during the period of judicial review, that period was not entirely fallow; other work was being done. Therefore, it is difficult to identify a number of months or even years which can be attributed unequivocally to the Mayor's actions. The same applies to much of the expenditure involved in defending the Government against the threat of legal action or the threat of action under state-aid policies.
Lord Bradshaw: My Lords, does the Minister share my concern about the effect on transport in London of the closure of the Central and Waterloo & City lines? Will he give the House an assurance that, when the period of closure has ended, a proper inquiry will take place into why the delay has been so long? When similar things occurred on British Rail—serious incidents such as axle failures in a class of locomotive—it was possible, using ultrasonic means, quickly to weed out the trains which did not work and to restore the service within a day or two.
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Bradshaw, will be pleased to know that the Waterloo & City line opened again an h our-and-a-half ago. An investigation is being undertaken by London Underground and the Health and Safety Executive about the causes of the derailment on the Central line.

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Clearly, until we have a definitive answer about the causes, it is not possible to be definitive about how long it should take to put matters right.
Viscount Astor: My Lords, is the Minister aware that in the first four years of his Government's period of office spending on the Tube actually fell? When can we finally see some results of this new agreement between the Government and the Mayor?
Lord McIntosh of Haringey: My Lords, I wondered whether anyone would get round to asking about what was implicit in the original Question of the noble Lord, Lord Peyton. Indeed, under the first two years' regime of this Government, investment projects of the kind that we are discussing had a long lead-in period. I do not deny that in the first two years or so we were still working on previous government policies. I am sorry if the noble Lord, Lord Peyton, does not like that, but we are stuck with it. If the noble Lord wants to know the elements of the 15-year plan, which has now started, we are talking about £16 billion over a 15-year period: £8.5 billion expenditure on trains and signalling; £4 billion on track; and £3.5 billion on stations. If I had time, I could go into what that will produce in terms of reduced delays, new trains, new track and improved safety.
Lord Peyton of Yeovil: My Lords, the Government may have been thinking for three years but what on earth have they been doing in the second three years? I suspect that the answer is: nothing.
Lord McIntosh of Haringey: My Lords, I have been as open with the House as I possibly can be. By that, I do not mean that I am concealing anything. But I am saying that moving on from a long period of neglect of public sector transport infrastructure in London is an intrinsically slow business and it has taken longer than it should have done. We have taken our share of responsibility for that.

Asylum Seekers
3.9 p.m.
Earl Russell Earl Russell asked Her Majesty's Government:
Whether the monthly number of applications for asylum in the United Kingdom is something for which the United Kingdom Government can properly be held accountable.
Lord Bassam of Brighton: My Lords, the number of asylum seekers arriving in the United Kingdom is a result of a number of factors, including government policy. We are determined to reduce the number of unfounded asylum applications. The measures we introduced in the Nationality, Immigration and Asylum Act 2002 and the subsequent robust measures to ensure the integrity of our borders are testament to that.
Earl Russell: My Lords, perhaps I may ask the Minister to comment on two alternative propositions. Does he agree that the main determinant of the number of asylum seekers is conditions in the refugee-producing countries? Is he aware that the most rapid increase in asylum applications was between 1989 and 1991 when it amounted to 400 per cent? Therefore, is not an interpretation which risks describing the fall of the Iron Curtain as a case of Home Office inefficiency necessarily defective? If the Minister is talking of deterring, can he give the House any evidence whatever that the contents of the asylum Acts from 1991 to 2002 are known in any of the refugee-producing countries?
Lord Bassam of Brighton: My Lords, as regards the first question asked by the noble Earl, as a government we accept that the refugee-producing countries are the major determinant of who visits our shores. As to the second question, our Government make every effort to ensure that measures we put into legislation which seek to explain what we are about are broadly known. Through our embassies and delegations we ensure that that information is widely disseminated.
Viscount Bridgeman: My Lords, does the Minister not agree that 18 months after the present Home Secretary came into office the number of asylum seekers has reached record levels; that no accommodation centre has received planning permission; that there is no sign of a bilateral agreement with France over asylum seekers, and that the evidence that terrorists are abusing the system is there for all to see?
On the last point, will the Government now take firm steps to enter a reservation under Article 3 of the ECHR to allow the UK to deport foreigners who threaten national security, an idea apparently first trailed by the Prime Minister on 26th January in "Breakfast with Frost- but first advocated more than a year ago by my right honourable friend Mr Oliver Letwin?
Lord Bassam of Brighton: My Lords, I am interested in the noble Viscount's response to my initial comments. We have only just enacted the Nationality, Immigration and Asylum Act. Accommodation centres were enabled by that legislation. It is the case that we are actively pursuing the question of accommodation centres in a number of places across the country. It is also the case that that will have to go through proper planning procedures. I would expect the noble Viscount to agree that that should be the case, not least because a number of residents in a number of those authority areas have objected to the location of accommodation centres.
As regards the other points raised by the noble Viscount, as a government we are endeavouring to ensure that we have in place robust measures. We have put in place a number of new pieces of legislation and instruments. For instance, we now have juxtaposed controls. We have a system which enables us to detect potential breaches of our control over people coming

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into this country. We have taken steps with the French to close abuses such as those that were being visited through Sangatte. We have also ensured that we now have a strategy which enables us to prevent people coming in through the use of visas. We are putting in place robust measures, and we look to the noble Viscount and the party opposite for their support.
Lord Alton of Liverpool: My Lords, does the Minister agree that the system was brought into disrepute last week when a woman who has lived in this country for nearly 50 years was threatened with deportation to the United States? That woman lives in Suffolk and has never travelled out of this country. By contrast, The Times today reports that three members of the Taliban, including one militiaman, who paid £9,000 to people smugglers to come to this country, are being offered political asylum.
Lord Bassam of Brighton: My Lords, the first case referred to by the noble Lord is now well known. I believe all Members of your Lordships' House will welcome the fact that the Minister gave a full apology to the woman, which is quite right. I am sure that everyone would agree that it was an appalling case. Yes, there are always difficulties when applicants make a case for asylum. We have to go through due process. I have been confronted many times at this Dispatch Box, as have other Ministers, by noble Lords obliging us and forcing us to go through due process, to ensure that we do so. It is right that we do that, even though there are difficult cases.
Lord Corbett of Castle Vale: My Lords, can the Minister tell the House the stage reached in the discussions started by the United Nations High Commission for Refugees concerning plans to deal with asylum applications in the region in which asylum seekers arrive?
Lord Bassam of Brighton: My Lords, discussions and negotiations in that regard are ongoing. I cannot give the noble Lord up-to-date information. However, I shall endeavour to write to him advising him of the stage reached in those discussions and negotiations
Lord Goodhart: My Lords, the policy of the Conservative Party in relation to Article 3 of the European convention is to deport asylum seekers back to countries where they are likely to be tortured. Does the noble Lord regard that as acceptable?
Lord Bassam of Brighton: My Lords, of course we do not regard that as acceptable. We must take a balanced approach. That is exactly the way the Government have proceeded throughout. We want to be fair in the application of legislation and in the operation of protocols and international agreements. However, we must ensure that our system has integrity. That is why we have taken the legislative steps we have.
Lord Waddington: My Lords, is there not a simple answer to the proposition advanced by the noble Earl, Lord Russell, in his Question? Have not a significant number of people who apply for asylum here come across the Channel from France? Is it not plain from the fact that they come here from France that they must be either genuine refugees who failed to make their claim for asylum in France or people who have no claim to refugee status? Does it not follow, therefore, that the Government are accountable for the number of asylum applications because they could take steps to try to discourage such people from coming here?
Lord Bassam of Brighton: My Lords, I thought I made plain that we had been doing exactly that. I am grateful to the noble Lord for assisting me in my Answer.

European Council, Brussels
3.16 p.m.
Lord Wallace of Saltaire: My Lords, I beg leave to ask a Question of which I have given private notice; namely:
Whether Her Majesty's Government intend to make a Statement on the European Council meeting held in Brussels on Monday 17th February.
The Lord Privy Seal (Lord Williams of Mostyn)::VI y Lords, my right honourable friend the Prime Minister plans to make a Statement to the House of Commons on the European Council this coming Monday. We have placed a copy of the European Council's own statement in the Library. We do not propose to preempt the Prime Minister's customary Statement to the House of Commons by making a Statement about the European Council to this House this week.
We have had extensive recent opportunities to debate policy towards Iraq, including the European aspects. My noble friend Lady Symons has just answered a Starred Question on the topic at some length. There are two topical Questions tabled for tomorrow, addressing aspects of the question. Furthermore, I am happy to tell your Lordships that the usual channels have agreed that there should be a further full day's debate on Iraq next Wednesday.
Lord Wallace of Saltaire: My Lords, does the noble Lord the Leader of the House recognise that in this very fast- moving situation we need to ensure that the Government keep Parliament as a whole, whichever Chamber is meeting, as well informed as possible? Does he accept that any suggestion of avoiding Parliament does not help to carry rather sceptical public opinion with the Government?
I understand that the Prime Minister held a one-and-a-half hour press conference this morning on Sky Television. I have just heard that the Foreign Secretary is to make his second speech in two weeks to a London

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think tank. It would be preferable if some of those speeches were made to Parliament for an open and full debate.
Do Her Majesty's Government welcome the statement yesterday? Do they attach importance to re-establishing consensus among EU member governments, including, if possible, consensus among the four EU member governments currently serving on the United Nations Security Council?
Lord Williams of Mostyn: My Lords, despite outward appearances, I was not born yesterday. The noble Lord is trying to get me to make a Statement on a topic on which I have said we are not making a Statement. The Foreign Secretary made a full Statement to the Commons last Thursday. The Prime Minister will make his Statement this coming Monday. We shall have a full day's debate next Wednesday. It cannot reasonably be said, although it might be said on a partisan basis, that this House does not fully and regularly discuss these matters.
Lord Strathclyde: My Lords, most Members of this House will be deeply disappointed by that answer from the noble and learned Lord the Leader of the House. Given the information we have just received from the noble Lord, Lord Wallace of Saltaire, that the Prime Minister had a one-and-a-half-hour press conference this morning, is it not right that he is treating this House with the contempt, of which we have so often accused him in the past?
The noble Baroness, Lady Symons of Vernham Dean, the Deputy Leader of this House, is widely respected in all parts of it and has shown again this afternoon her ability to come to the Chamber and make a Statement if that is the Government's policy.
How can people viewing the debate outside the House possibly be convinced of the case for going to war if this Government will not trust Parliament with the information?
Lord Williams of Mostyn: My Lords, this is completely unreal. The Prime Minister gave his monthly press conference this morning and he responds to questions put to him. Jack Straw made his Statement last Thursday. We shall have a full day's debate next Wednesday. To suggest that the Prime Minister is being derelict in his duties to Parliament is significantly unfair.
Baroness Williams of Crosby: My Lords, I very much appreciate the arrangements that the Leader of the House has made for further Statements and debates, which I am sure is appreciated throughout the House. Perhaps I may draw to his attention the fact that this is probably the most dangerous situation this country has faced since the Cuban missile crisis; that things are moving extremely quickly—literally from day to day everything changes; and that the outcome of the European summit is completely relevant to our discussions during the next few days and indeed it has a very important part to play in them. Further, can he
1026
say why this House is not regarded, when another place is in Recess, as an appropriate place to hold the executive to account?
Lord Williams of Mostyn: My Lords, no Minister from the Lords attended the relevant meeting. The Prime Minister was there with the Foreign Secretary. In our democracy, with an elected and a non-elected Chamber, it is not right, in due conscience and respecting the Commons, to expect a Prime Ministerial Statement to be pre-empted in this Chamber by a Minister who was not even there.
Lord Marlesford: My Lords, an important constitutional point has been raised. Is the Leader of the House saying that it is in principle never appropriate for the Government to make a Statement to this House of Parliament when the other House is not sitting? Or is he saying that in this particular case no Minister who sits in this Chamber is competent to make a Statement?
Lord Williams of Mostyn: My Lords, I make neither proposition; nor could any rational mind come to the conclusion that I had, as the noble Lord will doubtless reflect. I have said that the Prime Minister will make a Statement next Monday. It is wrong for the Prime Minister's Statement to be pre-empted. Frequently I repeat his Statements, but neither I nor my noble friend Lady Symons had the benefit of being at the meeting. It is right that Parliament should be fully informed first by the Prime Minister.
Lord Howell of Guildford: My Lords, is not the noble and learned Lord—perhaps I may say, very uncharacteristically—slightly missing the point? Is he not aware that yesterday's meeting was of vital and immediate significance and that major issues were discussed which will affect us all? By next Monday—as the noble Baroness, Lady Williams of Crosby, said—things will have changed radically. The Statement next Monday will probably be on completely different matters. Parliament is now sitting. Surely, it is entitled to hear some account of the vital decisions, difficulties and problems—particularly with our neighbour and partner France—that were developed and announced at yesterday's meeting. These are very important matters. Parliament should hear about them.
Lord Williams of Mostyn: My Lords, that is precisely why I suggested to the working practices group, which I set up, that topical Questions should be asked. It turns out that I was right so to do, because tomorrow's topical Question of the noble Lord, Lord Howell of Guildford, is to ask Her Majesty's Government what is now their policy on relations between the European Union and NATO. It cannot be said with any hope of belief that this House is not regularly informed in Statements and that Answers to Questions are not given. That simply cannot be said.
Earl Russell: My Lords, "informed" is not really a sufficient word. Mr Peter Riddell is technically correct

1027
that war is a matter of royal prerogative and rulers may undertake it without consulting Parliament. But is the Minister aware that Ministers who have done that, have universally done so at their own peril? Will he give an undertaking that no British troops will be involved in action until both Houses have had an opportunity to debate and, if they wish, to vote on the proposal that they should be so involved?
Lord Williams of Mostyn: My Lords, I am not giving such an undertaking. The Government's position has been made abundantly plain by the Prime Minister and by Jack Straw on several occasions. I return to my self-congratulatory theme; the very question put by the noble Earl is in fact the second topical Question for tomorrow. So the system seems to be working rather well.

Health (Wales) Bill
3.25 p.m.
Lord Evans of Temple Guiting: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That it be an instruction to the Grand Committee to which the Health (Wales) Bill has been committed that they consider the Bill in the following order:

Clause 1,

Schedule 1,

Clause 2,

Schedule 2

Clauses 3 to 7,

Schedules 3 and 4,

Clauses 8 to 10.—(Lord Evans of Temple Guiting.)

On Question, Motion agreed to.

Crime (International Co-operation) Bill [H.L.]
Lord Grocott: My Lords, I beg to move the Motion standing in the name of my noble friend Lord Filkin on the Order Paper.
Moved. That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 to 15,

Schedule 1,

Clauses 16 to 31,

Schedule 2,

Clauses 32 to 54,

Schedule 3,

Clauses 55 to 89,

Schedule 4,

Clause 90,

Schedules 5 and 6,

Clauses 91 to 95.—(Lord Grocott.)

On Question, Motion agreed to.

Community Care (Delayed Discharges etc.) Bill
3.26 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Hunt of Kings Heath.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Boston of Faversham) in the Chair.]
Clause 3 [Duties arising where a notice under section 2 is given]:
Baroness Noakes moved Amendment No. 67:
Page 3, line 45, at end insert—
"\) The Secretary of State shall specify to the bodies charged with inspection of health and social services that they should monitor, at regular intervals, the impact of this Act on patients and their carers."
The noble Baroness said: I return to matters that kept us much engrossed yesterday in Committee. In moving Amendment No. 67, I shall also speak to Amendment No. 68. Both amendments concern reports as to how the Bill once enacted and implemented will work in practice.
Amendment No. 67 inserts a new subsection at the end of Clause 3, which would require the Secretary of State to specify to the bodies charged with inspection of health and social services to monitor the impact of the Bill on patients and their carers. Such monitoring should be carried out at regular intervals.
Under current arrangements the bodies would be the Audit Commission, the Commission for Health Improvement and the Social Services Inspectorate. The Secretary of State has a penchant for rearranging nameplates and he already has plans to turn the Commission for Health Improvement into the commission for health audit and inspection, taking over both the SSI and some of the Audit Commission's functions. We do not know what the Secretary of State will have renamed or reorganised by this time next year and so the amendment is deliberately drawn in broad terms without naming the bodies themselves.
Amendment No. 67 picks up the general theme of "what about patients and carers" in the Bill. That subject occupied us much yesterday. The patient is stuck in the middle between the NHS and local authorities. The worst outcome from the Bill would be that patients suffer. There are, as we discussed yesterday, many possibilities that lead in that direction. Patients could be discharged too early and have to suffer readmission. It is the patients who suffer readmission and not hospitals or local authorities. Patients could be placed in a care setting that is inappropriate for them or which goes against that which they themselves desire. Or they could be discharged home without adequate support services from the NHS, local authorities or both. Carers could

1029
also suffer, especially if the patient is discharged without a care package that sufficiently supports the patient, the carer or both.
Yesterday, we had useful debates about patients and carers. The right reverend Prelate the Bishop of Hereford, who is not in his place today, referred to the,
"widespread feeling that patients are treated as commodities".—[Official Report, 17/2/02; col. 975.]
The noble Baroness, Lady Andrews, tried to convince us that the Bill was all about patients' and carers' rights but, in the same breath, was more concerned about amendments causing "operational difficulties" for the NHS. We were unconvinced that the Bill will be good for patients and carers.
Amendment No. 67 would result in external scrutiny of the impact on patients and carers. The inspection bodies would feed back problems discovered at a local level and, if they felt it appropriate, could make public reports about generic issues. Either way there would be some counterbalance to the thrust of the Bill, which tends to marginalise the individuals who are at the heart of the processes.
Amendment No. 68 deals with parliamentary accountability. It requires the Secretary of State to report annually to Parliament on outcomes for patients. That clearly complements any reports from the inspection bodies under Amendment No. 67. It would allow Parliament to keep the Bill's impact under review.
I remind the Minister that almost all of the organisations that have commented on the Bill are unconvinced that the outcome for patients and carers will be benign. The Government have proposed no external reporting or scrutiny mechanism to keep the practical impact of the Bill under review. If the Government are confident that the Bill will be a surefire hit, they have nothing to fear from the amendments. However, if they resist the amendments, we shall conclude that they, too, fear that for the sake of clearing a few more hospital beds, misery is in store for patients. I beg to move.
Lord Clement-Jones: I strongly support the amendments, ably introduced by the noble Baroness, Lady Noakes. The amendments attempt to define the relationship between the various public bodies charged with inspection of health and social services, the number of which has grown over the years. Indeed, as the noble Baroness, Lady Noakes, said, we never know what new bodies may be created in the next few months or possibly relabelled in the NHS reform Bill to which we all look forward. They all have their part to play within both social services and the NHS.
It is also necessary—this is where the second amendment is so important—to ensure proper parliamentary scrutiny of the direct effects of the Bill and, in particular, to ensure adequate monitoring of its effects on individuals. It is not too much to ask both that there should be parliamentary scrutiny and that those inspection and audit bodies should be
1030
responsible for monitoring how this highly controversial Bill will impact on individuals once it is introduced.
Almost everyone but the Government believes that the Bill will mean that patients could be forced into care situations not of their choice or possibly inappropriate for them. Unless there is some monitoring of whether, for instance, an older person can later move from a care home, he or she could be left indefinitely in a home to which they did not choose to go. That is where monitoring is badly needed. In respect of those discharged too quickly from hospital to their own homes, we are aware that the emergency readmission figures to hospital, which are monitored, are just the tip of the iceberg compared to the other problems caused. We are concerned that such problems will increase as a result of greater pressure on discharge caused by the Bill.
As well as the welfare of the patient, it is also important to monitor the demands placed on the carer and to ascertain how frequently caring for someone discharged from hospital without sufficient support undermines the health and long-term capacity to care of the carer. Attention should be given to the many instances where the person discharged is the main carer for another person. We need monitoring of the effect of rapid discharge back to their caring responsibilities on their health and the welfare of the cared-for person.
Research published in 2001 by Help the Aged showed that 75 per cent of co-resident older carers received no regular support from health or social services. That is an interesting and unfortunate statistic. I hope that the Minister will pay careful attention to the amendments.
Baroness Greengross: I support Amendment No. 68 and I am sympathetic to Amendment No. 67. We need more detailed information on hospital discharge and the impact of the Bill—from whichever date it is implemented. The recent National Audit Office report demonstrated that clearly. For instance, it should be easier to obtain information on delayed discharge and emergency readmission by primary care trust area. That information is still not placed on the departmental website. Amendment No. 68, or something worded to that effect tabled by the Government, is therefore appropriate.
As for Amendment No. 67, bodies such as the newly merged CHI and the National Care Standards Commission should in any case be taking an active interest, not least because of the Bill and in response to the recent NAO report and the earlier Audit Commission report.
The Lord Bishop of Chelmsford: I clearly touched a nerve yesterday when I referred to patients being described as commodities. That is a valid interpretation of some of the thrust of the Bill. So I warmly welcome the amendments, because they

1031
underline the importance of regular monitoring of the care of patients and of carers themselves. I wholeheartedly support both amendments.
Baroness Finlay of Llandaff: I support the amendments and I am grateful to the noble Baroness, Lady Noakes, for the way she introduced them. In Wales, a database on delayed discharges is currently held by the Assembly government. It has been in operation since April 2001. It is only as good as the information put into it, but its existence means that it can be interrogated. It shows that at any one time about 10 per cent of hospital beds are occupied by delayed discharges. The Government have constantly called for evidence-based clinical practice. Evidence-based medicine has been the subject of many editorials. The amendments represent a plea for evidence-based management within the NHS and in the relationship between the NHS and social services. It is essential t hat we have evidence-based decision-making.
Lord Hunt of Kings Heath: I have no problem at all with the suggestion that monitoring of the Bill's introduction must take place. I give the assurance that monitoring will indeed take place. The noble Baroness, Lady Noakes, was rather unkind about the Government's intention in future legislation. She may think that we are interested in name plates, but if I go back over the record of the previous government during 18 years I lose count of the number of restructurings and changes they made to the health service.
The forthcoming legislation, which I know we shall all thoroughly enjoy, is not about name plates; it is about enhancing the moves that the Government have already made to set up robust, independent inspection. Setting up the Commission for Health Improvement and the National Care Standards Commission and the enhanced role of the Social Services Inspectorate are all part of national architecture, setting national standards and having robust, independent inspection, under which local services can be given much greater freedom to operate. I do not recognise the right reverend Prelate's description of patients as commodities under the Bill. We do not want to go over the ground that we debated so extensively in many amendments yesterday; but if the right reverend Prelate looked at current practice in many parts of the country, it is there that he would find that patients are not put first. There he will find self-serving statutory authorities that have failed in so many cases to get their act together; and where patients have been left inappropriately on acute-hospital beds because of minor issues that could have been sorted out if people had tried to.
The fact that local NHS authorities throughout the country, despite the difficult circumstances under which many operate, can ensure that there are effective delayed discharge procedures has convinced me more than ever that we are right to take the robust approach in the Bill. But I accept the need for monitoring. The Social Services Inspectorate will continue its role of monitoring the quality of services to older people. In
1032
addition, we have performance indicators both for the National Health Service and for social care, which cover emergency re-admissions and home care to help people to live at home. We are introducing indicators on speed of service provision. Those who are concerned that patients with complex care needs will be transferred into interim care under this Bill will be pleased to know that we will also set targets on how long they have to wait for community care services compared to other members of the public. A whole-system approach will be taken.
The current inspection bodies already monitor the quality of discharge arrangements. We expect that the new bodies—the commission for healthcare audit and inspection and the commission for social care inspection—on which we will introduce legislation to your Lordships' House in this Session, will strengthen the accountability of those responsible for the commissioning and delivery of health and social services. The Government will take great care to ensure that the reports by those inspectorates and the information that they produce are considered and reviewed carefully. We do not need to legislate in the way suggested because we already have the monitoring processes and the inspectorates. We will improve the system in future legislation and we intend that the two new inspection bodies will report to Parliament. Through the action that the Government already intend to take, we will meet what Committee Members seek to achieve. I have no hesitation in saying that monitoring will be an important part of the duties of the inspection bodies.
Lord Clement-Jones: What guarantee is there that the totality of the system will be looked at? Many will be worried that the monitoring process will be like two railway lines meeting; that is to say, instead of looking across the inter-change between social services and healthcare, one inspection body might look at healthcare and another at social services, but no inspection or audit body will look across the piece. Who is empowered to do that?
Lord Hunt of Kings Heath: That is a fair point. I agree that it would not be satisfactory simply to have a health service inspectorate and a social care inspectorate looking only at their separate areas. We expect the inspectorates to work together. It is instructive that, as part of our response to the Laming report into the tragic case of Victoria Climbié, we already identified a joint role for the current inspectorates. I very much agree that there should be a whole-system approach.
Baroness Finlay of Llandaff: I commend to the Committee the system in Wales, which attempts to have joined-up government. The National Assembly for Wales government database shows, for example, that the discharge of 22 patients from my own hospital was delayed over 10 weeks between May and July in 2002, with an average delay of 14 days. The reasons for seven delayed discharges was waiting for a social services care package or settlement. The other reasons

1033
were health, equipment, waiting for a place in a nursing home or continued care funding, and awaiting a transfer. Such a database allows social services delays to be linked to NHS delays.
Baroness Noakes: I thank all Members who took part in this short debate, including those who supported the amendments. In particular, I thank the noble Baroness, Lady Finlay, for her contribution on evidence-based approaches. The Bill is not evidence-based; it is assertion-based. We need more evidence. Amendments Nos. 67 and 68 concern evidence after the enactment of the Bill regarding its impact on patients and carers.
The right reverend Prelate spoke about patients being treated as commodities in this Bill. I say to the Minister that that is what most people believe. He and his colleagues are in denial about that and the impact that the Bill will have on people. They see it much more in terms of systems and processes, not of people, who are at the heart of the Bill.
The Minister gave an assurance that monitoring would take place under various mechanisms that already exist. But we are being asked again to accept that something is implicit in the system, rather than have an explicit commitment from the Government. We need to be clear about the impact on patients—not on processes; not on statistics; and not on the many aspects that could be covered by the inspection bodies. That is why Amendment No. 67 was drafted to ensure that the Secretary of State specifies to the inspection bodies that they should monitor the impact of the legislation on patients and carers. It is also why Amendment No. 68 would provide that the Secretary of State shall report to Parliament on the outcomes for patients.
We are always asked to accept things on trust. We are told that provision will happen; that there are existing mechanisms, and so on. I do not think that we should. The impact of the Bill on patients is just too important. I wish to test the view of the Committee.
3.48 p.m.
On Question, Whether the said amendment (No. 67) shall be agreed to?
Their Lordships divided: Contents, 110; Not-Contents, 109.

Division No. 1

CONTENTS

Aberdare, L.

Brooke of Sutton Mandevile, L.

Ackner, L.

Brougham and Vaux, L.

Addington, L.

Burnham, L.

Alderdice, L.

Buscombe, B.

Allenby of Megiddo, V.

Caithness, E.

Alton of Liverpool, L.

Campbell of Alloway, L.

Anelay of St Johns, B.

Carnegy of Lour, B.

Avebury, L.

Chelmsford, Bp.

Barker, B.

Clement-Jones, L. [Teller]

Blatch, B.

Colwyn, L.

Bradshaw, L.

Cope of Berkeley, L. [Teller]

Brightman, L.

Cox, B.

1034

Craig of Radley, L.

Miller of Hendon, B.

Craigavon, V.

Molyneaux of Killead, L.

Cumberlege, B.

Mowbray and Stourton, L.

Dean of Harptree, L.

Moynihan, L.

Denham, L.

Murton of Lindisfarne, L.

Elis-Thomas, L.

Noakes, B.

Elles, B.

Palmer, L.

Elliott of Morpeth, L.

Perry of Southwark, B.

Elton, L.

Perry of Walton, L.

Falkland, V.

Peyton of Yeovil, L.

Finlay of Llandaff, B.

Phillips of Sudbury, L.

Freeman, L.

Plummer of St. Marylebone, L.

Gardner of Parkes, B.

Razzall, L.

Geddes, L.

Redesdale, L.

Glentoran, L.

Renfrew of Kaimsthorn, L.

Goodhart, L.

Rennard, L.

Goschen, V.

Roberts of Conwy, L.

Gray of Contin, L.

Rodgers of Quarry Bank, L.

Greaves, L.

Rogan, L.

Greengross, B.

Roper, L.

Hanham, B.

Russell, E.

Harris of Richmond, B.

Saltoun of Abernethy, Ly.

Hayhoe, L.

Sandberg, L.

Higgins, L.

Seccombe, B.

Holme of Cheltenham, L.

Selsdon, L.

Hooson, L.

Shaw of Northstead, L.

Howe, E.

Shutt of Greetland, L.

Smith of Clifton, L.

Howe of Aberavon, L.

Stevens of Ludgate, L.

Howe of Idlicote, B.

Strange, B.

Howell of Guildford, L.

Swinfen, L.

Hussey of North Bradley, L.

Tenby, V.

Jenkin of Roding, L.

Thomas of Gresford, L.

Knight of Collingtree, B.

Thomas of Walliswood, B.

Luke, L.

Tordoff, L.

McColl of Dulwich, L.

Vinson, L.

MacGregor of Pulham Market, L.

Vivian, L.

Waddington, L.

Mackie of Benshie, L.

Wakeham, L.

Maddock, B.

Wallace of Saltaire, L.

Mar and Kellie, E.

Walmsley, B.

Marlesford, L.

Walpole, L.

Methuen, L.

Warnock, B.

Miller of Chilthorne Domer, B.

Williams of Crosby, B.

NOT-CONTENTS

Ahmed, L.

Dormand of Easington, L.

Andrews, B.

Elder, L.

Archer of Sandwell, L.

Evans of Parkside, L.

Ashley of Stoke, L.

Evans of Temple Guiting, L.

Bach, L.

Farrington of Ribbleton, B.

Barnett, L.

Fyfe of Fairfield, L.

Bassam of Brighton, L.

Gale, B.

Bernstein of Craigweil, L.

Gavron, L.

Blackstone, B.

Gladwin of Clee, L.

Borrie, L.

Golding, B.

Boston of Faversham, L.

Goldsmith, L.

Bragg, L.

Gould of Potternewton, B.

Brooke of Alverthorpe, L.

Graham of Edmonton, L.

Brookman, L.

Gregson, L.

Bruce of Donington, L.

Grocott, L. [Teller]

Burlison, L.

Hardy of Wath, L.

Campbell-Savours, L.

Harrison, L.

Carter, L.

Haskel, L.

Christopher, L.

Hayman, B.

Clarke of Hampstead, L.

Hilton of Eggardon, B.

Clinton-Davis, L.

Hollis of Heigham, B.

Corbett of Castle Vale, L.

Howarth of Breckland, B.

Crawley, B.

Howells of St. Davids, B.

David, B.

Howie of Troon, L.

Davies of Coity, L.

Hoyle, L.

Dean of Thornton-le-Fylde, B.

Hughes of Woodside, L.

Desai, L.

Hunt of Kings Heath, L.

Dixon, L.

Irvine of Lairg, L. (Lord Chancellor)

Donoughue, L.

1035

Jay of Paddington, B.

Puttnam, L.

Jones, L.

Ramsay of Cartvale, B.

Kirkhill, L.

Rea, L.

Lea of Crondall, L.

Richard, L.

Lipsey, L.

Sainsbury of Turville, L.

Listowel, E.

Scotland of Asthal, B.

Lockwood, B.

Sheldon, L.

Lofthouse of Pontefract, L.

Simon, V.

Macdonald of Tradeston, L.

Slim, V.

McIntosh of Haringey, L. [Teller]

Smith of Gilmorehill, B.

Smith of Leigh, L.

MacKenzie of Culkein, L.

Stallard, L.

Mackenzie of Framwellgate, L.

Strabolgi, L.

Marsh, L.

Symons of Vernham Dean, B.

Mason of Barnsley, L.

Taylor of Blackburn, L.

Massey of Darwen, B.

Temple-Morris, L.

Merlyn-Rees, L.

Thornton, B.

Milner of Leeds, L.

Tomlinson, L.

Mitchell, L.

Turnberg, L.

Morris of Aberavon, L.

Varley, L.

Nicol, B.

Whitaker, B.

Parekh, L.

Whitty, L.

Pendry, L.

Williams of Elvel, L.

Peston, L.

Williams of Mostyn, L. (Lord Privy Seal)

Pitkeathley, B.

Plant of Highfield, L.

Winston, L.

Prys-Davies, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
3.58 p.m.
Earl Howe moved Amendment No. 68:
Page 3, line 45, at end insert—
"( ) The Secretary of State shall report on an annual basis to Parliament on the outcomes of patients affected by this Act."
On Question, amendment agreed to.
[Amendments Nos. 69 and 70 not moved.]
Clause 3, as amended, agreed to.
Baroness Barker moved Amendment No. 71:
After Clause 3, insert the following new clause—
"ACTION PLANS AND JOINT LOCAL PROTOCOLS
(1) The responsible NHS body and responsible authority are required to agree the following as regards the discharge of qualifying hospital patients defined in section 1 of this Act—

(a) action plans to prevent and reduce delayed discharges;

(b) joint local protocols on the administrative and practical arrangements for the implementation of the legislation defining the roles and responsibilities of all parties;

(c) local targets for reducing delayed discharges;

(d) joint administrative arrangements for the local implementation of the duties in sections 2 to 5.

(2) An action plan under this section is a document drawn up by the relevant bodies specifying action intended to reduce delayed discharges, and to change procedures and arrangements which may cause or contribute to the failure to comply with duties under section 3.
(3) Joint local protocols will include named persons responsible for co-ordinating all stages of the patient journey up to and beyond discharge, and ensuring that all necessary arrangements are put in place at the right time.
(4) Local protocols will include joint agreement on how payments made under section 4 are used to encourage a whole systems approach to services for older people, and to ensure that all stakeholders are involved in deciding how the payments are spent."
The noble Baroness said: After that overwhelming triumph, it is nice to move on to another area. One of the more depressing aspects of our debate yesterday was the Minister's dismissal of several of our proposals relating to joint working as being the sort of things that social services authorities would do to continue in their backsliding ways. That puts a wholly different complexion on the motivation behind many of the amendments from the one I would choose.
I suspect that this amendment may suffer the same fate at the Minister's hands and that would be unwarranted. Whereas the Government are taking a heavy-handed, hammer approach to joint working, I believe that the amendment embodies a positive approach to joint working.
The consultation paper states that,
"local protocols should be developed to make sure that notifications are timely and appropriate";
and that,
"NHS and social services must have clear joint protocols about drawing up the care plans within this time scale";
and that,
"local protocols should be developed to make sure that notifications are timely and appropriate".
Joint local protocols are extremely important not only for the well-being and satisfaction of the people who will be called on to operate them, but for the end users of those services. The amendment seeks to make that joint working a duty. In making people work together, its approach is exactly the opposite of the Government's. It includes a requirement for there to be a joint agreement on how money raised in fines under the legislation can be used to reduce delayed discharges in future and encourage a whole-systems approach for services for older people. It ensures that all stakeholders are involved in deciding how money generated from delayed discharge is spent. I do not want to pre-empt a discussion which we shall have on a later amendment, but such an agreement is important if we are to tackle the causes of' delayed discharge.
Joint local protocols could also cover the administrative and practical implementations for the legislation to ensure that all parties are clear about their respective roles and responsibilities. The whole system should be incentivised by implementing joint targets and protocols to tackle delayed discharges between the NHS trusts, PCTs and local councils.
Throughout the Bill we have referred to the inevitable changes to health and social care which will arise as a result of the reflections on the Climbié inquiry. Last week, many Members of the Committee discussed this same issue, but in relation to another client group; that is, children. How do we encourage different bodies which will continue to have different roles and functions to work together to agreed principles and to put their resources and energies behind them?
I believe that the amendment does that. It enables bodies which will continue to have different functions to maintain them, but appropriately to come together and to provide services. We talked yesterday about the

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existing legal basis for joint working. It exists in law but not in practice. The amendment seeks to tackle that, and does so in a detailed way. Ultimately, a fine is a fine and while it may concentrate the mind it does not give any of the practitioners the means of bringing about what we all want: that is, better outcomes for older people.
I believe that the amendment has much to commend it, not least because it examines the issue of joint administrative practices. There is often no lack of will on the part of a social services department or a hospital to ensure that older people receive the best treatment, but often poor administrative systems are in place. Such systems get in the way of good discharge. I beg to move.
Baroness Greengross: Much in the hospital discharge workbook is popular with many people, which is good. In response to my Amendment No. 142, which we considered yesterday, the Minister reiterated that the Bill would be equally tough on the NHS as on social services departments. He said that some parts of the workbook had been ignored by some parts of the health and social care services. I therefore understand that the new workbook will be subject to guidance from the department. The clause would provide some legislative clout, but after what the Minister said yesterday, I appreciate that he may be unlikely to accept the proposal.
Perhaps a sensible compromise would be for the workbook to be subject to a direction from the Secretary of State that it must be implemented and acted upon, rather than there being merely guidance. Perhaps the direction can be, "This is what you should do if you can do it". The new clause would not then be necessary but there would he some legislative clout and we would be certain that action would follow.
Lord Turnberg: I doubt that anyone in the Chamber is not in favour of joint close working and collaboration. Those Members of the Committee who have spoken have done so in favour of joint working. The philosophy outlined in the amendment is completely acceptable. However, I have doubts about whether one can legislate to make it a duty for people to work together closely and collaboratively. That depends on a trust between consenting adults and departments. I believe that one cannot legislate for such working, but that one must provide strong guidance, strong encouragement and strong support, coupled with the monitoring of results and accountability. That requirement does not need to be on the face of the Bill, but it should be firmly ensconced in guidance.
Lord Hunt of Kings Heath: My noble friend has put his finger on the issue. The amendment, carefully crafted by the noble Baroness, Lady Barker, follows the model which the Local Government Association and the NHS Confederation wish to see established not at the same time as the Bill but in place of the Bill. Given that the Government are going down that road,
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the noble Baroness, in seeking to make this amendment to the Bill, would do exactly what she has argued against; that is, to add another layer of central bureaucracy on the NHS and social services.
We are setting out in statute how the new system will work. Therefore, as my noble friend Lord Turnberg said, there must be a strong case, subject to statutory and good-practice guidance, for allowing local partners to work things out at local level. I have no objection to the proposition that action plans and joint protocols at local level are a good tool. They are excellent tools and build on current practice. However, I have great reservations about adding another statutory duty to the Bill. We must allow local authorities and the NHS at local level to work through how they will implement the Bill.
The noble Baroness, Lady Greengross, suggests that the workbook is made the subject of statutory guidance to local authorities and directions to the health service from the Secretary of State. However, the problem is that it is an extensive book. The impact of making its implementation subject to statutory guidance or directions would be to say in essence that the whole thing had to be implemented in full. I do not see the workbook as being quite of that status.
Statutory guidance will be available, but it will be informed by the workbook in terms of good practice. While I understand the point being made by the noble Baroness, I do not think that this is the way forward. Given that we already have in place the architecture of the statutory framework in the form of community care services and NHS responsibilities as regards the discharge of patients, we have now set out in the Bill the right incentives to encourage good performance. We need guidance and statutory guidance to help steer the NHS and local government on the way they should be working, but at that point it should be left to the bodies themselves to work it out at the local level.
Baroness Barker: I thank noble Lords for their contributions to the debate. The noble Lord, Lord Turnberg, went to the heart of the matter when he talked about "trust between consenting adults". In my view, trust between consenting adults demands the prerequisites of equality of power and the ability to influence outcomes. However, I am certain that the architecture and framework of the Bill will militate against that. I do not believe that it will bring about equality in the relationship.
The points made by the noble Baroness. Lady Greengross, about the workbook and the directions are apposite. Those noble Lords who have seen it are agreed that the workbook is full of good practice, but the question remains: what will happen to it? Will the workbook be a living document that works well or will it be consigned to sitting on shelves? For example, in the course of the debate on Second Reading a number of noble Lords spoke of the importance of patient transport. The section in the workbook covering patient transport is great, but will it happen? I do not know.

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I am not wholly reassured by the Minister's comments. I understand that producing guidance to sit side by side with that contained in the workbook is not helpful, but the proposal in the amendment provides the means by which such good practice can be implemented. That is the motivation behind the amendment.
All noble Lords are struggling to produce a Bill that is workable rather than simply adding to the canon of legislation that is happily ignored by all, not only by social services. I think that the Minister has been unduly unfair on social services as regards their part in this. I should remind him that when the Health Select Committee considered an analysis of why hospital discharges are delayed, it found that 10 per cent of those delays are due to the NHS.
Lord Hunt of Kings Heath: I am most grateful to the noble Baroness. At no point have I suggested that this is a problem solely of local authority social services departments. Over the past two or three weeks I have drawn attention to failings in the National Health Service in this area and others where the health service should be working together with local government. I have made the point that there is much for the NHS to do in order to get its act together.
Baroness Barker: That is precisely the intention behind the amendment. As the Minister has already pointed out, when proposals are made by the Local Government Association and the NHS Confederation, it is easy to ignore them and consider them as merely the products of various interest groups. However, given that the association and the confederation are two of the key interest groups that will implement the legislation, then we have a duty to listen.
I do not intend to press the amendment today, but I still believe that the approach outlined in the proposal is valid and one to which I may wish to return before we have completed our deliberations on the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 72 not moved.]
4.15 p.m.
Clause 4 [Liability to make delayed discharge payments]:
The Deputy Chairman of Committees (Lord Murton of Lindisfarne): If this amendment is agreed to, I shall not be able to call Amendments Nos. 74 to 76 by reason of pre-emption.
Baroness Barker moved Amendment No. 73:
Page 4, line 8, leave out subsections (2) and (3) and insert—
"( ) The responsible NHS body and the responsible authority shall, in the case of each patient where a discharge notice under section 3(7) has been issued, agree—

(a) a definite day of discharge (the "relevant day");

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(b) a joint aftercare plan for the provision of relevant health and community care services following the day of discharge for an agreed period."

The noble Baroness said: We move now to a series of amendments which cover a major area of the Bill and go to the heart of our arguments. Here we address the issue of the day on which a person can be discharged from hospital, which is fundamental to this legislation.
In our debate yesterday I mentioned the difficulty of attempting to try to draw a defined line between what is medical care and the judgment that must be made by the NHS, and then defining the point at which the decision becomes the responsibility of social services departments. The decisions should he taken jointly; they vary when that is done and thus this area is one of the most critical in the Bill.
It is correct to say that a clinician can reach a decision that, on a given day, a person no longer needs to be kept in a hospital bed receiving acute care. However, another decision needs to be made concerning the circumstances into which someone will be sent when they go home or are moved elsewhere. Bearing that in mind, would the medical decision to discharge remain the same? The medical decision must take account of whether the person is to be discharged to the best place for them. Two separate and different decisions must be made by clinical practitioners. Given that, the medical decision may differ if it is taken jointly with someone who is fully informed of the conditions to which a person will be discharged. That is why we are proposing in this amendment that social services representatives should be equally involved in making the decision on what should be the clay of discharge.
I have mentioned several times a situation that regularly arises. An older person is a patient in hospital; he swears blind that he will be fine when he goes home, which he does because he will say anything to get out of hospital. However, when he does go home, neither he nor his carers can manage. Later we shall discuss in more detail the issue of readmission to hospital, but I believe firmly that the number of readmissions would be cut if social services representatives were active players in the decision on the date of discharge. That is the motivation behind the amendment and I beg to move.
Lord Hunt of Kings Heath: The noble Baroness has returned to a matter that she anticipated in some of our debates yesterday. I understand the point she has raised. In what are often difficult circumstances, decisions must be reached and of course it is important to ensure truly effective dialogue between the health service and social services. I do not deny that at all. Furthermore, we know from areas where good practice is working well that there is a seamless and integrated care approach which ensures that the issues raised by the noble Baroness, along with the downsides, are reduced to a minimum.
I apologise because I must go over ground that I covered yesterday. In the understandable concern of the noble Baroness to emphasise the need for a joint

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approach, there is a risk that, were we to accept the amendment, we would risk making fudgy an area where there is at present a good deal of clarity; that is, on who ultimately must take responsibility.
There is a problem with the wording of the amendment. In a legal sense, the word "agree" would mean that both the NHS and social services have a power of veto over the services provided by the other agency. My fear about that situation is that while many NHS and social services bodies would operate well and would not seek to use their ability to veto any action, it would leave far too much to chance.
I return to what I said yesterday. It is important to remember that the Bill does not change any statutory responsibility of either the health service or local government. It is best to keep it that way and to accept that in the discharge procedure both the NHS and social services have decisions to make. In a legal sense, it is best that they are responsible and accountable for such decisions. But it is part of our job to ensure good practice and the right incentives, and we encourage them to work closely together. That, in essence, is what the single assessment process is all about. That is why, ultimately, while sympathising with what the noble Baroness seeks to achieve, I cannot support her amendment.
Baroness Barker: Following our discussions yesterday, I am not surprised by the Minister's reply. The Minister may be right that the responsibilities have not changed, but that begs two questions. First, why do not the arrangements work at the moment? And, secondly, what is the purpose of changing the context in which those responsibilities have to be exercised by introducing a system of fines? Those two questions are not adequately answered by the Bill.
There is merit in saying that decisions about days of discharge should be joint but, while it may be clear that there is an ultimate responsibility, I am not sure that in practice that clarity works its way through into better patient care. Patients still get left out and do not receive services to which they have a right. As the Bill stands, it gives no right to services at all.
I understand the Minister's argument but it is not a satisfactory answer to say that the relationship between the two statutory authorities must work in the way he outlined. None the less, I shall take the amendment away and consider it further between now and the next stage of our discussions. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: In calling Amendment No. 74, I should inform the Committee that if it is agreed to I shall be unable to call Amendment No. 75 owing to pre-emption.
Earl Howe moved Amendment No. 74:
Page 4, line 15, leave out "two days" and insert "three working days, excluding Saturdays, Sundays, bank holidays and public holidays"
The noble Earl said: In moving Amendment No. 74, I shall speak also to Amendment No. 88. The amendment brings us to some of the nitty gritty of the Bill. Setting aside for the moment our opinions about the Bill as a whole, we do at the very least need to ensure that the rules that are put in place to bring its provisions into effect are likely to work smoothly. We also need to make sure that they are equitable as between the NHS and the local authorities. The issue that perhaps falls most squarely under this kind of heading is the period of time defined as the minimum period which local authorities are given to assess patients and to make services available to them.
It is helpful that we now have available to us the draft regulations which enshrine the relevant definitions, but I have to say that they give me no comfort whatever. What the regulations say, if I have understood them correctly, is that a hospital has to give at least two days notice to a local authority of the date when a patient must be discharged. Notice given after 5 p.m. counts as having been given the next day; and a discharge before 11 a.m. counts as having occurred on the previous day. It is not surprising that local authorities are up in arms. The Minister will no doubt tell me that two days is a minimum but, nevertheless, it is an option. In the vast bulk of cases it is a ludicrously short time for a proper assessment of patients and for proper care arrangements to be made for them.
For a start, neither the Bill nor the regulations make any distinction between working and non-working days. It may well be to the hospital's advantage to ignore this distinction, but it certainly is not beneficial to the local authority where working practices will have to change fundamentally if the rules are to operate as drafted.
We have debated on numerous occasions the financial pressures currently being experienced by social services departments. These regulations would place further, and unfunded, financial pressures on those services. The 5 p.m. cut-off point is the very least that can be done to acknowledge the practicalities of a normal working day. It is not exactly a generous recognition of those practicalities. Similarly, the leeway until 11 a.m. on the day after the notified discharge day is welcome, but again it is not giving much away. We need to look again at the whole formula.
I note in passing that the regulations in paragraph 11 contain some rather impenetrable drafting which the Minister may care to look at. If one omits sub-paragraph (a), one has a sentence that begins:
"A patient who is either in relation to whom the responsible authority is able".
That does not seem to me to be as clear as it should be.
My amendment would remove the two-day period and substitute three working days, excluding Saturdays, Sundays, bank holidays and public holidays. That seems to me a more equitable and more realistic formula than the one the Government propose.
We all accept, I think, that there has to be consultation with the patient and his or her carer about the arrangements to be made for continuing care. We all accept as well that the patient's choice of care environment needs to be taken account of and, if possible, accommodated. Are we saying that the only thing that matters is for the patient to be shifted out of his hospital bed, and that for this purpose any old care home will do? Heaven forbid. But this is what the Minister implied in another place when she said that patients,
"should not he stuck on an acute ward",
but,
"transferred to more suitable environments and receive care while their care planning continues".—[Official Report, Commons Standing Committee D, 10/12/02; cols. 49–50.]
We are back to "pass the parcel". A patient is not a parcel. An elderly person is often deeply upset by a change of environment. It is not acceptable deliberately to envisage moving such a patient from pillar to post merely to free up a hospital bed in the shortest possible time. If there is a feature of the Bill that makes me recoil more than any other, it is this. It is also the surest recipe for an emergency readmission a few days later. We already see emergency readmissions rising quite dramatically across the country.
However, reverting to the mechanics, do the Government really believe that notifying a local authority at 4.30 p.m. on Good Friday that Mr Smith has to be discharged not later than 11 a.m. on Easter Monday is being fair on that local authority? It cannot possibly be. In another place the Government resisted similar amendments. I hope that they will not do so again, having had a chance to think about the matter in more depth. I beg to move.
4.30 p.m
Baroness Barker: I shall speak to my Amendments Nos. 75 and 76. Amendment No. 75 is very much in accordance with that of the noble Earl, Lord Howe. My suspicion is that opposition to this amendment will be to the effect that services should be patient focused, and not run for the benefit of those employed in them. But it is precisely because I am concerned about patients, especially older people, that I believe that the amendments are right.
Time and again, it has been demonstrated that a lack of community services in the wider sense is a cause of re-admission to hospital—and a great many services which have nothing to do with statutory providers are simply not available on bank holidays and at weekends.
In addition, the role of families in the discharge process cannot be under-stated. What happens to someone in hospital who says "I want to talk to my son or daughter about this", but he or she cannot get here from Manchester until Friday? At present, hospital authorities understand that and work around it. That is the human side of the process, which will be smashed away by the heavy hammer that the Government want to introduce. The anxiety of relatives, in terms of knowing when someone will be discharged so that they can be there to help, is well and truly under-estimated.
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Amendment No. 76 deals with discharge to residential care homes. The amendment deals with three different points. First, the Government have made much of the number of people in acute hospitals and of the experience in Sweden, where this model operates. But one fact has not emerged throughout our discussion; namely, that in-patient times in acute hospitals in the UK are the shortest in the whole of the European Union. The Minister will no doubt say that three days will be a minimum period, and that most people will be in hospital for much longer. But it should be borne in mind that this model is based on a system elsewhere; it operates in a different environment, where decisions can be made over a longer period.
The second reason for tabling the amendment is to discuss the position in care homes. Three days is not a long time to conjure up a care home. When we are talking—as we often are with older people—about dementia care places, the Government are risking a log-jam in another part of the system. We may clear the acute beds, but we shall create enormous problems and huge pressures for people to be discharged from care homes in order to enable discharge from hospital. It is not unreasonable for there to be a longer period of time, particularly when we are talking about care homes—which, as we discussed at considerable length yesterday, are becoming a scarcity in some parts of the country.
Baroness Howarth of Breckland: I support the noble Earl, Lord Howe. I shall not repeat the arguments that he put so clearly about the need for clear assessment, consultation and elements of choice for people who are being discharged—some of whom will not be elderly, but may well be disabled—into alternative resources.
I want to reinforce the noble Earl's point about the need not to change the working patterns in social services. I believe that that would be hugely costly. As someone who has run out-of-hours services in local authorities and who knows the difficulties of staffing such services—which it is fair to say are at a crisis point—this would simply take away resources, again, from other services. Therefore, it is crucial that we should have at least one more day and that we do not deny the fact that social services work to a different pattern.
I am rather irritated by people who say that social services should be prepared to work at these times, when, of course, they do. The point is that their shift patterns are not based on the same kind of hour levels as those of nurses in hospitals. That is a crucial consideration.
I apologise for not being present for the debate yesterday. I was at the National Care Standards Commission, worrying about how we ensure that we have enough information to be able to make these decisions more easily in terms of the number of facilities available and the way in which standards will be implemented. That information will make the

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working of the Bill easier; but, however much information we have, we should not be shortening the time available for assessment. That point is crucial.
Lord Turnberg: I need to tip-toe carefully through this group of amendments. I have a great deal of sympathy with Amendment No. 75, but somewhat less for some of the others.
While there is no doubt that acute medical services have to be available seven days a week, 52 weeks of the year, where needs are not so acute it is more difficult to sustain an argument for a seven-day week service. It is not too revolutionary to suggest that everyone has to have some time off work. The only way in which every day of the week can be covered is to have a rota system; and for that, one needs enough staff. I believe that it would be difficult, if not impossible, for many social service departments to have the numbers needed to man such a rota and remain within the European Working Time Directive limits on the number of hours that anyone will be allowed to work. But even leaving social services staff aside, those commercial organisations that supply and fix the aids to daily living that are needed at home will not always be available or willing to work at weekends or on bank holidays. So I have some sympathy with Amendment No. 75.
However, if there is good co-operation between social services and hospital staff at a much earlier time, as everyone is seeking, the problem of a last ditch three-day sudden spurt of frantic activity will be unnecessary, because social services departments will be prepared over a longer time-frame and the resources could be put in place without the need to organise anything other than modest weekend and bank holiday cover.
That brings us back to the need for early joint working to permeate the whole ethos. But, meanwhile, I hope that my noble friend the Minister will be prepared to consider how weekend and bank holiday pressures on social services staff can be eased.
Lord Hunt of Kings Heath: This has been an interesting debate. I want to get the balance right between what is practical as regards the health service and social services and what is absolutely desirable and necessary in the case of patients stuck inappropriately in acute hospital beds.
I agree with the noble Earl, Lord Howe, that the rules need to work smoothly and equitably. I have taken note of his comment on the drafting of paragraph 11. I believe, however, that, as Members of the Committee wished to see the draft regulations, they have been helpful in informing our debates. These are draft regulations. The debates that we are having are extremely helpful in terms of informing the Government as to how we should take the regulations further forward. Issues raised by Members of the Committee in the search for clarity have indicated that we need to examine the drafting to make sure that the regulations are clearly understood by those who will have to operate them in the field.
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The noble Earl raised a point about consultation. We discussed this issue extensively yesterday. I believe that my noble friend Lady Andrews gave an undertaking that we would look very carefully at this issue—as indeed we shall. I take issue with the noble Earl for using the pejorative phrase, "any old care home will do". Let me make it clear that in a complex case, when it would not be expected that the assessment of care package could be produced in the minimum three days, we think it would be better to transfer that person to more appropriate care—that is what interim care is about. For many people, that would be far more appropriate than having to stay in an acute hospital bed. For a person so transferred, we would expect—and, indeed, insist—that the care planning arrangements continue. We are developing new targets for the time of assessments and provision of services in those cases and the cases of all other members of the public who wish to receive community care services.
On the minimum of three days, I understand that it is not easy, on first reading, to get to grips with what is contained in the legislation and the regulations. But I stress that three days is the absolute minimum. Many of the people we are discussing will be coming into the health service for elective surgery. Under Clause 2(3)(b), notice can be given up to eight days before the expected admission of that person. Equally, assuming that a patient was in an NHS bed on a Monday, if notice was given after 2 p.m., it would be deemed as having been given on the following day. From Tuesday, two days take us to Thursday. If the services were available up to 11 a.m. on the Friday, there would be no penalty charge.
Three days is the absolute minimum. Some 70 per cent of over-75s in the NHS expect to stay in hospital for longer than three days—in fact, their average stay in hospital is 11 days.
I would be concerned if, under the Bill, it was acceptable for local authorities to take a minimum of five days to assess patients and make services available for them. For all the reasons I have given about inappropriate delays, I would be concerned about putting that provision on the face of the Bill. The point is that the minimum compliance period in the Bill is a minimum. We have taken powers to make regulations that allow us to specify the minimum period, and although the draft regulations give the minimum period of two days I shall consider what has been said and whether there is a case for changing the period in the regulations, perhaps to cover some of the points made about weekends and bank holidays. That is not a commitment. I am committing myself to consider the matter further.
I understand the question raised by my noble friend Lord Turnberg and the noble Baroness, Lady Howarth, about the different shift patterns in the health service and local government. Clearly that will be a factor for local authorities in particular. It was, incidentally, referred to by the noble Lord, Lord Laming, in the Climbié report. He raised some important questions about how local authorities

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should respond to out-of-hours situations. That is another matter that local authorities will have to take on board.
On the amendment in the name of the noble Baroness, Lady Barker, I accept that good practice in many areas is that patients should not permanently enter a care home for the first time direct from an acute hospital bed. To enter a care home for the rest of one's life is a major decision. I suggest that an acute hospital ward is not the best place to maximise a person's independence or to make that decision. That is why I believe that intermediate care, rehabilitation and other such schemes give patients the time either to maximise their independence and perhaps return home or to consider the option of a care home place. Going home or to other support in the community is not a possibility when a person has been in hospital in excess of five days and has, in many cases, lost his or her independence.
The Bill is not the place in which to make the kind of except ions about which Members of the Commitee have talked. I think that it is right to aim for a minimum period of two days. But I have undertaken to look at the draft regulations in the light of our discussions. I will not commit myself on this, but I shall look at the matter most carefully.
4.45 p.m.
Baroness Barker: I thank the Minister for his response and wish to make two points. I was envisaging people who were not in acute care for the first time. It may be a repeat episode, both they and their relatives having decided that the person concerned could not return to living independently and that the best thing for them would be to enter a care home. We are in danger of looking too narrowly at the reasons for being in hospital and the options that people may wish to follow.
I take to heart the Minister's agreement to look at weekends, and so on. In a Question last week, I mentioned some research and commend it again to the Minister and his department. The Minister said that the department was conducting research but some has already been carried out in Leicester. It was reported in the journal Nursing Older People in March 2002. There has already been an analysis of discharge and readmissions in teaching hospitals in Leicester over a three-year period. I recommend the Minister and his department to examine that very revealing research as they come to a decision.
Earl Howe: I thank all those who have spoken—the noble Baronesses, Lady Barker and Lady Howarth, and the noble Lord, Lord Turnberg. I was grateful to the noble Lord, Lord Turnberg, in particular for his support, in principle, for some of my points, even if not for my amendment. Between them, they have prompted a reply from the Minister that provides at least a glimmer of hope, and I thank him for what he said.
I believe that my amendment is quite modest. Most bodies that have lobbied on the issue have proposed a minimum period of five working days, which is
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reflected in the Liberal Democrat amendment. That struck me as something that the Government would not warm to, but I thought a three-day period seemed reasonable.
I am grateful for the Minister's undertaking to take these matters away for consideration. Perhaps he will not be surprised if we table these or similar amendments again at a later stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 75 and 76 not moved.]
Baroness Barker moved Amendment No. 77:
Page 4, line 16, at beginning insert "Subject to subsection (4A),"
The noble Baroness said: We come to a series of amendments which, in different ways, point to the fact that one of the significant reasons for delayed discharge is NHS failure to provide appropriate community health services. Another is the failure of other statutory bodies to provide services which older people need in order to enable them to return home.
The Health Select Committee report set out in detail the complex reasons why discharges can be delayed. For example, the committee pointed to the practice in some hospitals of timing consultant discharge rounds. Given the Minister's answer about the timing of days, I imagine that every acute NHS trust will shortly be re-scheduling the consultant ward rounds, either to beat the clock or not.
The Minister laughs. I am not as up on NHS practices as he is. I am involved with social services. If I were a director of a social services department, I would be sitting down with my staff now and talking about time and day planning.
Lord Hunt of Kings Heath: I am shocked by the noble Baroness's cynicism.
Baroness Barker: No, it is not cynicism. That is life—that is professional life in the NHS and in social services departments. I am not at all cynical. If I were a director of a social services department in charge of a team responsible in this area, I would begin to look at shift patterns now. That would be wise in the NHS as well.
Lord Hunt of Kings Heath: I understand what the noble Baroness says. There is a big difference between sensible shift patterns—trying to make this work as speedily and effectively as possible—and what the noble Baroness describes, which is what I would call gaming. We would expect the inspectorate to pick up problems in those areas. That is why I agreed on the importance of monitoring in the first debate. Obviously such practices would be unacceptable.
Baroness Barker: I thank the noble Lord and I take some heart. It is no secret that earlier this year one acute hospital changed its definition of social services delayed discharges and, lo and behold, within three days its rate of social services delayed discharges went

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up by 40 per cent. We have talked about perverse incentives. Those sorts of things are going to happen—that is what is life is going to be like.
All these amendments reflect the fact that a failure by the NHS to supply continuing healthcare services is a big factor in delayed discharges. Given the fundamental imbalance in the Bill, I am not sure that that is adequately addressed. We have sought to do that in this series of amendments. I beg to move.
Earl Howe: I should like to speak to Amendments Nos. 78 and 93 in this group.
I have mentioned previously the importance we attach to the principle of equity in this Bill. Equity and fairness are not easy to achieve when the whole basis of the Bill is a one-sided arrangement that places local authorities at a constant disadvantage in their relations with the NHS without giving any reciprocal leverage.
Ministers have made helpful noises about reconsidering that balance and I welcome what they said yesterday on this. If local authorities are to be penalised, the least we can do is to make sure they are penalised only when they have failed to act as they are required and when that failure is entirely their fault.
What happens if it is not entirely their fault? It is easy to imagine a situation in which the local authority has done everything that has been asked of it but the patient is unable to leave hospital because something else is not quite as it should be. What happens when the NHS itself is at fault? For example, let us imagine that a place has been found in the care home of the patient's choice but there is no suitable health support in the community for that care home in the form of a health visitor or GP coverage. In those circumstances, the home might say that it could not accept the patient.
Under the Bill, as I read it, the fault in that situation still lies with the local authority and the acute trust could turn round and say, "You have not performed. Tough."
Clause 4, as I interpret it, allows for no excuses. It says that if it has not been possible to discharge the patient because the responsible authority has not made available a community care service, then the responsible authority is liable for a payment. It does not matter whether the underlying reason for that failure is the absence of primary care services. From the hospital's perspective the fault lies with the local authority, which has failed to do what it said it would. That cannot be fair or equitable.
The Minister may be about to point me in the direction of the words "and only because" in Clause 4(4)(b), but I do not find them of sufficient comfort. I accept that they will let social services off the hook in certain circumstances, but what about a situation where a patient wants to exercise a choice about where he goes after leaving hospital? What if a care home place is found for a patient but that person refuses to go there? The example given in another place was that of a Jewish patient needing a place in a Jewish care
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home, yet there is only a place available in a non-Jewish care home. Why should a local authority be fined in those circumstances, when the situation is not its fault? Why should it be fined if the care home place was available but the patient baulked at paying a top-up fee and for that reason refused to go there? Are we being asked to accept that patient choice should always been overridden in cases like that? If we are then it is a sorry reflection on the approach being taken to patient care. The human dimension disappears.
I should like to see some sensible flexibility in the arrangements along with some natural justice. That is the reason for my amendments.
Baroness Finlay of Llandaff: I should like to speak to Amendments Nos. 80 and 81.
There can be delays in transfer that are not the responsibility of social services but can result in long delays. It can sometimes need 48 hours to book a transport ambulance for non-emergency transport. The ambulance service is an independent NHS organisation and not part of the NHS hospital trusts or part of social services.
I have already referred to data collected in my own NHS trust. Let us consider two samples. From May to July 2002 there were 23 patients waiting an average of 14 days. Ten of those patients were awaiting transfer to a hospital nearer home or to a nursing home. Similarly, winter data from September 2002 to January 2003 showed an improvement but revealed 17 patients waiting an average of 16 days. Four of these were awaiting transfer. Of the 40 patients in total, 11—or just over a quarter—became unfit for discharge while they were waiting. So delayed discharges certainly represent a major problem, but the delay in transport cannot be laid at the door of social services.
There have been moves by some hospitals to establish a dedicated ambulance for discharges, but not all have done so. The ambulance services have shown great compassion for my patients who wish to go home when dying. However, as the services cannot be immediately available for routine rapid discharges, patients remain in hospital awaiting transport.
Amendment No. 81 would allow some flexibility. Everyone can have a dire day or a bad week and work falls behind. Staff sickness can arise quite suddenly. With an epidemic in every work place, work will fall behind. The spirit of this amendment would allow for understandable delays before the Bill is enacted. Currently, care packages cannot always be put in place because there are just not enough carers. Where social services are doing all they can to recruit and train staff, it seems invidious to fine them. The amendment seeks to maintain good working relationships between social services and the NHS by building in leeway.
I support Amendment No. 82 particularly because of the serious NHS equipment delays in the community. I shall, if I may, cite just two examples: hospital beds and commodes. In the BroTaf area, at any one time, up to 22 people are waiting for a hospital bed to be put in their home before they can be

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discharged. Care packages are complex and require both the NHS and the social services equally to pull their weight.
5 p.m.
Baroness Greengross: Amendments Nos. 79 and 80 cover similar territory to Amendment No. 74, which we considered late last night. I am therefore sympathetic to them. Amendment No. 80, tabled by my noble friend Lady Finlay, is particularly important to me as much anecdotal evidence and certainly my own personal experience suggests that many delays in leaving hospital are caused by poor transport services. The Minister has told us that the three-day period carries over to a fourth day. I assume that that means that there is extra time to arrange appropriate transport. However, I would not want to see a situation in which a person who is ready for discharge on the third day after a Section 2 notice is left sitting around the hospital until the fourth day. Sitting around the hospital waiting is the experience of many very frail people. Can the Minister tell us what additional responsibilities the Bill places on hospital transport services and the ambulance service?
Lord Hunt of Kings Heath: I think that the noble Baroness, Lady Greengross, has put her linger on N HS responsibilities in this area. We are clearly saying that the responsibility of making the system work effectively is shared equally by the NHS and by personal social services. There is no question about that. I also say to the noble Earl. Lord Howe, that of course I want equity and fairness. That is why, in a full year, £100 million is being transferred from the NHS to local government, to help oil the wheels of the new system. That calculation is based on our estimate of the cost to local authorities.
It is important that the system should be fair to local authorities. I know that the noble Earl is doubtful about Clause 4(4)(b) The provision deals with cases in which,
"by the end of the relevant day … it has not been possible to discharge the patient because, and only because",
the local authority has not made available to the patient the community care service decided under Clause 3(3)(b). My reading of the provision is that local authorities will be liable for a reimbursement payment only where the delay is solely their responsibility. It would be completely unfair to require a local authority to reimburse the NHS in cases where the delay occurred not only because a community care service was not available, but because the NHS failed to provide an essential part of the care package. Reimbursement would also be unfair in the case cited by the noble Baroness, Lady Finlay, in which hospital transport was not available. Surely that is the best indication I can give of our recognition that this is a whole-system approach.
Clearly it would be grossly unfair to penalise local authorities either as the noble Earl suggested, in terms of community health, or as the noble Baroness suggested, in relation to hospital transport. Consequently, when there has been a failure to arrange
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any part of the care package or discharge process which is not the local authority's responsibility, the local authority cannot be held liable for payment, regardless of whether the local authority has also failed to put services in place.
I come to the question of care homes, and I want to be very clear about this. My comments do not mean that the local authority has met its responsibility when it has assessed the patient and decided to provide a care home place but a care home place is not available. It does not mean that at all. At that point, the delay is still due solely to the fact that social services have not met their responsibility. Where a care home place is deemed the appropriate place for the patient, it is the local authority's responsibility to ensure that a care home place is indeed made available.
I take noble Lords back to some of our earlier debates on care home places when local authorities were criticised for how they relate to care homes, their inability to enter into long-term contracts, and the resources they have been prepared to pay for care home places. I believe that there has been significant improvement. National protocols have been agreed between the Local Government Association and the care homes. We are also seeing an increase in fees paid by local authorities. Yesterday I quoted the example of Barnsley, but other local authorities also have made long-term arrangements to have secure capacity. I believe that, in that case, it is right to place on local authorities the responsibility for ensuring that capacity is available.
The noble Earl gave the very interesting example of a Jewish patient who wishes to go to a Jewish care home. As I understand it, if a person is assessed as needing a place in a Jewish home, that is what the local authority must make available. If he is not so assessed, as I said yesterday when we discussed self-funding, the authority must make reasonable efforts to reach a compromise, or perhaps provide an enhanced home care package until a place in a Jewish home is available. If a person then refuses reasonable efforts or insists on nothing but a place in a certain home, then it is likely that that person will become a self-funder.
I think that that is exactly the same principle as we discussed yesterday in relation to self-funding. It is not acceptable simply to say, "It is that choice and nothing else", and then declare that person a self-funder if he refuses the choice. The local authority must make reasonable efforts to discuss the options with the person involved and attempt to come to a reasonable compromise.
As regards Amendment No. 81, I understand the point that the noble Baroness, Lady Finlay, is making. I realise that even exceptionally well performing local authorities may have a few unavoidable delays. I can see why she might think it unfair to penalise them for that. However, I am much more concerned about

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patients than I am about statutory authorities. I have to ask why subsection (4) should not apply unless, in the terms of Amendment No. 81,
"the responsible authority has been responsible for either—

(a) one delayed discharge of more than two weeks, or

(b) two delayed discharges of up to one week each, in the six month period preceding the relevant day in subsection (4)".

If that threshold were accepted, does not the noble Baroness think that, as with all thresholds—I hope that I shall not go down the cynical route taken by the noble Baroness, Lady Barker—
Baroness Barker: I did not say that I was going to take that cynical route; I said that I should not be surprised if practitioners took that cynical route.
Lord Hunt of Kings Heath: I stand corrected by a very experienced practitioner in the field. I say to the noble Baroness, Lady Finlay, that there might be a tendency for departments which have met the threshold in her amendment to permit one delayed discharge to drift up to a week but to ensure that the magic number of two delayed discharges of up to one week each is not reached. The problem I have with the amendment is that it could take the focus off the individual patient and his or her needs and place it on concerns about the relevant statutory authority. That has been a consistent theme of our debates. At the end of the day, we are talking about a measure designed to build services round the individual. I hope the Committee recognises that I am sympathetic to local authorities where a matter is clearly not their responsibility. I hope that I have given assurances in that respect.
I wish to speak to Amendment No. 85 which stands in my name. This is a technical amendment which follows changes made to the Bill in another place.
5.15 p.m.
Earl Howe: I hope that the Minister will clarify one point. Where it is the NHS itself that is preventing the local authority from fulfilling its obligations under the clause—for example, where there is an absence of primary care services sufficient to meet the needs of the patient, or absence of physiotherapy or whatever it may be—am I right in interpreting the Minister's reply as saying that the local authority would still he held responsible in such circumstances?
Lord Hunt of Kings Heath: My understanding is that where the NHS has failed to provide an essential part of the care package, it would in those circumstances be unreasonable to expect the local authority to reimburse the National Health Service.
Baroness Barker: Does that therefore mean that the noble Lord accepts the premise in my Amendment No. 82, prefaced in Amendment No. 77?
Lord Hunt of Kings Heath: I am not sure that I follow that. I attempted to make clear that each body has a statutory responsibility. The outcome in the discharge of a patient might well be that the local authority needs to provide certain services but also, as has been suggested by the noble Earl, there might need to be an intensive programme which needed to be provided by the National Health Service. In those circumstances, if the NHS failed to come up to the mark, it would be unreasonable to say that it was the local authority's sole responsibility that a problem had arisen with the discharge. Therefore, the penalty would not apply.
As I said to the noble Baroness, Lady Finlay, in relation to hospital transport, if hospital transport fails to arrive to take a patient from hospital to his or her home, or wherever they are going—and it has been decided that that is the way the patient should be transported—it would be grossly unfair to blame the local authority for that.
Baroness Barker: The Minister has given a perfect exposition of my Amendment No. 82. He will love that amendment as it concerns regulatory powers. Does he not agree that it would be helpful to have the explanation that he has given on the face of the Bill?
Lord Hunt of Kings Heath: Not at all. One thing I have learnt in your Lordships' House is that it is better to keep legislation as simple as possible. I believe that the words in subsection (4)(b) of Clause 4, "because, and only because", make the position abundantly clear.
Baroness Finlay of Llandaff: I should be most grateful if the Minister could clarify one further point. I fully accept his response in relation to failures by the NHS. However, is the NHS obliged to impose penalties on social services—even where it has good working relationships with them—in the event of an unforeseen occurrence such as a sudden very high rate of staff sickness within social services where delays inevitably occur? Or, will the NHS be allowed discretion to say that it fully accepts why the delays have occurred and will not impose penalties?
Lord Hunt of Kings Heath: I certainly hope not as that would take us back to fudge and mudge. We must be clear that each statutory authority has its own responsibilities which it must carry out.
Earl Howe: The difficulty as I read the clause is that subsection (4) is a knockdown test, taken in conjunction with subsection (5). There is no attribution of blame here other than blame on the responsible authority if it fails to meet its obligations. On any reasonable interpretation of those subsections a failure by a local authority to meet its obligations, no matter what the reasons, constitutes grounds for imposing a penalty. That is the issue that has worried me and other Members of the Committee. Despite the

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Minister's helpful responses which give me comfort, I am not sure that I can read his interpretation into the text of the Bill.
Lord Hunt of Kings Heath: I have gone into the matter carefully and have taken advice on it; namely, that the way in which the clause is written provides the satisfaction that the noble Earl requires. I shall be happy to write to the noble Earl to see whether I can clarify the matter further before Report stage. I appreciate that this is an important matter to clarify.
I apologise to the Committee as I was speaking to Amendment No. 87 and not to Amendment No. 85.
Baroness Barker: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 78 to 84 not moved.]
Lord Hunt of Kings Heath moved Amendment No. 85:
Page 4, line 29, leave out "provide" and insert "make available"
On Question, amendment agreed to.
[Amendment No. 86 not moved.]
Lord Hunt of Kings Heath moved Amendment No. 87:
Page 4, line 38, at end insert "and
"(c) every service that it decided under section 3(40) to make available to a carer has been made available,"
On Question, amendment agreed to.
[Amendment No. 88 not moved.]
The Deputy Chairman of Committees: I should point out to the Committee that if Amendment No. 89 is agreed to, I shall not be able to call Amendments Nos. 90 and 91 owing to pre-emption.
Baroness Barker moved Amendment No. 89:
Page 5, line I I, leave out subsection (9) and insert—
"( ) Any payment which a relevant NHS body or relevant social services authority is required to make under this section shall be made to a fund, to be known as the "discharge aftercare fund", which shall be held and jointly administered by the Primary Care Trusts and relevant social services authority in each area.
"( ) Expenditure from the discharge aftercare fund shall be agreed jointly by the Primary Care Trusts and social services authority in each area."
The noble Baroness said: The amendment takes us to one of the most commented-on flaws in the Bill. If one accepts that the system of fines is, as the Minister would have us believe, a patient-centred system designed solely to alleviate the difficulties suffered by people because of delayed discharge, why will the resources released back from social services to the NHS go into acute care generally? Why will they not be specially designated as resources intended to deal with delayed discharge?
We have talked repeatedly about the reasons for delayed discharges. To the best of my knowledge, the provision of acute care is not one of them. Throughout
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our discussions, many Members of the Committee have been concerned about what we have called perverse incentives. In one of our earlier discussions, the Minister referred to gaming. I gave an example of an acute trust that changed its definition of delayed discharges for income generation.
That seems to amount simply to a system of distortions between two sets of statutory authorities, and has very little to do with tackling the underlying causes of delayed discharge. If we believe that the Select Committee on Health is right in that delayed discharges happen at least in part because of lack of resources and planning, it seems correct to say that the money should be aligned to the solution of that problem. For those reasons, we tabled the amendments, which propose that money should not go straight back into acute care but that it should be put into special discharge funds. Crucially, primary care trusts would be involved. They as much as acute care trusts have an interest in making sure that the causes of discharge, which they might be more able to analyse because they will be closer to them than the acute trusts, should come into play.
In addition, one element of the Swedish system built into the amendments is that decisions should be made locally. I keep returning to that point. In a moment, the Minister can tell us what performances by acute hospitals and PCT areas are on delayed discharge. What he cannot tell us is what else is going on, what readmission figures are like or why they are caused.
The amendments are an endeavour on our parts to try to make a very bad system somewhat better, by saying that resources ought to go to the point where problems can be sorted out. I imagine that the Minister will follow the lead of his colleague in another place and attempt to rule them out on the grounds that those who are at least in part responsible for the failures should not be rewarded by having the resources handed back to them. However, the involvement of primary care trusts is a significant enough factor in itself to make sure that we are not simply rewarding social services departments that are deemed to be not fulfilling their side of the bargain. If we are not only to be tough on delayed discharge, but tough on the causes of delayed discharge, perhaps that should be part of the equation. I beg to move.
Baroness Noakes: I shall speak to Amendments Nos. 90 and 92, which are included in the group.
We fully agree with the noble Baroness, Lady Barker, that it is inappropriate that the hospital that levied the fine should itself determine how the money is spent. It is a thoroughly undesirable incentive for hospitals to maximise the fines that they collect. However, we are not convinced about Amendment No. 89 so far as concerns where the money should go. Our view is that if the fine is calculated as the cost per day of unnecessarily keeping a patient in hospital—I understand that that is the broad logic underpinning the Government's calculations of £120 and £100 fines the hospital will have been paid for its bed under the various agreements that it has made with

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PCTs. It might not have done anything else with the bed, but that is not relevant so far as the hospital is concerned, because it will have been paid.
It is therefore logical that the fine should be paid to the PCT, so that the PCT can determine whether to pay for more acute treatment in that hospital or another hospital, or to pay for non-acute services, perhaps in the community. I am aware of the seductive nature of labelling the money for discharge aftercare, but that is not logical. The PCT should already be funding discharge aftercare. Giving it more money for that purpose because it has had fewer discharges is as irrational as letting the hospitals have the money.
Like Amendment No. 89, Amendment No. 90 emphasises the local nature of the decision process. Clearly, there may well be a decision within the PCT to fund further services for patients who are discharged, but equally there are many health priorities on a local basis that should have a greater call on the money.
Amendment No. 92 deletes subsection (10) of Clause 4 and is a probing amendment. Under subsection (9), fines are to be paid—wrongly, we believe—to the hospital in which the patient is staying. However, subsection (10) allows the Government to specify in regulations that in certain circumstances the payments should go elsewhere. As usual, the Explanatory Notes are spectacularly unhelpful and restrict themselves to a précis of the subsection.
I am aware that the draft regulations recently published for consultation deal with payment being made to an independent hospital if care has been arranged by the NHS but for some reason the independent hospital is not being paid for that by the NHS. I certainly find it rather fanciful that an independent hospital would get itself in that position, but do not see the taking of fines from local authorities as anything like an appropriate solution. What other circumstances could possibly arise where another body should receive the fines?
In our debates yesterday, the Minister said that foreign hospitals treating NHS patients, under one of the Government's desperate attempts to reduce the waiting lists, would be covered by the Bill. I do not think that I am overstating the position when I say that Members of the Committee were astonished at that. Indeed, the very precise description used by the noble Baroness, Lady Barker, yesterday was "gobsmacking". I am sure that we will return to the consequences of that revelation on Report. For today, will the Minister confirm that subsection (10) would never be used to force UK local authorities to pay fines to foreign hospitals?
The amendments show how ill thought-out the whole scheme of fines on local authorities is.
Lord Hunt of Kings Heath: I do not really agree with the thrust of the amendments, which seek once again to remove clarity for responsibility under the Bill. All the time, a number of amendments seek to take us away from the clarity that is so important in making sure that the incentives and practices of different
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organisations work to the benefit of the individual patient. The point of the Bill is to provide a financial service or incentive for social services to invest in the community care services that are needed to prevent delayed discharge in the first place. It is not intended to provide a fund to spend on community services.
Logically, the money incurred from the penalty charge must go to the acute trust—it is the trust that cares for the patient—without any other funding for that care. The trust must be the key player in deciding how any funds are used. It is possible that the acute trust will set up an agreement with the local authority or the primary care trust in the way suggested, but that must be a decision for the acute trust.
The amendments, which suggest that the income from the reimbursement charge should not go to the acute trust but to the PCT or to a joint fund held between the PCT and social services, surely miss the point. The acute trust will have lost out through providing services to a patient who no longer needs to be in a bed, and it is the trust that should be compensated.
5.30 p.m.
Baroness Noakes: I thank the Minister for giving way. Can he explain how the acute trust loses out? The acute trust has service level agreements with PCTs involving great blocks of money that fund the trust. It is not funded on a per diem basis. If we were talking about America, I believe that I might agree with the noble Lord. But I simply cannot understand how the acute trust bears that amount of money.
Lord Hunt of Kings Heath: Surely the point is that if a patient is able to be discharged but cannot do so and occupies an acute hospital bed inappropriately while awaiting discharge, the hospital will be unable to treat other patients. It will thus be unable to reduce waiting times for other patients as much as is desired and possible. Therefore, the acute trust is directly affected.
The point about perverse incentives is very important. If a hospital engaged in practices which led to pressure to discharge patients either because it wanted to obtain the penalty payment or because of the necessary pressure on throughput of patients, what would happen? As Members of the Committee have remarked, it is likely that some of those patients would be readmitted. If they were readmitted, again there would be a knock-on effect on the hospital's efforts to reduce waiting times overall for patients because clearly a bed would be being used when it should not be.
Secondly—I suspect that we shall come later to the question of future funding flows when the funding flow system is fully up and running, an acute trust will receive a payment depending on the condition and care category of a particular patient, and there will be a national tariff for that. We intend to introduce a system whereby, if a patient is readmitted within a certain number of days, the trust will not be paid any extra resource.

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As to the question raised by the noble Baroness, Lady Noakes, concerning Amendment No. 92, the intention behind Clause 4(10) is to allow for payments to be made to providers when they bear the financial cost of a delayed discharge. It is not intended to deal with the circumstances we discussed yesterday concerning the scheme to treat people in other countries, pursuant to NHS arrangements set out in Clause 1. Clause 4(10) is not meant to deal with those issues.
As to the question of paying money to foreign hospitals, the primary care trust would receive that resource because the trust would pay for the care. Again, as will be seen from Clause 1, the primary care trust, as much as a National Health Service trust, is defined as an "NHS body".
Baroness Noakes: I thank the Minister for giving way. I understand that the primary care trust would levy the fine. But Clause 4 (10) states:
"If the case is of a description prescribed in regulations the payment shall be made to the person prescribed in relation to cases of that description".
I merely ask the Minister to confirm that the Government would never permit a regulation made under that subsection to be used to require fines to be paid to a foreign hospital.
Lord Hunt of Kings Heath: I thought that I had answered that point. That is not the intention of Clause 4(10).
Baroness Barker: This has been one of our less satisfactory discussions. I do not believe that the issue of the funding flow has been adequately addressed. I was particularly taken by the Minister's argument about loss of income to acute trusts. In response to that, I ask: why have the figures for the per diem rate been set on such an arbitrary basis? When asked about the funding basis for this scheme, the Minister in another place was far from convincing. I consider that to be one of the least satisfactory elements of the whole Bill. I believe that we shall have to return to the issue.
The noble Baroness, Lady Noakes, is right to raise the issue of the inclusion of foreign hospitals. I am not sure that logically she is right to say that it is possible to separate payments to them in that they provide services contracted by the NHS and just happen to be abroad. But she highlighted the fact that the matter needs to be given a great deal more thought, not least because of the implications for social services.
I shall withdraw the amendment for the moment but, in doing so, I flag up to the Government that we shall return to the matter and there will need to be a great deal more clarity when we reach later stages of the Bill.
Amendment, by leave, withdrawn.
[Amendments Nos. 90 to 93 not moved.]
Baroness Noakes moved Amendment No. 94:
Page 5, line 15, at end insert—
"( ) This section shall not come into force until 30 days after the Secretary of State has determined that the system of incentives within relevant NHS bodies operates to discourage NHS bodies from discharging patients prematurely."
The noble Baroness said: Amendment No. 94 seeks to add a new subsection at the end of Clause 4. This new subsection is important because potentially it defers the implementation of the imposition of fines, although, I stress, not other aspects of the Bill, which concern the giving of notices and the duties that arise thereon, or Part 2 of the Bill. It concerns only the imposition of fines. The amendment seeks to defer such implementation until there is a system of incentives within the NHS to discourage NHS bodies from discharging prematurely.
We believe that the Bill contains a massive incentive for the NHS to discharge a patient as rapidly as possible. We saw what happened in other parts of the NHS when the Government introduced targets, such as waiting list targets: clinical priorities become distorted. This system of fines is another version of government targets. It will distort normal behaviour in hospitals. Managers will see the opportunities inherent in the fines and act accordingly. That is what incentive systems do.
At the whole system level of the NHS there is a theoretical incentive to discharge patients as quickly as possible to maximise activity overall. But I do not believe that anyone can seriously think that that theoretical incentive operates at the level of the individual hospital.
The Government, when they came to power, made great play of pretending to abolish the internal market and replacing contracts with service level agreements. However, that set back the process of making contracts a relevant part of the incentive framework for hospital providers. So, rather soft and general service level agreements have blunted any incentives that might have existed before.
The Government have belatedly recognised that, with their new scheme of financial flows which will start to have a small impact next year. But even when fully implemented, the contracts will be quite big and quite broad, even though they will have case mix elements to them. It will be difficult for those broad and general contracts to bear down on the kind of geriatric episodes that cause the most concern with delayed discharges.
In a Written Answer to me the Minister stated that in 2005–06 the Government intend to:
"introduce the rule that a readmission within a specified time period will count as part of the same hospital episode and will not attract additional funding".—[Official Report, 4/2/03; col. WA 24.]
So we can at least deduce that it would not be until 2005–06 at the earliest that the NHS would have any kind of system of incentives to discourage NHS bodies from discharging patients prematurely.
We find that proposed new rule to be introduced in 2005–06 intriguing. Can the Minister say a little more about that? Can he say how many days will be used to

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trigger the charging arrangement? Will there be any need to link the episode of care that preceded the discharge with a reason for readmission? Can he say what happens if the readmission is to another hospital? Can he say what was the result of consultation on this point?
Consultation was referred to in a document entitled Reforming NHS Financial Flows—for those who managed to read the appendices—which was published last year. However, I believe that the results of that particular consultation have not been made public. The answers to these questions are important. However, more importantly we should not proceed with fining local authorities until corresponding incentives are in place in the NHS. I beg to move.
5.45 p.m.
Lord Hunt of Kings Heath: It is intriguing to debate the internal market with the noble Baroness, Lady Noakes. I have always understood her to be the architect; indeed, it has been said that she is the only person who ever understood the system. It is tempting to debate the internal market, but we do not have that much time.
The essential difference is that when the internal market was introduced in the early nineties, apart from the intrinsic unfairness of GP fundholding, the problem was that it was introduced without a background of national standards and inspectorates. The approach of this Government has been to start with establishing national standards and a national inspectorate in the belief that having done so we are then in a much healthier position to decentralise as much as possible to local level and to introduce the funding flow system, which unashamedly aims to incentivise those hospitals and health care services which have the ability to do best by patients. That is what we aim to do.
I shall turn in a moment to how we are to introduce the new system. The noble Baroness is right to suggest that the full system will not be up and running until the financial year 2005…06. The question is whether in the mean time there are enough incentives in place to ensure that we do not have the perverse consequences suggested by noble Lords.
I have discussed this issue on a number of occasions, and shall repeat the point. First, as regards trusts we have a strong performance management system in the health service. Secondly, the evidence I have seen is that in a significant number of parts of the country low readmission rates go with low delayed discharge rates. I do not think the case has been proved that to be effective on delayed discharges necessarily means high readmission rates. However, I am happy to write to noble Lords with the statistics I have for readmission rates in that regard as clearly it is a matter of interest. In addition, we have the Commission for Health Improvement. I have said that readmission rates are a specific performance indicator used to determine a trust's star rating. I do not believe that in this interim
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period it would be in the interests of a trust to discharge its patients too early and risk them being readmitted.
As regards the financial flow system, I note with interest the comments of the noble Baroness, Lady Noakes, regarding the degree to which the tariff is sensitive to the particular circumstances of a patient being treated. She will know that systems have been tried in a number of countries. We are introducing the new system on a gradual basis. In 2003–04 and 2004–05 it will cover only a relatively small proportion of hospital activity: less than I per cent in the first year and round about 8 per cent in the second year. We shall be able to reflect on experience as we introduce the scheme.
By 2005–06 over 90 per cent of hospital activity be covered by the new system. In theory, and indeed in practice, there would be less of a disincentive upon the trust not to discharge patients too early because the trust would know that it would get extra funding for them in any case if they were readmitted. That is why we have to set a period of time after discharge within which if the patient is readmitted to hospital the trust will not receive any further funding. I note the important and valuable point raised by the noble Baroness regarding the question of whether a patient had been admitted to another hospital. Certainly, we shall need to take account of that.
We shall consult on the appropriate number of days that would have to elapse before a readmission is counted as a new episode. I urge the Committee not to go down this path. The Committee has already voted to delay the introduction of the Bill by a very long time—12 months. If we were to accept the amendment tabled by the noble Baroness, the delay would be longer. I do not believe that that would be justified.
Baroness Noakes: I thank the Minister for that response. It is a pity we cannot spend longer today debating the internal market; both of us would doubtless enjoy that. I shall confine my remarks to the amendment.
The Minister asked us to look on performance management as taking some of the burden of ensuring that things work well in the NHS. There are those on these Benches who have always been less than convinced about the system of performance management on which the Minister has often fallen back when describing how things will work well in the NHS. We would not regard that as anything like an incentive system.
I welcome any information the Minister has on readmission rates. The statistics I have show that over the two years between 1999 and 2001 within two months the readmission rate increased from 19 per cent to 43 per cent. The proportion of that attributable to early discharge went up from 23 per cent to 45 per cent. The statistics present a real problem, hence the amendment. They occur without the additional incentive for hospitals to discharge patients in order to earn fines.

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The Minister has already suggested that it is a cynical approach to think that managers will organise their affairs in order to collect fines, but I think that it would be a rational response for any person in the NHS to try to maximise the available resources within an organisation. NHS bodies are not flush with money. If they see an opportunity to raise further resources they will use it. That would be a perfectly normal response within a trust. That is why we are so concerned that putting in the additional incentive of the fine system will make worse an already worrying position.
I shall reflect on what the Minister has said. I am far from convinced that the financial flow system is sensitive enough to cope with these episodes of geriatric care. In particular, I do not believe that the evidence from abroad—and I may be out of date—gives a strong feeling of comfort in this specific area. It may well deal with whole swathes of activity, but I am less than convinced that in this specific area it will work in a sufficiently precise way.
I shall withdraw the amendment today, but we may well return to the subject on Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4, as amended, agreed to.
Lord Clement-Jones moved Amendment No. 95:
After Clause 4, insert the following new clause—
"PILOT SCHEMES
The Secretary of State or the Assembly may by order establish pilot schemes for the operation of this Part in selected areas."
The noble Lord said: A key theme and worry for everyone, other than those on the Government Benches, is the animus that the Government seem to have against social care providers. It has run throughout the debate. As I remarked yesterday to the noble Baroness, Lady Andrews, the Government appear to have a kind of Jekyll and Hyde approach. On the one hand, they talk about partnership and whole system approaches, while on the other—whether they are lapses of the tongue, I do not know—yesterday the noble Baroness talked of her worry that local authorities would hold the NHS to ransom. Today, the Minister talked about self-serving statutory authorities. It seems to me that underlying—
Lord Hunt of Kings Heath: And I had in mind both health and local authorities.
Lord Clement-Jones: The Minister has added that now, but certainly his first knee-jerk reaction was to use—
Lord Hunt of Kings Heath: I may not have expressed the matter clearly, but I was absolutely sure in my own mind that I was referring to the health service as much as to local government.
Lord Clement-Jones: I am glad that the Minister has put that on record. But there appears to be this overlying animus against social care authorities. The
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major example is the Government's unwillingness to enter into any kind of pilot scheme to see whether their proposals can be implemented in a sensible fashion and if they will work. I hope that now we have achieved a sensible start date for the Bill—and I certainly hope that the Government will not seek to move it —the Government will take the opportunity to undertake some pilot schemes to see whether or not this will work. That would be a reasonable approach.
Given the anticipated difficulties with the Bill, it is essential that proposals are piloted prior to any implementation, so that a proper assessment can he made of its effectiveness as well as its damaging effects. Despite what the Government say about their experience of Sweden, there is no clear evidence—in fact, particularly because of the Swedish experience—that the Bill will have the intended effect. In Sweden, delayed discharge levels remain at the same level as here—that is, 6 per cent bed blocking is still current—which suggests that the Government's proposed model is highly unlikely to produce the benefits they hope will be achieved. Indeed, there is substantial evidence that the proposals will not address the problems.
In Sweden local authorities are responsible for both health and social care, which does not involve the pitting of one agency against another as it will in England and Wales, where the situation is radically different. Cross-charging is a fallback position, rather than the backbone of the system as proposed in the Bill. Particularly crucial is the fact that in Sweden arrangements other than cross-charging are available by local agreement with central government approval.
There was a two-year lead in to the new regime, which was still not long enough to get things right at the outset. That causes strong concern about the proposals to implement the Bill, even in April of next year. It also highlights the need for these proposals to be piloted prior to any decisions about implementation being taken.
In Sweden, existing health and social care partnerships were damaged by cross-charging. It has taken them 10 years to recover and rebuild. In Sweden, municipalities directly control 80 per cent of the residential and home care markets. In England, the totally fragmented, partly privatised market makes that much more difficult. In Sweden, it has been demonstrated that having community health and social care services within one authority is very important. Dispersed services here make the model inapplicable.
In Sweden, the reforms also included a corresponding shift of resources to municipalities, equivalent to the cost of keeping patients in hospital where delayed discharge has occurred. That is not so here. The Government propose to transfer some £100 million per year for the next three years, but in July 2002 the Department of Health estimated the actual cost of delayed discharges to be £180 million per year. Therefore, there is a projected shortfall of £240 mil lion over the next three years. It is clear that local authorities do not possess the resources to fund that gap.

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The Government bridle at the description of the Bill as "treating people like commodities", but it will mean that the focus of social care planning and implementation will shift to timescales and money, whereas it more properly should be on the patient and securing appropriate care. There will be a substantial distortion of care provision with far-reaching consequences. Local authorities will inevitably focus on trying to avoid fines and will therefore prioritise one-off care packages for those about to leave hospital rather than focusing on longer-term preventive services—for example, lowering the rate of unnecessary admissions.
The Bill will generate serious conflict between health and social care professionals, which can only damage already fragile partnership arrangements. There is a substantial risk that it will destabilise good arrangements already in place. If the Government disagree with that thesis, why not put in place a pilot scheme in order to demonstrate that we on these Benches and Members on other Benches are wrong? I beg to move.
Lord Hunt of Kings Heath: When I refer to failures in statutory services, I make it absolutely clear that I am referring both to the NHS and to local government. Since we debated the Bill at Second Reading, I have taken great pains to emphasise, first, that the NHS is as responsible as local government for some of the current failures in dealing effectively with delayed discharges; and, secondly, that the NHS will have to sharpen its act as much as will local government.
I re-emphasise the point made by my noble friend Lady Andrews that our concern is poor performance and poor practice, wherever it may be. It is clear that poor performance and practice adversely affect outcomes for the individual patients concerned.
As regards pilot schemes, I do not agree with the noble Lord on the matter. The first point is that already the NHS and social care services have existing responsibilities to discharge patients in a safe and responsible way. We are not introducing new responsibilities in that sense. We seek to put in place the right incentives to encourage both the health service and local government to do much better, in certain circumstances, than they do at present.
On the question of money, I have made clear that the larger figures that the noble Lord, Lord Clement-Jones, constantly cites embrace the cost to the NHS of dealing with delayed discharge, as well as that to local government. The figure of £100 million in a full year is our estimate of the actual cost to local authorities, which will be transferred from the NHS to local government.
The second reason I do not agree with the idea of pilots is that in the best performing authorities, health and social care partners are already working well together to reduce delayed discharges and to meet their responsibilities towards patients. The noble Lord cites Sweden. First, the Swedish changes were rather more
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fundamental than those that we propose because they included changes in service responsibility. We are making no change whatever to agencies and the services for which they are responsible. We are introducing a modest Bill to put in place the right incentives to enable improvements.
I have here an extensive list of local authorities that are doing magnificent work to improve the situation. Never mind Sweden: what about Barnsley? I have already cited its rapid response nursing beds in conjunction with private sector homes. That local authority has a particularly low rate of delayed transfers of care. A number of schemes are in place which have a strong focus on intensive rehabilitation and home care packages, with investment in additional staff and specialised equipment.
Never mind Sweden: what about Bristol? It has spent £88,000 on a rapid homes adaptation scheme, in conjunction with care and repair, to deliver 647 cases per year. There are many other examples in which good practice is already in place. There is no need for pilots. We really ought to get on with the job.
6 p.m.
Lord Clement-Jones: I thank the Minister for that exposition about Barnsley and Bristol—which anyone observing best practice would want to emulate. But the basic fact and the flaw in the Minister's argument is that no cross-charging is taking place in Barnsley or Bristol as we speak, nor is it intended to until the whole ramshackle edifice of the Bill comes into effect for the whole of the rest of the country. It is not a question of neatly targeting Barnsley and Bristol to see whether cross-charging will operate successfully there.
Lord Hunt of Kings Heath: The point is that I suspect that there will be no penalties or cross-charging in Barnsley, because it has worked intensively for at least four years to achieve a genuinely integrated approach to deal with those issues. That is the lesson. I do not want the system to have to be used at all. I hope that all local authorities and health services will recognise that if they follow the Barnsley path, the Bristol path, or that of other local authorities that I mentioned yesterday, there will be no need for penalties. This is a back stop with the right incentives so that statutory agencies at local level know that if they do not get their act together, they will be penalised—and so they should.
Baroness Noakes: The Minister is aware that local authorities and health bodies have been running a simulation to find out how the system will work in practice. He said that there will be no fines in Barnsley. He does not know that. When the simulation was run, unexpected things happened. That is what happens when such things are worked through.
It is quite possible that Barnsley, which is working well through a spirit of partnership, will find that spirit of partnership destroyed because, as we have suggested, manager will be set against manager in different parts of the system. The Bill will produce incentives for the wrong things to happen—including

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premature discharge. The Minister has not tested how the system of fines will work in practice: that is what pilot schemes are all about.
Lord Clement-Jones: The noble Baroness, Lady Noakes, is correct. That is the law of unintended consequences, to which this Government are as subject as any other public body. The mechanisms—the notices and requirements on both sides of the care/ health divide—set up under the Bill are complicated and extensive. They will apply just as much in Barnsley and Bristol as anywhere else in the country. If they are not piloted, we fear that the Bill will be an accident waiting to happen and that priorities will be completely skewed.
In a sense, I suppose that I should be impressed by the Minister's sheer chutzpah and confidence in the quality of the Bill's proposals and the optimism with which he looks forward to its full implementation, knowing that it will apply only to a small number of recalcitrant local authorities—and, perhaps I should say, some NHS bodies as well, who must obviously incur the Minister's wrath in order for him to be even-handed. We on these Benches are far less confident. I fear that the Bill is hurtling down a stony track, but only time will tell. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 96 not moved.]
Clause 5 [Ordinary residence]:
[Amendment No. 97 not moved.]
Clause 5 agreed to.
Clause 6 [Dispute resolution]:
Lord Clement-Joneshad given notice of his intention to move Amendment No. 98:
Page 5, line 28, leave out "may" and insert "shall"
The noble Lord said: It is vital under the terms of the Bill to ensure that the patient has the right to a speedy disputes mechanism that covers concerns that he or she may have about future NHS or social services care and that, while the dispute is being investigated, he or she should not be moved out of NHS provision.
It is manifestly unfair that, under the Bill, the health service, which will be levying fines on local government, should have sole responsibility for creating and maintaining the dispute panels as currently envisaged under Clause 6(1). Local dispute panels with an independent membership jointly agreed between the health service and local government would be far preferable, with adjudications of the panels binding on all parties, including local authorities.
I am sure the Minister will pray in aid the terms of the regulations which have emerged since the Commons debated the matter, but the terms of the dispute panel state clearly that there will be one representative of the NHS—who it appears will be an employee or officer of the NHS—one representative of local authorities, who will be determined not to have a conflict of interest in the case, as is right and proper, and a chairman, who is said to be independent of both
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NHS and local authorities. But they are determined by the NHS. The strategic health authority will effectively determine the composition of the panel. That is not right. Is not the way forward to have local authorities and the health service agree on the composition of the panels?
I know that the Minister reads European human rights cases extremely carefully. He may want to consult Salesi v. Italy, which recently emphasised the importance of independence in quasi-judicial administrative tribunals. That is an important case in the light of the way the Government intend to set up the panels. The amendments are intended to ensure just the kind of independence that the European Court of Human Rights has determined is appropriate. I hope that the Minister will consider how the dispute panels are to be set up by both the Bill and regulations under it.
Lord Hunt of Kings Heath: Clearly, the noble Lord is not interested in the "may" or "shall" debate. so I shall not respond to it. His comments relate to the next group. Will the noble Lord allow us to move on to that group, as the points that he raised are much more relevant to it?
[Amendment No. 98 not moved.]
Earl Howe moved Amendment No. 99:
Page 5, line 28, "Authority" insert "and local authority"
The noble Earl said: I am grateful to the Minister and the noble Lord, Lord Clement-Jones, as this is a more convenient way of ordering the business. As the noble Lord, Lord Clement-Jones, explained, we are back to the recurring theme of our Committee debate: equity and fairness.
The Bill properly provides for dispute resolution procedures to sort out the disagreements that are bound to occur between the NHS and local authorities on the penalties that the Bill imposes. Most would think it fair that such a procedure should be biased neither one way nor the other but that the composition of the panel should as far as possible be neutral and objective. Yet what do we find? The health service alone is to be responsible for setting up the panels that will adjudicate those disputes. Strategic health authorities, presumably in their well-advertised role as "head-bashers", are tasked with establishing and maintaining the panels. They may protest that they will be fair and even-handed, but we all know that it is not simply a matter of justice being done, but also about justice being seen to be done; hence the amendments that provide that local authorities should share the responsibility of setting up the panels.
I speak also to Amendments Nos. 100, 102, and 104 to 107 inclusive. Although the draft regulations are partly reassuring as to the composition of the panels, they are also vague. It is unclear, for example, how strategic health authorities will set about establishing panels. Will it be up to the strategic health authority to select the local authority member, or can the local authority submit its own nominee? There is to be a neutral chairman; but, if the choice of chairman is

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purely up to the strategic health authority, it leaves open the question of whether he or she enjoys the confidence of the local authority, which is an important issue. It would be helpful to have the Minister's explicit reassurance on those questions, if we are not to need a set of regulations to implement the implementing regulations. For those reasons my amendments would provide that the panels have independence from both the NHS and local government; that the chairman should be independent; and that the panels should comprise not only health service nominees but local government nominees also. There are strong arguments for such provisions.
Unless such a structure is put in place, we will have local authorities feeling aggrieved when a decision goes against them, because of the perception that the NHS is protecting itself. It is misleading to regard the acute trust and the strategic health authority as separate bodies in this context. They are both parts of the NHS, which is another reason why I find it uncomfortable that the very body responsible for imposing fines should be responsible for establishing the dispute panel. It already has a financial interest in ensuring that decisions go in a certain direction. I hope that those remarks will not be taken amiss by anyone in the National Health Service. But the approach looks wrong.
It is inexplicable that, under this dispute procedure, the panel's decisions are to be merely advisory. The Explanatory Notes say that the panel's recommendations are,
"not formally binding, although it is hoped that the recommendations will be accepted in most cases".
I am not sure what is meant by "formally" in that sentence. The panels will have a statutory underpinning in primary legislation. If their recommendations are not intended to bind the parties to the dispute, it is hard to see their point. The panels will have still less point if they are perceived as creatures of the NHS—a guaranteed excuse, if ever there was one, for their recommendations to be freely ignored.
The Minister may reply that the point of the panels is to prevent litigation. That is a worthy aim, certainly, but I do not understand how a panel that will be seen as lacking in objectivity will succeed in persuading the parties to desist from legal action. That thought brings us back to where we began; that is to say, the necessity—as I see it—of inserting amendments along the lines of those that I tabled. I beg to move.
The Deputy Chairman of Committees (Lord Ampthill): The Committee should assume that we are speaking to Amendment Nos. 99 to 108.
Lord Clement-Jones: I apologise to the Committee for speaking before the debate on this grouping. I hope that my earlier speech will suffice in support of the amendments of the noble Earl, Lord Howe, and Amendments Nos. 101 and 103, which are in my name and that of my noble friend Lady Barker. As ever, the
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noble Earl, Lord Howe, expressed the matter extremely succinctly. He has made an irrefutable case for the full independence of panels.
Baroness Noakes: I speak briefly to Amendment No. 108, which would require that,
"each independent panel shall publish annually the cost of dispute resolutions".
The Minister may recall that at Second Reading I raised the issue of costs of the scheme. The Explanatory Notes estimate that costs of £5.5 million will be incurred, but many believe that they will be much greater. If local authorities and the NHS bodies get into a significant number of disputes, which is likely because that is how the incentive system will work, the cost of running dispute systems could become significant. It will be important to keep the running costs under review. The purpose of Amendment No. 108 is to have an annual publication of the costs so that the Government, if they implement the scheme, might realise that it is not cost-effective overall.
Baroness Howarth of Breckland: I support the arguments put by the noble Lord, Lord Clement-Jones, and the noble Earl, Lord Howe. In view of the time, I shall not repeat the points that they made so clearly. I shall make two separate points.
In setting up many of the independent, non-departmental bodies and commissions that the Government have thought through recently, they have been careful to ensure that that independence is clear. In addition, the Minister has expressed his wish for even-handedness between local authorities and health authorities. Having panels set up by one party cuts across the principle of independence that the Government are trying to press. In local government, the approach will not be regarded as even-handed.
There are two particularly pertinent points. Scrutiny of the cases will not be easy. It will involve confidential information about cases and the behaviour of the parties involved. Therefore, transparency is not possible as it is in many other situations. Like adoption panels and similar bodies, one must be careful to ensure that scrutiny can be carried out independently. Therefore, the only way to ensure the transparency and independence of the process is to ensure that the parties are independent.
Finally, if the body is to have only an advisory role, who will make the decision if there is an appeal against a decision of the body and the health authority decides not to accept the advice of the advisory panel?
Lord Hunt of Kings Heath: I fully accept that there must be a sense of fairness on the part of local government with regard to the dispute panels. If local authorities do not have confidence in the panels, the system will not work. I understand the points that have been raised.
I am grateful to the noble Earl, Lord Howe, for the reference to my suggestion that the role of strategic health authorities was, partly, to bang heads together.

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However, that means hanging heads together in the National Health Service; the authorities become sensitive flowers in their relations with local government. They have no statutory responsibilities for local authorities. 'They have an important role to play in encouraging the health service and local government to work well together.
I know that Members of the Committee feel that the aim of the Bill is to have a go at local government. I disagree. There is nothing sinister about our reason for proposing that strategic health authorities should establish panels. There is no strategic equivalent in local government, and it would be more straightforward if we gave the responsibility to the strategic health authorities. It is worth bearing in mind that local authorities, unlike the strategic health authorities, will he parties to the disputes. In a sense, the strategic health authorities are removed from the essential day-to-day issues relating to delayed discharges and from the disputes that will arise.
I understand the points made by the noble Earl, Lord Howe, about the draft regulations. It is clear that we see the panel as being proportionally representative—one NHS person, one local government person, one independent person. My experience of the health service and of strategic health authorities is that one can recognise who the independent persons are.
I listened with great interest to the specific points raised by the noble Earl, Lord Howe, about the involvement of local authorities in helping to identify suitable people from local government to serve on the panels. I can assure the noble Earl that, as we discuss the draft regulations, we will listen with great interest to what the Local Government Association and the local authorities have to say. The last thing I want is a situation in which local authorities do not feel that a panel is fair and the chair not truly independent. It would be in no one's interest for the panels not to work well. I hope that I can reassure the Committee.
It seems proportionate and appropriate that the dispute panels' advice is not legally binding. We are not suggesting that we need the full panoply of statute or that decisions must have the full force of the law. That would put the dispute procedures into a different realm. The point of having dispute panels is to try to avoid litigation, as the noble Earl suggested. The noble Baroness, Lady Howarth of Breckland, will ask what is to happen if people are not happy with a decision or recommendation made by the dispute panel. In that case, they will have recourse to judicial review. I hope that there will be few disputes and that people will accept that the kind of panel we propose will come to a sensible, considered view. I hope that recourse to judicial review will be rare, although I accept that it is necessary that the Committee be made aware that such action is possible in the circumstances that I described.
I am not persuaded that we need to go down the path of statutorily requiring the publication of the cost of resolving disputes. I do not believe that the costs will be large. I suspect that the primary cost of bringing the case before the panel will fall on the disputing bodies.
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Overall, the costs will not be high. The cost of preparing and publishing separate accounts for such activity would, in many cases, be disproportionate.
I accept that the panels must be seen by the NHS and by local government to operate fairly and effectively. I assure the Committee that, in discussing the draft regulations, I will take on board the points raised. It is a straightforward matter to give the strategic health authority the task of establishing the panels. However, I recognise that they must do so in collaboration with local authorities and ensure that the panels are seen to be robust and fair.
Lord Lucas: That was a disappointing answer. The Minister chose not to address the substance of my noble friend's amendment. I would rather that he had offered some justification—if there is any—for not involving local authorities in the process. It is enormously important that the local authority concerned should have a sense of ownership of the panel. It should feel that it has committed itself to it, that it has been part of setting it up and that it has a responsibility to make sure that it works. That will not happen if the local authority does not have the right either to decide on its own member or to agree that the chairman is independent. I cannot see any disadvantage in allowing that.
The noble Lord can draw his regulations however he wants to make sure that a resolution is reached at the end of the day, but it seems odd not to allow the local authority a voice or a sense of participation in and ownership of the creation of the panel. The noble Lord says that he wants such things to happen, but he is considering a structure that will make that difficult. It is disappointing that he did not address that problem.
Lord Clement-Jones: My remarks will be cognate to what the noble Lord, Lord Lucas, said. The Minister has great faith that the panels will have the intended effect and will, in practice, be independent. However, he is not willing the means for such independence. If the Minister does not plan even to publish a review of the operation of the panels, how can we tell whether their operation is independent and effective'? That is the base case. If the Minister had confidence in the operation of the panels, he should be prepared at least to publish an annual review. As the noble Earl, Lord Howe, said, the Minister should at least be prepared to publish the cost of the panels as well.
Lord Hunt of Kings Heath: It would be going way over the top to create a statutory requirement to publish a review or details of the cost of the dispute panels. We shall all be interested to see how the panels progress, and I have no doubt that, as the system is monitored in the way that I described earlier, we will pick up issues relating to the dispute panels. However, we must be proportionate.
I have no problems with the idea of local authority ownership. We must Find ways in which local authorities have ownership and feel confident about the arrangements. All that I am saying is that, with 28 strategic health authorities, it seems sensible, for

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administrative convenience, to set up dispute panels that cover larger areas than those covered by individual local authorities. It is more straightforward. I accept that we must show that local government has confidence in the panels, and I suggested that we could take many of those points on board in the consultation on the regulations.
Earl Howe: I am grateful to noble Lords who took part in the debate. It has been useful, and I thank the Minister for his reply. As he said, the key objective is that everyone should have confidence in the panels. If they do not, his aspiration that their recommendations will be accepted in most cases will not be realised. I am sure that the way forward is as he suggested in his final remarks; that the Government should look at the draft regulations, take account of the comments on them and try to find ways of building a local authority involvement in the selection of the panels.
With regard to the amendment spoken to by my noble friend Lady Noakes, the essence of her argument was that that there should be a retrospective regulatory impact assessment of the dispute panels. After a period of time, we should be able to gain a sense of the burdens they are placing on the disputing parties. It is not merely a question of computing the cost of the panels in pounds and pence, but of all the work that goes into preparing cases, which will result in us being able to see the burdens to which, sad to say, the Bill will give rise.
However, I note the Minister's comments. I did not expect him to warm to the amendments, but they raise a fundamental point; that we are into the territory of further regulation, even though it is on the public rather than the private sector. I shall read carefully what has been said and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
[Amendments Nos. 100 to 108 not moved.]
Clause 6 agreed to.
Clause 7 [Adjustments between social services authorities]:
Lord Hunt of Kings Heath moved Amendment No. 109:
Page 6, line 5. leave out paragraph (a).
On Question, amendment agreed to.
Baroness Barker moved Amendment No. 110:
Page 6, line 19, at end insert—
"(d) to recover from the responsible NHS body expenditure incurred as the responsible authority for a patient's case in the performance of functions wrongly required of the social services department under section 2(1)(b)."
The noble Baroness said: Amendments Nos. 110 and 111 have not previously been spoken to. The Bill is unclear on the adjustments between social services authorities. Amendment No. 110 would give to social services departments the power to recover from the
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responsible NHS bodies costs which they had to make when they had wrongly been determined to be the responsible body. As a result of our discussions yesterday, Members of the Committee will be aware that the NHS decides which is the responsible local authority and not the local authorities themselves. It therefore seems only fair and equitable that if a social services authority has wrongly been deemed to be responsible for a patient's care, it should he able to recover its costs.
Amendment No. 111, which I accept is not well drafted, is a probing amendment. It deals with adjustments and the issues of ordinary residents. When older people have undergone acute hospital care, they often want to move. There may be good reasons for that desire; for instance, to be closer to their families. It is also the case that under the directive at their disposal they may choose to have their subsequent care in the authority. What will happen when different authorities have different charging regimes and different eligibility criteria? What will happen when different authorities run different financial assessments?
Under the Bill, what is deemed to be a responsible authority—that in which the person is deemed to live or to be registered with a GP and therefore a PCT—may find itself having to make payments and meet costs for services provided by another responsible authority which are wholly different. The Minister will correct me if I am wrong, but I see nothing in the regulations which covers that circumstance. It is not unusual because Members of the Committee may recall the instance cited by the noble Baroness, Lady Richardson of Calow, at Second Reading. It related to her husband. The PCT area in which he is registered is several hundred miles away from the area in which he lives in a residential home.
I apologise to the Committee if the nature of the drafting is somewhat deficient, but the two amendments seek to deal with those issues. I beg to move.
Lord Lucas: Will the Minister tell us what Amendment No. 109 was about? We rather hurried past it and I intended to ask questions on it.
Lord Hunt of Kings Heath: I apologise for that. The first amendment in the group, Amendment No. 97, was not moved and I am afraid that confused me. Amendment No. 109 tidies up an anomaly created by a previous amendment to Clause 2. Originally it was thought that regulations would be needed to deal with patients where there was uncertainty as to their ordinary residence. However, that uncertainty is now covered in Clause 2 by the fact that the NHS notifies the social services authority where the patient appears to be ordinarily resident.
As regards what is meant by "ordinarily resident", raised by the noble Baroness, Lady Barker, in some cases it is clear where an individual is ordinarily resident and therefore which council should have responsibility for providing the person with community care services upon discharge. However,

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the noble Baroness is right in saying that sometimes it is far from clear. For example, a person may have been living away from home for work, or with a relative for a period of time, before going into hospital. In such cases, it is necessary to consider the particular details of the case in order to decide where the person was ordinarily resident. That includes how permanent the move was.
Local authorities are well used to making decisions on such cases. In other cases, a patient's ordinary residence might change throughout the course of a hospital stay; for example, he and the person with whom he is living move house. In that case, the ordinary residence will change with the change of permanent address. Clause 7(2) therefore allows regulations to be made to provide for what will happen in such circumstances. That confirms that the arrangements for cases where ordinary residences are unclear, which are currently applied in such cases, cover all community care services and are formalised.
Local authorities are currently expected to, and indeed have to, take responsibility in respect of residential accommodation and other services under the National Assistance Act 1948, while any ordinary residence dispute is resolved. If the authority which provided the service is found not to be the responsible authority, it is entitled to be reimbursed for its expenditure. In this clause, we simply seek to follow the system through.
In practice, local authorities are used to dealing with disputes of ordinary residence in this way and we want to ensure that in future, regardless of whether a person's place of ordinary residence is in dispute, one authority will always take responsibility until the dispute is resolved.
The noble Baroness, Lady Barker, raised an interesting question about charging. Charging varies only for domiciliary care services and since they are delivered where the person is resident, it should rarely he a problem. If a person does decide to move, then the advice given is that the person should be informed of a change in charges and given the same level of care as previously.
On the general point, I think the Bill provides sensibly for the circumstances. It ensures that a dispute over ordinary residence is sorted out later, if it has to be, but that there is no hiatus in providing the services which need to be provided under the legislation.
Baroness Barker: I thank the Minister for that response. My amendments seek to address two issues: one is the question of ordinary residence, the other is the responsible authority. I am not sure that they are always the same. Indeed, I think that a distinction is made in the Bill.
I have read the consultation which led to the redrafted guidance covering the responsible authority. Although I do not have the consultation to hand—the Minister will correct me if I am wrong—where there is a dispute, one of the key determining factors is not where the person lives, but is where they are registered
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with a GP, and under which PCT area the general practice is registered. Perhaps the noble Lord will write to me on this point before the Report stage.
The point on which I seek clarity is this. When we discuss putting in place a seamless health and social care package for an individual following hospital discharge, one of the key elements that must be considered, aside from responsibility, is the question of who will provide and pay for those services. That may be clearer within the NHS than it is within local authorities. Thus the question of differences in rates for which services are charged has now become an issue. I am not sure whether the Bill necessarily 'takes the point fully on board. However, I am prepared to wait for the Minister to write to me on the matter.
Lord Hunt of Kings Heath: I shall be glad to respond to the noble Baroness if she wishes to write to me. However, I am not sure that I have followed the point. Here we are discussing the responsibility placed on the local authority. I do not see how registration with a GP comes into it. Perhaps I have missed a point, but it will be clear where the patient has been treated and thus which NHS trust is concerned.
Baroness Barker: Yes, the Minister is right on that point. However, we are talking about a package of continuing health and social care for a person who may have moved. That is the point I wish to make.
Lord Hunt of Kings Heath: If the noble Baroness would care to write to me, then I shall try to respond to her point. However, if a patient is registered with a GP, surely from that flows where the community services are to be provided; that is, around the GP and the primary care trust. It should be clear.
Baroness Barker: Yes, it should be, but I seek to make the point that some people are not registered with a GP, which is only one of the issues I am seeking to raise.
Lord Hunt of Kings Heath: I do not wish to delay the Committee, but there are well tried and trusted mechanisms within the NHS to deal with circumstances where a person does not have a GP. Again, I shall look into the matter. I do not think that there is a problem here.
Lord Lucas: I look forward to reading the Minister's answer should the noble Baroness write to him. I have experienced a great deal of confusion on this subject during my own life. On many occasions the NHS has been extremely uncertain as regards where I live and who should be responsible for providing me or my late wife with services.
Listening to the points made by the noble Baroness and thinking about my own history, I am not at all sure how it would have been possible to establish which local authority should have been providing services at a time when my wife and I had no particular fixed place of abode. We shuttled between other people's houses, sometimes in the country and sometimes in London.

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My wife was being treated at four different NHS hospitals for various aspects of her condition, while the GP was in a fifth place. That was because the GP happened to be someone with whom my wife got on well and wished to retain.
This point will present difficulties from time to time. I am sure that the noble Baroness understands these things better than I, but if there is a question to be clarified I shall be very interested to see the response.
Baroness Barker: Given the Minister's agreement to look further at the issue, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 111 not moved.]
The Deputy Chairman of Committees: Perhaps I may contribute to the confusion here. Amendments Nos. 109 to 111 were grouped with Amendment No. 97, which we must assume therefore were spoken to with Amendment No. 97. However, the Committee has moved on.
Clause 7, as amended, agreed to.
6.45 p.m.
Clause 8 [Regulations]:
Baroness Noakes moved Amendment No. 112:
Page 6, line 30, leave out from "instrument" to "House" in line 32 and insert "and any such instrument shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each"
The noble Baroness said: In moving Amendment No. 112 I shall speak also to Amendment No. 114. The amendment would require the regulations made under Part 1 of the Bill to be subject to the affirmative procedure rather than to the negative procedure envisaged in Clause 8. This is a familiar debate in Committee.
We are fortunate in that for this Bill draft regulations have been published. That is always useful when considering regulation-making powers. However, I shall permit myself one small whinge. Despite the fact that the Minister said that he would share the draft regulations with Members of the Committee, he did not say that he would wait a good 10 days before sending them. My copy arrived yesterday, although I suspect that it was ready last Friday, on Valentine's Day. I wonder whether the Minister chose to save them up rather than send me a Valentine's Day card. But noble Lords are resourceful; we used the website and so did not have to rely on departmental officials to send us correspondence in a timely way. That is my whinge put out of the way.
As we expected, the regulations contain many significant aspects of how the fines will work in practice. It is the detail that will help to determine whether the new scheme will work, as many suspect, massively to the detriment of local authorities. That is why in Amendment No. 114 we have proposed that
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there should be consultation with local authorities. I should say that that is what local authorities have themselves asked for.
I know the Minister will say that his department follows good practice with regard to consultation. But even if it is doing so with the current draft regulations, there is no guarantee that it will always do so. The key issue is whether consultation is a real or a paper process. We may well see the proof of that when considering whether some of the very serious concerns that have been raised by the Local Government Association find their way into the final version of the regulations. Going forward, local authorities are concerned that the regulations will be changed without their being involved. They would like that question put beyond doubt within the Act.
Given the concerns of local authorities in regard to the procedures, we are wary of giving negative resolution powers to the Secretary of State in this case. The affirmative procedure is more appropriate. I beg to move.
Baroness Barker: I speak to Amendment No. 113, which is grouped with Amendments Nos. 112 and 114. It is a probing amendment which is concerned with regulatory powers in Wales. I wish that the noble Baroness, Lady Carnegy of Lour, was in her place to make this speech, but she is not. Therefore I shall make it, but probably not as well.
I wish to ask the Minister a few questions in regard to Wales. Why does the National Assembly for Wales come under the remit of the Secretary of State in making decisions on these matters? Will the National Assembly have its own powers to determine the way in which relationships between the NHS and local authorities should work? Will the Assembly have the power to do what many of its members wish it to do, and that is to come to its own decisions in regard to personal care and the extent to which it should be free?
Lord Hunt of Kings Heath: As to the issue of Wales, I am almost tempted to invite the noble Baroness to join us in debating the Health (Wales) Bill next week, where she would have many happy times discussing these great constitutional issues.
As regards the question of the making of regulations, if and when Wales introduces Part 1 of the Bill, any regulations which need to be made to cover cross-border issues can be made jointly. This approach has been agreed with the National Assembly. But regulations in general fall for the Welsh Assembly to deal with, as it does with regulations for all primary care legislation.
The question of free provision of services and personal care in Wales is covered by Clause 13. That clause refers to Clause 12, which deals with the matter in relation to England.
I turn now to the more general issue of regulations and our old favourite of affirmative as opposed to negative resolution. I apologise to the noble Baroness, Lady Noakes, for the delay in sending by post the draft regulations. Knowing how much the Committee

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enjoys discussing regulations, I am sure that noble Lords would much rather receive a regulation than a Valentine's card on Valentine's Day.
The matter has been considered by the Delegated Powers and Regulatory Reform Committee which, as we heard from the noble Lord, Lord Brooke, yesterday, commented on the question of Wales and on the regulations under Clause 4(4) which prescribe the daily amount that a local authority must pay for the delayed discharge period. Other than that, the Select Committee did not draw attention to any concern about the way in which the regulations would be dealt with.
It is appropriate that the regulations should be introduced under the negative procedure. It would of course still be open for noble Lords to pray against the regulations if they wished to debate the issue.
As to the question raised by the Delegated Powers and Regulatory Reform Committee in relation to Clause 4, I shall bring forward an amendment on Report to deal with that point.
Baroness Noakes: I did not hear the Minister respond to the issue of consultation with local authorities.
Lord Hunt of Kings Heath: I apologise. My department hardly moves an inch without consulting local authorities on social care issues. We do not need to put it on the face of the Bill. We are consulting local government and will continue to do so. Local government should have no hesitation or worries on that score at all.
Baroness Noakes: I thank the Minister for his wholly predictable response to the amendments. Today is not the day to pursue the matter. I shall consider his response and perhaps return to it on another day. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 113 and 114 not moved.]
Clause 8 agreed to.
Clause 9 [Interpretation]:
[Amendments Nos. 115 to 119 not moved.]
Clause 9 agreed to.
Clause 10 agreed to.
Clause 11 [Power to extend the application of Part 1 to NHS patients in care homes]:
Earl Howe moved Amendment No. 120:
Page 7, line 22, at end insert "; and
(c) make it contingent on an assessment that continuing NHS health care is no longer required and that the patient has been informed of their review rights."
The noble Earl said: In moving Amendment No. 120, I shall speak also to Amendment No. 121.
Clause 11 allows the provisions of Part 1 to be extended at some time in the future to NHS patients in care homes—in other words, patients receiving intermediate care outside hospital. In this context, I
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note that intermediate care received within a hospital setting is specifically excluded from the scope of the draft regulations.
I shall make some general observations about the clause in a moment but, as regards Amendment No. 120, if a proposal is made to transfer a patient from a care home where he or she is receiving NHS-funded care to another care home where his or her care will be paid for by the local authority—indeed, there may not be a transfer involved; the patient may stay put—we must ask ourselves in each case who Is to say that that individual is no longer eligible for, or in need of, NHS-funded care? Who will make that inevitably subjective judgment, bearing in mind that the kind of care the patient may receive after being discharged by the NHS may not be qualitatively all that different from the care received under the heading of "intermediate"? The term "fit for discharge" may not be as clear cut as it is for a patient on an acute ward of a hospital.
The amendment proposes that an NHS patient in a care home should be entitled to a formal objective assessment on the question of whether he or she is or is not eligible for continuing NHS funding. The patient should also be told what avenues are open to have the decision reviewed if he or she does not agree with it. I have heard of cases in which fairly maverick and ill thought out decisions have been made by clinical staff that a patient was fit for discharge and where only later did it transpire that that was a bad clinical judgment.
Amendment No. 121 would amend Clause 11 by replacing the existing requirement for an order under the clause to be subject to the negative procedure with one which requires an affirmative procedure. My noble friend Lady Noakes has waxed eloquent on this issue already, but we all know that Ministers, given half a chance, will opt for the easy life of negative procedures. But it is the duty of the Committee not to allow that where the subject matter of the order deserves proper scrutiny. I believe that this is a case in point.
One has to conclude from Clause 11 that the Bill is a Trojan horse because it was introduced under the guise of the problem of delayed discharges of elderly people from acute hospitals caused by the lack of proper services provided by local authorities. But it is clear from the Bill that Ministers see a longer-term use for it. They appear rather to like the idea of fines and want to have powers to extend them. Clause 11 allows them to extend the fines to delayed discharges from care homes.
We on these Benches are far from convinced that even the narrow purpose of the Bill is necessarily its initial purpose. But we are absolutely certain that any extension of the Bill beyond those initial purposes should be subject to proper scrutiny. That is why the affirmative procedure is appropriate, notwithstanding the recommendation of the Delegated Powers and Regulatory Reform Committee. I beg to move.
7 p.m.
Baroness Andrews: I am grateful to the noble Earl for setting out so clearly the case for his amendment. It seeks to make any extension of the Bill to qualifying care home patients contingent on an assessment being carried out of the patient's need for continuing healthcare and on the patient being informed of his or her review right. It may help if I briefly explain the purpose of Clause 11—especially as it has been described as a "Trojan horse"—and why we cannot agree with the amendment.
Essentially, the aim of Clause 11 is to allow for the Bill to be extended to all those who are receiving intermediate care in the future, should we wish to do so. I should explain that intermediate care is a rehabilitation or therapeutic service which lasts, at most, for six weeks and which is intended to maximise individual independence, so that people can resume living at home. It is a very specific form of provision which leads—according to the Audit Commission, for example—to 60 per cent, or even 90 per cent, of people going home at the end of, or even before the end of, the six-week period. So it is a very positive and intense intervention. It can sometimes be provided in a care home as much as in a hospital. That is why the inclusion of care homes in the Bill is necessary to—ensure equitable treatment between these two groups of people.
I assure the noble Earl that the Bill will apply only to qualifying care home patients who are in intermediate care. It will not apply in any sense to any care home patient who is in need of continuing NHS care—such patients are in a very different position; they are chronically sick and have a continuing need for observation, support and medical assistance. Were it considered that a patient receiving intermediate care might need NHS continuing care because his or her condition had deteriorated, there is no need to state that on the face of the Bill. It would happen automatically by the normal intervention of the medical staff responsible for the case.
Perhaps I may address the question of assessment. The NHS must consider, when the patient leaves hospital to go into intermediate care in a care home, whether an assessment should be carried out, and indeed whether an assessment should be carried out before that judgment is made. If a patient needs continuing care, his or her discharge would be the responsibility of the NHS. However, in the light of the debate, we believe that it would be useful to look hard again at the guidance that will accompany the Bill, to ensure that it deals with the issues raised in relation to intermediate care and continuing care. I hope that on those grounds the noble Earl will be able to withdraw the amendment.
I turn to the affirmative procedure—on which we had a full exchange in a previous debate. This matter was obviously considered by the Delegated Powers and Regulatory Reform Committee and was found to be consistent with the principles that govern negative procedures. It is appropriate because it does not
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amend the Bill or bring forward new principles. What it does is to allow for the extension of existing provisions in the Bill.
The noble Earl declared that he has a problem with that, but it is not one that would justify reference to the affirmative procedure. Essentially, we are merely providing for the care to be the same, whether it is provided in a hospital or in a care home. I hope that the noble Earl will take that argument in the spirit in which it is intended.
Earl Howe: I am grateful, as ever, to the noble Baroness for the clarity and fullness of her reply. I thank her in particular for undertaking to bear in mind the concerns that I have raised in relation to Amendment No. 120 when it comes to formulating the guidance that will be issued. That is most helpful. I shall read her remarks in Hansard.
I suppose that I had not expected the noble Baroness to accept Amendment No. 121. However, I am not sure that, in turn, I accept her argument that, because the clause relates to an extension of the existing provisions of the Bill this did not warrant the affirmative procedure. I agree that the clause allows for an extension of the existing provisions of the Bill—but into new and different territory from that which has been the subject of our debates up to now, and the implications of fines and penalties relating to patients in care homes have to be considered with great care.
I thought that I would forbear from subjecting the Committee to a debate on clause stand part, despite giving notice of my intention to do so. I think that I shall still forbear from doing so. Nevertheless, one of the points I had intended to make was that new principles come into play here. I do not think that it is a silly proposal by any means to ask for automatic parliamentary scrutiny. Nevertheless, I have listened to what the noble Baroness has said. I shall reflect on her response between now and Report. For the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 121 not moved.]
Clause 11 agreed to.
Lord Clement-Jones moved Amendment No. 122:
Before Clause 12, insert the following new clause—
"PERSONAL CARE
Local authorities are not to charge for care, if that care is—

(a) personal care defined in section 121(9) of the Care Standards Act 2000 (c. 14) (general interpretation etc.) as assistance in connection with bodily functions,

(b) nursing care, whether or not from a registered nurse, and

(c) the care of a kind mentioned in Schedule (Social care not ordinarily charged for) to this Act."

The noble Lord said: We see this as an opportune moment to register the continuing interest of my party in securing free personal care. This will be familiar territory, and not only to the Minister. I see the redoubtable noble Lord, Lord Lipsey, in his place. He has taken part in many debates on this subject.
Four years ago, the Government established the Royal Commission on long-term care, of which the noble Lord was a dissenting member. Liberal Democrats welcomed the initiative, which offered the prospect of a fresh start and an end to the scandal of people being forced to sell their homes to pay for care.
The Royal Commission was asked to conduct its inquiry and report quickly, and it did so: in little more than a year it published a detailed report which analysed the problems, offered a practical blueprint and set out how long-term care could be reformed and funded for the future. The report was published in February 1999. It is now more than four years since the commission's work was initiated.
Over those years, a discredited, unfair and often unlawful system of means-testing has remained in place. People's means have determined the care that they receive, and more homes have been sold to pay for care. The Royal Commission said that charges for personal and nursing care should be scrapped. The Government themselves recognised in the NHS Plan that charges,
"increase the proportion of funding from the unhealthy, old and poor compared with the healthy, young and wealthy",
and that they should,
"discourage the use of necessary services".
Those are the words of the NHS Plan, but they are in the context of charges for NHS services.
This debate does not concern luxury goods and services that people choose to obtain, but essential and intimate—care tasks that frail, sick or disabled people would carry out for themselves if they had the necessary strength, will or knowledge. Long-term care is a contingency, not a probability. Its costs fall disproportionately on the sick, frail and disabled. That is why the Royal Commission said that personal care should be free, but on the basis of an assessment of need.
Contrary to the statements of some members of the Government and some government Back-Benchers, care costs will not run out of control in those circumstances. As Royal Commission member Claire Rayner said in a letter published in The Times, the tasks in question include,
"intimate personal care such as washing, feeding and help with lavatory needs".
People will not demand to be washed more often or to be helped to be fed more regularly merely because the service has become free. Care costs will balloon only if the level of unmet need in this country is far greater than the current Government or any previous one have been willing to admit.
The Royal Commission did not say that all costs should be paid by the state. It made it clear that the board and lodging costs of care should be met by individuals and said that we should expect to need to meet our housing costs throughout our lives. We believe that the costs of care are a risk that should be met collectively. By rejecting the Royal Commission's central recommendation, the Government are continuing a means test that discriminates against older people with chronic and long-term illness. If one
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has lifetime savings of £18,000 in a bank account, a pension or a home, one will be charged for one's care. Our care system should not be a substitute for a tax system. If the Government wish to redistribute money from better-off people, they should not use poor health as the criterion for accessing it.
What are the Government actually doing? They would like people to believe that they are acting on the Royal Commission's proposals for free nursing care, but that is not the case. They have chosen a very narrow definition of nursing care, and their proposals do not even make all nursing procedures free at the point of delivery. Only the costs of registered nurse time that is spent providing, delegating or supervising care is being met by the NHS, which will not pay for the time of the healthcare assistant or care worker who carries out the bulk of long-term care work. That most mean of definitions, which treats nursing as registered nurse time, is clearly provider-based and is a long way from being people-centred. How are the Government to disentangle the costs of nurse-provided care from those of nursing care that is provided by others? Care homes find themselves forced to measure costs and to cost the amount of nursing time that somebody receives. This produces a system that is costly, bureaucratic, rewards dependence and drives people into dependency.
It is notable that the Government deleted from the Bill at the very last stages of its passage through the Commons the power to make personal care free. That appears to demonstrate the Government's determination never to implement the Royal Commission's recommendations. I hope that this will, at the very least, be an opportunity for the Minister to set the record straight. I beg to move.
7.15 p.m.
Lord Lipsey: I am delighted to take part in the debate on the Bill. I apologise for not having been present for much of the Committee stage. I am afraid that this was pure cowardice on my part, because I have not wished to expose myself to being torn between my very great loyalty to a Government, of whom I am a supporter, and my feelings about the Bill. To put it as delicately as I can, somewhere along the line Homer nodded. But the red rag has now been waved at the bull, and the bull cannot resist charging.
Most of the arguments about free personal care remain precisely those that we debated during our long excursions into the field of free nursing care. It is wildly expensive, costing, on my latest estimate, some £1.5 billion a year. More importantly, it will rise to perhaps 12 or 15 times that level in real terms by the middle of the century. Every penny of that additional expenditure would go to the better off 30 per cent of the population, as the worse off 70 per cent are paid for in full at the moment. Actually, it would not go to the better off 30 per cent for long, but to their heirs, because we are not, alas, talking about people with a long expectation of life.
With that drain on resources, there would be no more money for carers, no improvement in intermediate care, no additional money for

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rehabilitation and nothing to improve the standard of care homes. Those are causes that Liberal Democrats claim to embrace, but the free care proposal would vitiate every one of them. It would be bad news for older people. This is the cuckoo in the nest that would consume all the available food, leaving the rest of the chicks to starve.
We have traversed this ground before. One thing has, however, changed since our previous debate. The Scottish Parliament, in its wisdom—and because of what I hesitate to call blackmail from the Liberal Democrat members of the coalition—has introduced free personal care. If you had attended to our earlier debates, you would think that by now the streets of Edinburgh would be lined with senior citizens heaping orisons of praise on the MSPs as they move forth to the Scottish Parliament, in view of the huge bounty that has been heaped on their head. That is what they said would happen. When we examine the proposals today, we do not need to gaze into the crystal ball—we can read the book. To quote Macbeth, the bad news,
"of an hour's age doth hiss the speaker"
when it comes to free personal care in Scotland. It has been a fiasco and a disaster. It is terribly sad when a person's gloomy predictions are borne out, but everything that I and other critics said at the time has been borne out, in spades and more.
Noble Lords will be aware of the survey of the problems of Scottish local authorities. Nearly half reported that despite the large sums that the Scottish Parliament has put aside for free personal care in its first year, it did not have the money to pay for it. What was the response of the Scottish Executive? It said, "You are quite right, there isn't enough money to pay for it after all. We will have prioritisation—we have no fear of that word". The whole point of the free care proposal was that there would not be prioritisation. It was something to which everybody had a right.
I recognise the argument that the noble Lord, Lord Clement-Jones, put so eloquently just now. Everybody would have a right to this—there would be no prioritisation. However, in Scotland there is a new form of prioritisation. At least in England the priorities are determined by people's income. If they have less money, they receive help. That seems to be sensible prioritisation. But the prioritisation in Scotland is not like that; it is simply a case of whether a particular local authority happens to have a load of money or whether it is prepared to drop all other forms of spending to pay for free personal care. It depends on pure chance, which is why the citizens of Scotland are not lining the streets of Edinburgh. They are writing and protesting, because some of them are getting these goodies while others are not. It is an injustice that dwarfs the injustice that preceded it.
What else is happening in Scotland? We all want to live in our own home when we get older and people should be helped to achieve it, but services to old people living in their own home are being slashed. I hear terrible anecdotes of councils telling people living in their own home that they cannot continue to
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provide a home help or the nurse who has been visiting them. When asked why not, the council says that it has to pay for free personal care. That is the priority of Liberal Democrat Members, but it is not mine, nor is it that of the older people affected.
In the meantime, while achieving nothing, this scheme is destroying the Scottish Parliament's budget. Only the other week the arts budget was slashed to pay for it. Some people would think that that was the right priority and some would not. But people in the arts in Scotland are up in arms because they say that Scotland's long-term artistic heritage is being bent to this purpose.
I understand that the Liberal Democrats have pretensions to being the leading party of opposition in this country. That is what its leader says. Perhaps this policy will be successful in that respect, because the noble Earl, Lord Howe, and his party have been robust in rejecting the free personal care proposals. So perhaps the Liberal Democrats will succeed in attracting votes by this policy, although I would prefer to call it buying votes or, indeed, bribing voters with their own money. It may make them the biggest party of opposition, but it disqualifies them from being regarded as a party of government, because government is about priorities and about tough choices. I have agreed with much that they have said about this Bill, but by adopting this proposal tonight they have shown themselves incapable of tough choices and tough decisions and of perceiving the true interests of older people.
I speak to those Benches because there is practically nobody else who still supports this proposal south of the Border. For example, I have noted—and I see the noble Baroness, Lady Greengross, in her place there—that the charities for older people, which are so vocal on this issue, have toned down their views because they see the sheer weight of opposing priorities.
This proposal is no more. It has ceased to be. It has expired and gone to meet its maker. This is an ex-proposal. What is tragic is that the Liberal Democrats, like the pet shop owner in the original sketch. cannot see it.
Lord Hunt of Kings Heath: I do not really want to intervene in what has been a remarkable debate. I am most grateful to my noble friend Lord Lipsey for his intervention on the amendment. I am also grateful that it is only on this amendment that he is has intervened, since he is in such sparkling form. I see that he is not overwhelmed by the Bill.
I need not go over the ground much more extensively than my noble friend has done. We decided some years ago that if we were to spend additional resources, they would be much better spent on services that truly focus on those who need them rather than using a huge sum for what, as my noble friend suggested, is very dubious output.
We made important changes in response to the Royal Commission. We raised the capital limit to entitle a person to keep more capital before he is charged. We allowed for the value of a person's home

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to be disregarded for the first three months in residential accommodation, which means that the moderately well-off now receive more of their care paid for from the public purse. We have done a lot to make the system of long-term care more reasonable. We introduced the deferred payment scheme to reduce the number of people who need to sell their home to fund their care.
We have made good strides in other areas, such as introducing new home care charging guidance and requiring a review of councils' eligibility criteria. Both measures were taken to make charging regimes more reasonable. We have taken a sensible decision on nursing care. We took a sensible decision that it is best for a qualified professional and nurse with the most complete knowledge of a patient's needs to determine the necessary care.
We have had to make a choice about where to spend our resources. We chose to spend the new resources on improving the quality and range of services provided for older people, in particular to promote independence support for people in their own homes and avoid unnecessary stays in hospital.
There is no getting away from choice. If we made personal care free as listed in the schedule, the 6 per cent growth in social services investment for the next three years to which we are committed would not be possible. I have not studied what has occurred in Scotland to the extent that my noble friend clearly has, but from time to time I observe the various cuttings and the comments coming from local authorities in Scotland that they do not have enough funds to pay for free personal care. Those who argue for free personal care never talk about the opportunity cost. It is plain to me that more important and relevant services are having to be robbed to fund free personal care.
The problem with free personal care is that it became a mantra. Suddenly, it would solve all the problems of looking after older people. It has proved to be the complete opposite. It is a cul-de-sac, it is costly, it is wasteful and we want nothing to do with it.
Lord Clement-Jones: I thank the two noble Lords who have engaged in this debate. I must thank the noble Lord, Lord Lipsey, in particular. He has come to this Committee holding his nose, in a sense. The rest of the Bill is clearly unacceptable to him, but only this amendment has tempted him out, retiring and shy as he is, to make a splendidly broad-ranging speech. Declamatory is probably the best description of the style. I thought Birnam wood had definitely come to Dunsinane during his performance.
The noble Lord, Lord Lipsey, clearly has strong views on this matter, but I thought he lifted his skirts somewhat in the course of his speech. He seems so anxious to make sure that those who have any assets at all have to pay for free personal care, that he is treating it as an alternative form of personal taxation. That is the nub. This is a Treasury-inspired issue. The Minister ranged fairly broadly, mainly painting a rosy picture of the Government's original proposals and the changes in the thresholds, and so on, but effectively the case is based on cost.
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I fail to recognise the description of the sit nation in Scotland from what the noble Lord, Lord Lipsey. had to say. To my knowledge, only one council—I think it is the Highlands and Islands council—has complained in a major way about the resources available, which were based on its own assessment. Negotiations took place subsequently. The scheme in Scotland is expensive, but the political priorities of the Scottish Executive—a joint partnership executive of Labour and Liberal Democrats—were such that they believed that was a priority for their expenditure.
Lord Lipsey: What is the noble Lord's explanation of the report in The Times of 18th November, which describes three councils by name on top of the Highlands and Islands council—East Dunbartonshire, Argyll and Bute and West Lothian—which had warned that their budget had run out?
Lord Clement-Jones: I believe that the noble Lord, Lord Lipsey, asked a Starred Question on that matter at the time. I specifically checked with Liberal Democrats in Scotland. Those issues had already been resolved by the time the article in The Times came to fruition.
Lord Lipsey: Would the noble Lord prefer to use as a source the Liberal Democrats in Scotland or The Times newspaper?
Lord Clement-Jones: It all depends on whose information is more up-to-date. If the information comes from the Scottish Parliament and the Scottish Executive, one would normally think that it is reasonably authoratitive. The noble Lord. Lord Lipsey, has made an extravagant claim about the experience in Scotland. When it comes to evaluation, I am confident that the Scottish system, which arranges for support for personal care to go direct to the individual, will be vindicated. I hope evaluation will take place, whether by the Audit Commission or another inspection and audit body. There are legions of bodies which I am sure could carry this out.
The experience in England has been that the care homes have put up their charges and, by and large, have absorbed the nursing care fees. I believe that is wrong. I believe it was not what the Government intended. If we compare the two systems over a period of time, I think that the Scottish system of free personal care will be greatly vindicated. No one expected it to be a cheap option. It was done with everybody's eyes open and the Scottish Executive has had to make some difficult decisions about funding.
7.30 p.m.
Lord Hunt of Kings Heath: In suggesting that free personal care will turn out to be the most effective option, does the noble Lord accept that any evaluation will also have to take the opportunity cost into account? In other words, what will have to be restricted in order to fund personal care? I suspect that

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services that make people more independent in areas such as intermediate care may well suffer because of the cost of free personal care.
Lord Clement-Jones: I do not believe that it is a zero-sum game. I believe that domiciliary care and personal care at home are extremely important. Such a system does not create perverse incentives to stay in care homes, but it does encourage people to stay at home. I also think that we can achieve a great deal with prevention. This is not a matter of spending on care homes as opposed to spending on domiciliary care. We have to see it as a totality. One of the mistakes people make is to look at this as simply a matter of ring-fencing money for each activity.
We are clearly not going to agree. I do not believe that "other services will be robbed"—which is the phrase that I think the Minister used—if we have free personal care. We have to look at this in totality. I believe that it is still too early simply to rely on articles and reports in The Times to see whether the Scottish experience is a good one. However, I am confident that that will stand the test of time and that the comparison with England will be favourable. Meanwhile, since the amendment has had such a tremendous reception, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 [Free provision of services in England]:
[Amendments Nos. 123 and 124 not moved.]
Baroness Barker moved Amendment No. 125:
Page 8, line 9, after "charge" insert "and in which equipment that is community equipment as defined in the Guide to Integrating Community Equipment Services is to be provided free of charge"
The noble Baroness said: In the full knowledge that the noble Lord, Lord Lipsey, is still with us, I move on to another group of amendments that he may wish to attack with similar vigour, although I hope that he will not. At first glance, these amendments may seem somewhat simplistic and even invite mockery in some quarters, but I hope that they do not. The amendments deal with what happens daily to old people who are discharged from hospital. They deal with the very small things that can make a difference between a successful discharge and life being made unbearable. Due to the lateness of the hour, I shall not detain the Committee with anecdotes. I wish that I had the time to do so. I shall confine myself to making two distinct sets of points, the first on the definition of free equipment, and the second on intermediate care.
The Explanatory Notes list only a few items, ranging from walking sticks to grab rails to shower mats. That is not a very clear indication of the types of equipment likely to benefit older people. I ask the Minister for an assurance that the guidance will make it clear that, at the minimum, the equipment listed in the Guide to Integrating Community Equipment should be free. The Government should indicate what will be free in order to avoid wide variations between local authorities and a lack of understanding among staff
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about what is free. I take the Minister back to our debate on the Health and Social Care Act. I recall that, precisely one week after he said in this Chamber that incontinence pads would be absolutely and unequivocally free, a gentleman said on the radio that his hospital had started to charge him for them. I ask for clarity on this point.
The regulations link community equipment to Section 2 of the Chronically Sick and Disabled Persons Act and Section 2 of the Carers and Disabled Children Act. The regulations also define "minor adaptations" as something which costs less than £1,000. How was the £1,000 figure reached? What types of adaptations will the £1,000 cover? What adaptations will it not cover? What are the Government's plans to uprate the limit, or will it be one of those limits that stands for ever? Is the figure intended to be inclusive or exclusive of the cost of fitting adaptations, or does it apply solely to the cost of the equipment?
Some equipment and adaptations are provided by the NHS and are therefore free regardless of expense. We need clarity about when the NHS will provide an adaptation as a part of meeting an individual's healthcare needs and when the individual will have to apply for it to social services or a housing department. Will the guidance also make clear which equipment is provided by nursing care and which by the NHS? The provision of such equipment should be reflected in the fees charged by those homes. Although there is guidance on the matter, there is still a lack of clarity.
I turn finally to the limit on intermediate care. At Report stage in the Commons, the Minister absolutely and firmly slammed the door on the issue of six weeks' intermediate care. The draft regulations say that if intermediate care has to be provided for longer than six weeks, the first six weeks are to be free of charge. That might imply that local authorities have the discretion to continue providing intermediate care, for which they will charge after six weeks. Can the intermediate care time limit be extended at the discretion of the professionals involved in looking after the person? If not, after the absolute deadline of six weeks, will people be told that intermediate care is no longer free? At that point, will there be an assessment of their ability to pay the costs?
I notice that the noble Lord, Lord Lipsey, seems happy with that approach. I look forward to the Minister's reply. I think that those points go right to the basis of the Bill. I beg to move.
Earl Howe: I rise to speak to Amendments Nos. 126 and 131, which are grouped with Amendment No. 125.
Amendment No. 126 inserts some fairly important words at the end of subsection (2) of Clause 12, the effect of which is to require via regulations that a patient is informed of two things: first, the costs of long-term care arrangements after his free period of services; and, secondly, the assessment that is made for continuing NHS care and community care services to be provided. The provisions of Clause 12 are in general welcome. They provide for various services to be provided free of charge to patients when they are

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discharged from hospital. However, the patient also needs to be aware of what awaits him at the end of that free period, especially when he has been in intermediate care and it is intended that he move to a long-term care setting which will not be free. Patients need to know what they are letting themselves in for. That is particularly the case where means testing involves payments by individuals for their long-term care. If we are not careful, patients will be placed on a conveyor belt which leads inexorably towards care they must pay for. Once on that conveyor belt, it may be difficult for the patient to get off. Patients need information which allows them to challenge what is being provided so they are not being just dragged along.
I do not think that this is in the least fanciful. An old person was transferred to a care home without it being clear who would pay. Then, when a considerable bill was run up, the patient's family was faced with a sizeable payment demand and was confronted with either paying up or having the old person removed from the home. That is an invidious situation for everyone concerned. I hope that the Minister will welcome the opportunity for patients to be given a say in their long-term arrangements.
Amendment No. 131 largely reflects the arguments put forward by the noble Baroness, Lady Barker. I believe that the Government should think again about the cut-off point of six weeks specified in the clause. As a rule, six weeks is ample time for intermediate care but there are cases, such as serious strokes, where it is not. There needs to be flexibility to ensure that such cases can be catered for. The Department of Health's current guidance singles out strokes as an example of where intermediate care might extend longer than the six-week norm but only on the basis that the patient is fully re-assessed and the extension is authorised by a senior clinician. That is the model I propose in my amendment.
Baroness Greengross: Will the Minister clarify a point which follows from Amendments Nos. 130 and 131? If someone is in intermediate care within an NHS hospital, would a Section 2 notice still be given to the social services department? Who would pay for that? I support very much what Members of the Committee have said with regard to people who have suffered strokes for whom rehabilitation is absolutely crucial. One cannot always guarantee that that rehabilitation will not be necessary after six weeks. However, it makes a huge difference to people's rate of recovery.
7.45 p.m.
Baroness Andrews: I reassure the noble Baroness that there is absolutely no intention to make a mockery of the principle of including lists in the Bill. I am sure that the small items of equipment make all the difference. Would that everything that the NHS provided was as effective as certain small, cheap items such as bath rails, zimmer frames and so on. We are sympathetic to the intentions behind Amendments Nos. 127, 145 and 125 and, indeed, the amendments concerning community care services.
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However, whenever one tries to include a list in legislation, one always runs the risk of accidentally excluding something or accidentally restricting provision or including things inappropriately. The provision in Amendment No. 127 is based on the list in the Department of Health's community equipment guidance and it follows that list closely. However., that leaves out communication aids while including other things. I refer to walking sticks, bath mats and so on. All those pieces of equipment are of equal importance to the person for whom they are intended but the amendment would have the effect of excluding the former but including the latter. We have to be extremely careful that we do not accidentally exclude, reduce or limit the services which are provided free of charge. It is wise not to run that risk.
Amendment No. 125 refers to the department's list of community equipment services. Amendment No. 127 was based on the list; Amendment No. 125 actually refers to the list. If we accepted those amendments, we would have two slightly different lists defining community equipment services. Amendment No. 125 would exclude from free provision such items as vibrating clocks and canes. We do not include such detail on the face of the Bill or in the regulations as the purpose of the clause is not to restrict what can be given or to interfere in local authorities' decisions about the best choice of equipment. It is much better to let social services and users decide.
During the drafting of the Bill we consulted with the department's user group on community equipment services which was keen not to have a list of eligible equipment. So our approach is pragmatic. It reflects what people on the ground want. It does not dictate to local authority social services departments.
I turn to Amendments Nos. 128 and 146, where a similar problem occurs. The list in regard to intermediate care in Amendment No. 146—I am sure that this is accidental—leaves out some important aspects of intermediate care. There is no mention of rapid response teams or hospital at home schemes—two important schemes which provide immediate support to people in their own homes. We are not content to accept the amendments. However, we shall reconsider the guidance in the light of what has been said. We need to make clear what services are available and that certain equipment is free.
I shall try to answer some of the questions that have been asked. I refer to the £1,000 limit to what can be provided without the community equipment being described in terms of a disabled facilities grant. Equipment costing more than £1,000 is likely to be used in a small number of complex cases which require the installation of, for example, overhead hoists, concrete ramps, special beds and so on. Community equipment costing less than that sum tends to comprise the vast majority of items which can range from a bath board costing £15 to an alarm system costing £700. The majority of items cost less than £1,000. I understand that the average cost of items is about £70. I do not know whether the £1,000 figure includes the cost of installation. I shall have to find out about that and then inform the noble Baroness.

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The noble Baroness also asked about the limit on intermediate care. I address that point in relation to Amendments Nos. 130 and 131. Amendment No. 130 opens the prospect of another lively debate on free personal care.
The effect of Amendment No. 131 would be to make residential accommodation free of charge only for as long as local criteria stipulate that services may be provided free of charge. That raises the question of the six-week period. The six-week period makes good sense. We have good evidence from the district audit review that average lengths of stay for intermediate care services are less than six weeks. District audit in 2000–01 reviewed 213 current intermediate care services and developed a methodology. The survey showed that the average length of stay was between 12 and 26 days, well under six weeks. Even where the primary purpose was social care, the average length of stay was 29 days. That is quite a generous period. For residential intermediate care, the average was 31 days. We therefore have solid evidence that social care is typically provided for less than six weeks.
In relation to the questions raised about discretion, I want to say that the six weeks is a firm guide. However, if someone needed six and a half weeks' care, for example, we would expect social services to use their common sense and ensure that the people in need were put centre stage in terms of the decision. For example, in Ealing there is very good practice, as I am sure that there is in other places. Up to six weeks' home care there is made free as part of a scheme to maintain adults at home safely. Arrangements are made for any further needs to be picked up by the mainstream services. The pathway is very clear. There is better flexibility, and local authorities have to plan properly for onward care. If accommodation is needed, social services have the opportunity to help people out for up to eight weeks without means testing in local authority accommodation.
The noble Baroness, Lady Greengross, asked about the Section 2 notice and whether it would apply to intermediate care. It does not, as it is specifically excluded. Intermediate care is free for six weeks and we do not intend to interfere with that.
I move on to Amendment No. 126, which was spoken to by the noble Earl, Lord Howe. We are unhappy about it in two respects. I appreciate the emphasis on proper assessment at the appropriate stages. Good practice should already ensure that a care plan is drawn up for intermediate care, based on an appropriate assessment before the person leaves hospital. Obviously, it should include anticipated outcomes, a clear idea of what happens after intermediate care once the period of rehabilitation is over, and a review at the mid-point to check progress and make adjustments if necessary. We made that point in the intermediate care guidance last year, so it should be extremely clear to people who need to know it.
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The guidance issued on single assessment and fair access to care also emphasised the importance of reviews. The definition of intermediate care in the guidance refers to provision,
"on the basis of comprehensive assessment".
and "cross professional working". Our concern is that if we add another mandatory assessment process, we will have a confusion of assessments. We already have in place the single assessment process. The local authorities already have a specific duty under Section 47 of the National Health Service and Community Care Act to assess a person's needs for community care. As we discussed yesterday on various amendments, if social services want they can refer to housing services and ask for their involvement in the assessment process. Simplicity and proportionality is important in getting the assessment process right and to avoid duplicating each other's assessments. We are backing everything up with a new target for assessments of a 48-hour commencement and four-week completion.
On the question of costs, I simply say what I said yesterday. One of the fundamental duties that stems from the fact that social services are public bodies that exercise public functions means that they must give all proper information to a person so that he can make an informed decision about whether he will accept services. That includes information about the cost of any care. If that does not happen, they are definitely failing in their duties as a public body. I hope that that will be helpful.
Intermediate care seems to work very successfully. I shall again give the figure that between 65 per cent and 90 per cent of people return home to independent living after intermediate care. It is at that point that the aids and adaptations are so critical to that successful return.
I shall speak to a series of small consequential amendments on behalf of the Government. Government Amendments Nos. 133, 135 and 137 simply tidy up the drafting of the clause to reflect the heading of Clause 12, following amendments to the clause during its passage through another place. The amendments make it clear that services to carers will be made free as well to all other people as a result of Clause 12. The change to the heading of the clause reflects the inclusion of services for carers in the clause, and we need to reflect that change in the consequential amendments. I hope that the Committee will support us in attempting to tidy up the Bill.
Baroness Barker: I thank the Minister for her characteristically comprehensive reply. I very much welcome the commitment to produce clearer guidance. That will be enormously helpful.
I am a comparative novice; I have been around this track only once or twice before. Nevertheless, I recognise the drill that any list prompts a response that it will be exclusive. That is why the amendments—I say this in defence of them—were drafted so that they would not be. The list would include, but not be limited to, certain items. The wording was particularly

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designed to bear in mind the fact that there are innovations in equipment. Equipment changes, and things come along that are inestimably better than before.
At a different stage, I might like to take up one or two more issues, particularly those about means testing for items for which the disabled facilities grant may come into play. We may be talking about people having to have ramps built and so on.
When the Minister dealt with intermediate care, I was astonished at her assertion that local authorities would be allowed to use their common sense to extend over a period of six weeks. That runs contra to the ethos throughout the Bill. When time equals money as much as it does in relation to such matters, given the direct consequences for budgets, the freedom for practice managers on the ground to make such decisions will become less and less.
I took some heart from what the noble Baroness said in response to the noble Earl, Lord Howe, about information to people. However, I am concerned on the provision of so-called free nursing care. When one begins to hear of cases, as I have done recently, where people suddenly find that the free nursing care provided to their relatives and care charges have gone up in bandings accordingly for no reason whatever, I begin to worry about the strength of individuals to stand up to some of the systems as they are imposed on them.
I believe that small pieces of equipment make more difference to individual people's lives than much heavier interventions. I shall go away and consider in Hansard what the Minister said. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 126 to 131 not moved.]
8 p.m.
Earl Howe moved Amendment No. 132:
Page 8, line 38, at end insert ", save that the first such statutory instrument under this section shall not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament"
The noble Earl said: This amendment seeks to amend Clause 12(6). As I said, we welcome the provision of free services to patients following their discharge. However, it would be extremely helpful to know what is intended to be covered. Neither the Explanatory Notes nor the draft regulations are particularly helpful. There is great interest in many quarters about the precise coverage of Clause 12. That is why we are proposing that the first statutory instrument under the clause should be subject to the affirmative procedure. We are not asking that every amendment to the regulations should come to both Houses of Parliament for approval; we are simply focusing on the first statutory instrument.
The underlying assumption is that that first SI will be a meaty one, containing the way in which the scheme will operate at the outset. I know that this procedure will have been used with other Bills involving other government Ministers and that it has
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worked very successfully. Therefore, I hope that the Minister will not throw it out of court completely but will perhaps think about it. It is a substantive matter which we shall not have had the chance to debate as the Bill has progressed through the House. I beg to move.
Lord Hunt of Kings Heath: The noble Earl, Lord Howe, is tempting me to read out a list. I cannot go that far. I believe that the Explanatory Notes in relation to Clause 12 give a broad indication of what is meant to be included. As the noble Earl rightly said, subsection (1) confers the powers to make regulations which will define the services that are to be made free of charge. It is intended that the services to be so defined will be the provision of community equipment and intermediate care. The Explanatory Notes go on to give a broad indication of what is meant by that.
So far as concerns the question of the affirmative resolution, I listened very carefully to what the noble Earl said. However, I am not convinced that it is justified for this to be an affirmative resolution; neither do I accept that the negative procedure gives inadequate parliamentary scrutiny for these policy proposals—not least because the rules regarding charging for residential accommodation are mainly set out in regulations subject to the negative procedure. In respect of other types of charging, a discretion is given to local authorities, subject to guidance issued by the Secretary of State.
I can assure the Committee that, in developing the regulations, we shall wish to consult all the parties who have an interest. I believe that that should cover the point raised by the noble Earl, Lord Howe, concerning full involvement in the process of developing the regulations. Ultimately, it is open to him to pray against the regulations at the time if he so wishes.
Earl Howe: I thank the Minister for that somewhat disappointing reply. I shall consider what he said. I did not think that my proposal was unreasonable. However, I know that Ministers tend to resist wherever possible the idea of automatic parliamentary scrutiny for statutory instruments. It is possible to pray against a negative instrument in this House but, as the noble Lord will know, in another place a Prayer can be laid but may not be selected for debate. However, I do not wish to pursue the matter further today. I shall read what the Minister said and consider it but, for the time being, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 agreed to.
Clause 13 agreed to.
Clause 14 [Consequential amendments]:
Lord Hunt of Kings Heath moved Amendment No. 133:
Page 9, line 7, after "services" insert "and services for carers"
On Question, amendment agreed to.
[Amendment No. 134 not moved.]
Lord Hunt of Kings Heath moved Amendment No. 135:
Page 9, line 12, after "services" insert "and services for carers"
On Question, amendment agreed to.
[Amendment No. 136 not moved.]
Lord Hunt of Kings Heath moved Amendment No. 137:
Page 9, line 19, after "services" insert "and services for carers"
On Question, amendment agreed to.
[Amendment No. 138 not moved.]
Clause 14, as amended, agreed to.
Clauses 15 and 16 agreed to.
Clause 17 [Short title, commencement and extent]:
[Amendments Nos. 138A to 142A not moved.]
Clause 17 agreed to.
[Amendments Nos. 143 to 146 not moved.]
House resumed: Bill reported with amendments.

Courts Bill [H.L.]
8.7 p.m.
The Parliamentary Secretary, Lord Chancellor's Department (Baroness Scotland of Asthal): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Scotland of Asthal.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Viscount Simon) in the Chair.]
Clause 79 [Power to change certain requirements relating to Committee]:
[Amendment No. 115 not moved.]
Clause 79 agreed to.
Clause 80 [Process for making Civil Procedure Rules]:
[Amendments Nos. 116 to 120 not moved.]
Clause 80 agreed to.
Lord Hunt of Wirral moved Amendment No. 121:
Before Clause 81, insert the following new clause—
"APPEALS TO COURT OF APPEAL: REFERENCES BY THE CRIMINAL CASES REVIEW COMMISSION
(1) In section 9 of the Criminal Appeal Act 1995 (c. 35) (cases dealt with on indictment in England and Wales), after subsection (4) there is inserted—
"(4A) In proceedings before the Court of Appeal following a reference under subsection (1), the appellant's grounds of appeal shall be restricted to the matters specified in the Commission's statement of reasons given under section 14(4), unless the Court of Appeal grants leave to the appellant to include other matters in the grounds of appeal."
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(2) In section 10 of the Criminal Appeal Act 1995 (c. 35) (cases dealt with on indictment in Northern Ireland), after subsection (4) there is inserted—
"(4A) In proceedings before the Court of Appeal following a reference under subsection (1), the appellant's grounds of appeal shall be restricted to the matters specified in the Commission's statement of reasons given under section 14(4), unless the Court of Appeal grants leave to the appellant to include other matters in the grounds of appeal.—
The noble Lord said: Amendment No. 121 stands in my name and that of my noble friend Lord Kingsland. The Criminal Appeal Act 1995 was a landmark achievement of the previous government, welcomed on all sides of the Chamber for establishing a framework for the correction of miscarriages of justice. I pay tribute in particular to the work of my noble friend Lady Blatch in piloting that Act through this place.
The amendment has its origin in the recent comments of senior judges in the Court of Appeal who have raised the issue of whether the existing provisions in the Criminal Appeal Act 1995 are as effective as they might be because they allow an unfettered discretion to appellants whose cases have been referred to the Court of Appeal by the Criminal Cases Review Commission to raise any grounds of appeal, even ones which had not been considered by the CCRC and, indeed, even ones which were specifically rejected by the CCRC.
Normally, an appellant is able to argue before the Court of Appeal only those grounds which he or she has at an earlier stage been granted leave to argue. The amendment would restrict an appellant who was before the Court of Appeal following the referral of his case by the commission to use as the basis of his appeal the grounds given by the CCRC in its statement of reasons for making the reference unless the Court of Appeal granted leave to extend the grounds of appeal. I confess that the wording of the amendment is based on the recommendations for change set out by the Court of Appeal.
In the case of R v Garner [2002] EWCA 1166, the Vice-President of the Court of Appeal, Lord Justice Rose, said at paragraph 10 of the judgment that:
"by virtue of section 14(5) of the Criminal Appeal Act 1995, the somewhat curious situation arises that, once a case has been referred to this Court by the Commission and, in consequence, is treated as an appeal, it is open to an appellant to argue any ground, once the matter has been referred. An appellant is not limited to those grounds on which the Commission refers the case".
In the case of Re v Smith, [2002] EWCA Crim 2907, Lord Justice Buxton said, in giving the judgment of the Court of Appeal at paragraph 25, after referring to the judgment of Lord Justice Rose which I have just quoted:
"Lord Justice Rose described this as a somewhat curious situation. We would, with respect, go somewhat further, and say we have to find it very surprising indeed that this licence is given to a person who benefits from a CCRC reference, and particularly surprising to find that in this case, as we do find, that approach is open to an appellant even in respect of a ground that has been rejected in terms by the CCRC. That, however, we are constrained to say, is the law, subject to the Act being amended and we would respectfully suggest that an amendment in these terms, certainly to exclude the sort of case we have before us at the moment, is

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much to be commended. But as the law stands at the moment, Mr Smith is entitled to put forward any ground that he is advised can properly be pursued in relation to the case below".
Finally, unless the Minister wishes to rise to say, "I concede" no? in Re v Bomber [2002] EWCA Crim 2912, a case which attracted great public attention as a result of the terrible murders committed by Bamber, Lord Justice Kay said at paragraph 3 of the judgment:
"This case comes back before this court following a reference by the Criminal Case Review Commission ("the CCRC") under Section 9 of the Criminal Appeal Act 1995. As we shall explain the reference came about solely because of fresh scientific evidence. However, once the reference has been made, under the legislation as it presently stands, it is open to those advising the appellant to take any point that they wish. That is so whether the other point is related to the initial reference point or not and there is no requirement to obtain the leave of the court to pursue a particular ground as there would be on any other form of appeal against conviction".
Lord Justice Kay concluded—I shall not quote his conclusion in full although I refer the Minister to paragraph 522—in this way:
"We would not want to see an appellant shut out from trying to raise a point following a referral but we can see no justification for not having the filter present in such circumstances of requiring leave to raise additional matters to those referred by the CC.RC that is present in all other appeals brought by a convicted person. The Court of Appeal Criminal Division is pressed to deal sufficiently expeditiously with the caseload that it has and time unnecessarily wasted means that cases where the court subsequently determines that someone is wrongly detained in prison are delayed. We hope that thought will be given to making this relatively modest change to the legislation that would enable the court to make more efficient use of its time".
Those suggestions as to how the wording of the Act could be improved advanced by the Court of Appeal in its judgments are the basis for Amendment No. 121. As the Minister will recognise, it is still possible for an appellant to obtain the leave of the Court of Appeal to raise matters not considered by the CCRC or, indeed, matters rejected by it. That was the solution put forward by Lord Justice Kay, which I have just quoted.
I recognise that these are issues of great importance and that the existing wording was enacted by Parliament in 1995. But we, as legislators, would not be doing our job properly if we did not examine and review the effectiveness of the legislation we pass, especially where the courts make such clear recommendations pressing us to make amendments
I therefore tabled the amendment to give the Committee an opportunity to consider the recommendations made by the Court of Appeal. I also ask: what consideration have the Government given to the judgments in the cases that I have cited, which were given last year? I beg to move.
8.15 p.m.
Lord Thomas of Gresford: In the cases cited by the noble Lord, Lord Hunt, one hears—as one frequently hears from the Court of Appeal—the words, "expedition, efficiency" and so on. One does not necessarily hear the word "justice". From time to time points arise during an appeal or in its preparation which absolutely demand to be heard and there is
1100
nothing more frustrating than to hear the Court of Appeal say, "You did not get leave on that point". I oppose the amendment.
Lord Mayhew of Twysden: I suggest that the noble Lord's point would be covered by the provision in the amendment which allows the Court of Appeal to grant leave. That leave does not have to be given at the beginning or before the appeal is heard, it can perfectly well be given if a point arises in the course of the hearing, as is quite often done.
As my noble friend Lord Hunt said, the legislation which reached the statute book in 1995 was a great advance. However, it appears to be blemished by an undue liberality which permits any ground of appeal to be advanced in addition to those authorised by the tribunal itself.
The case for the provision virtually makes itself, so I shall not spoil it by continuing. I rose simply because that last point raised by the noble Lord on the Liberal Democratic Benches can be met by the well-established right of the Court of Appeal to grant leave even during the course of a hearing.
Baroness Scotland of Asthal: I thank the noble Lord, Lord Hunt, for raising the issue. I assure him that I am aware that the senior members of the judiciary in the Court of Appeal are concerned that cases referred by the Criminal Cases Review Commission, in which appellants bring forward additional grounds not given by the commission in its reference to the court, can delay the work of the court. I understand that that can occur particularly when appellants represent themselves. I am very happy that the noble Lord has given us such an exhaustive exposition of when this can occur.
However, we must put the matter within its contextual history when considering the amendment. Noble Lords will wish to take into account the background to the present law and to bear in mind that what the noble Lord suggests in fact returns us to a position which prevailed prior to the 1984 case of Regina v Chard and to the legislation current at that time, which was the 1907 legislation.
Section 19 of the Criminal Appeal Act 1907 empowered the Secretary of Sate to refer whole cases to the Court of Appeal. In the case of Caborn-Waterfield in 1956, the Court of Appeal (Criminal Division) held that the grounds for the court to consider were those made only in the reference of the Secretary of State. The wording of Section 19(a) of the 1907 Act was subsequently amended and in 1984 the House of Lords, in R v Chard, held that a reference to the Court of Appeal under Section 17(1)(a) of the 1968 Act was a reference of the case in its entirety, and that the court could not restrict its consideration to the ground referred by the Secretary of State. When the law was reviewed by the Royal Commission on Criminal Procedure, it recommended that although the power to refer cases to the Court of Appeal should be transferred to an independent authority, it should continue to be open to the appellant to raise before the Court of Appeal any matter of law or fact, or mixed

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law and fact, as he or she wished, regardless of whether it was included in the papers sent to the court by the authority.
We all know how important are the cases referred to the Court of Appeal under that rubric, and the importance of allowing a full, open and transparent hearing. The then government—I, too, applaud the government of the day—accepted the Royal Commission recommendations. Section 14(5) of the Criminal Appeal Act 1995 provides that in the case of CCRC reference, the appeal may be on any ground relating to the conviction, verdict, finding or sentence,
"whether or not the ground is related to any reason given by the Commission for making the reference".
That is right.
The amendment therefore runs counter to the clear intention of the 1995 Act and would reverse the House of Lords opinion in Chard and move in the direction of the earlier 1956 judgment in Caborn-Waterfield. That would be a retrograde step. It would change the nature of a CCRC reference to the Court of Appeal by limiting the present rights of the appellant in respect of such references. Although we recognise that the effect of the present law may in some cases cause practical difficulties in the operation of the Court of Appeal, the Government do not believe that it would be right to contemplate any change to the rights of appellants in CCRC reference cases.
Therefore, although we understand the sentiments expressed by the noble Lord, Lord Thomas of Gresford, on this occasion I can give the noble Lord, Lord Hunt, no comfort.
Lord Hunt of Wirral: I am grateful to the Minister for her response. I can well understand and sympathise with the words of the noble Lord, Lord Thomas of Gresford, I share the view of my noble and learned friend Lord Mayhew of Twysden that the answer to the noble Lord lies in seeking leave for those grounds to be added to the grounds of appeal.
I am grateful to the Minister for her applause for my noble friend Lady Blatch and for the government of which I was a member in proposing the legislation. Although the Minister explained that she believed that the amendment would have retrograde effect, I am still troubled when there is such clear demand from such senior judges for an amendment more or less in the terms of this one. However, I now want time to reflect on the points that the Minister made and to discuss them with those who initially wanted the subject aired and the amendment tabled. Reserving the right to return to the issue later, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hunt of Wirral moved Amendment No. 122:
Before Clause 81, insert the following new clause—
"Court of Appeal: Attorney General's power to refer unduly lenient sentences
1102
In section 35(3) of the Criminal Justice Act 1988 (c. 33) (scope of Part IV) after paragraph (b)(ii) there is inserted—
"; or
(iii) for an offence under section 9 of the Theft Act 1968 (c. 60) (burglary)"."
The noble Lord said: This amendment would put sentences imposed for the offences of burglary within the scope of the power given to the Attorney-General by the Criminal Justice Act 1988 to refer unduly lenient sentences to the Court of Appeal.
Under the 1988 Act, the Attorney-General may refer to the Court of Appeal sentences appearing to him to be unduly lenient that have been passed in respect of all offences triable only on indictment, such as manslaughter, rape and robbery, and sentences passed for certain "either way" offences specified by order of the Secretary of State. Offences that have been so specified include indecent assault, serious fraud and certain smuggling and drugs offences. Although aggravated burglary—where a weapon is used—is already within the scope of the power to refer, as it is an indictable-only offence, the basic offence of burglary is not.
Sentences for burglary have been much in the news recently, particularly over the past couple of months, since the guideline judgment of the Court of Appeal in R v McInerney in December last year. There has been a huge amount of public comment. Your Lordships' Committee is not the appropriate forum for me to advance detailed criticism of the sentencing guidelines recently laid down in that case by the noble and learned Lord the Lord Chief Justice, so I shall resist any temptation to do so. However, it is beyond doubt that the public, particularly the victims of burglary, are deeply concerned about the sentences now being passed on burglars. A system of criminal justice, in particular the sentences handed down to those convicted of serious crimes, must command the confidence of the public to be able to operate effectively.
The noble and learned Lord the Attorney-General said in your Lordships' House as recently as 21st January that public confidence in the system is one of the factors that he considers when he decides whether or not to exercise his discretion to refer unduly lenient sentences to the Court of Appeal. It is worth quoting him:
"There are also occasions where the Law Officers will think it appropriate to ask the Court of Appeal senior judges to consider whether any adjustment to the guidelines is appropriate. That would be for the guidance of all sentencing judges and to increase public confidence in the system".—[Official Report, 21/1/03; col. 552.]
I agree. Amendment No. 122 is important not only because it would give the Attorney-General the right to bring a reference to the Court of Appeal to ask for the guidelines given in R v McInerney to be revised, should the noble and learned Lord or any of his successors wish to do so, but it would also allow the Attorney-General to refer unduly lenient sentences imposed even under the present system.
Many Committee Members will have seen the reports of the confusion generated following the recent judgment of the Court of Appeal. That confusion

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exists among the judiciary as well as the public. The noble and learned Lord the Lord Chief Justice had to take the unusual—I think that it is almost unprecedented—step of issuing not one, but two, statements seeking to clarify the Court of Appeal's judgment. One was contained in a letter to judges and magistrates on 23rd December; the other was made in open court on 14th January. The Lord Chief Justice said in the latter statement that,
"the judgment is not a charter to offenders to commit burglary".
However, following the judgment, there have been a number of high-profile cases in which community sentences have been imposed on offenders who could previously have expected to receive a lengthy prison sentence. I believe that there is, therefore, still confusion about the application of the new guidelines, not only among the public but also on the part of some members of the judiciary. As the Minister will understand, the amendment would go some way towards remedying the situation. If trial judges have been confused by the coverage of the Court of Appeal's judgment and are passing sentences that are unduly lenient—even under the new guidelines—the Attorney-General will be able to take swift action to bring such cases before the Court of Appeal. As I said, it would also be open to the Attorney-General, should he consider it appropriate, to argue in such cases that the McInerney guidelines should be revised.
Noble Lords on the Benches opposite will, no doubt, remember their party's 1997 manifesto, in which the Government promised that the Attorney-General's power to appeal unduly lenient sentences would be extended. Noble Lords will remember the debates on the Crime (Sentences) Bill in 1997. On lath January, 1997, in another place, the then shadow Home Secretary, Jack Straw, moved an amendment to that Bill that would have extended the Attorney-General's power to appeal unduly lenient sentences to include any sentence passed by the Crown Court for any offence. I shall not take much time, as we do not have much this evening, but I refer the Minister to col. 80 of the Official Report for another place, where she will find the words of Jack Straw in that debate.
The Committee may recall that a similar amendment was moved in this House by the noble and learned Lord, Lord Williams of Mostyn, on 13th February, 1997. The noble and learned Lord said:
"One is dealing with the protection of the public. There are undoubtedly some sentences which are over-lenient and which fall into the category of offences triable either way".—[Official Report,13/2/97; col. 408.]
That is the background to our debate tonight. After May, 1997, the new Government did not implement the policy that they had advocated in March, 1997, despite the elevation to office of Mr Straw and the noble and learned Lord, Lord Williams of Mostyn. They made some further extension to the powers of the Attorney-General in the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2000. The amendment would achieve what the Government were committed to—at least, in the spring of 1997.
I agree that the amendment is focused on burglary. As the Committee is aware, there is especial public concern about the sentences that are being passed on burglars. In all the circumstances that I have outlined, the correction of unduly lenient sentences is vital, if we are to maintain public confidence in the system of criminal justice. I beg to move.
8.30 p.m.
Lord Thomas of Gresford: The noble Lord referred to the sentencing guidelines that were issued in December. They were not issued in a vacuum; they were issued after consultation between the Lord Chief Justice and the Sentencing Guidelines Council—or whatever its name is these days. We were also told in January that they were issued after consultation with the noble and learned Lord the Lord Chancellor and the Home Secretary.
The Committee will recall that, when the Lord Chief Justice was attacked in the tabloid press for what he had sensibly said about the effect of community sentences, the noble and learned Lord the Lord Chancellor stepped in behind him and supported what he had said, in accordance with the agreement that had, apparently, been reached. It was, therefore, surprising to find that the Home Secretary did not do the same. Having heard the furore over the comments made by the Lord Chief Justice and the noble and learned Lord the Lord Chancellor, the Home Secretary took a different course and broke what we had been told in January was the consensus between the three people to whom I referred.
If public confidence is to be restored in community sentencing, it is not to be restored by a measure such as this. Why should the Attorney-General take 70,000 or 80,000 burglary offences under his wing—it is by far the largest tranche of cases which go to the Crown Court—and start going to the Court of Appeal to complain about their leniency when the Court of Appeal in the shape of the Lord Chief Justice has already indicated that we should look at the guidelines for sentencing in simple burglary cases once again? I do not believe that any Attorney-General responsibly would do that. I see no point in the amendment and I oppose it.
Lord Donaldson of Lymington: The basic point is that there should be no area of criminal justice which the public feel is important but where some sentences are too lenient without there being some remedy. I do not criticise the Lord Chief Justice in any way—I am not in a position to do so. I am not interested in the furore which arose in relation to burglary. However, it might well be that the controversy could be stilled if the Attorney-General had the right to refer a sentence to the Court of Criminal Appeal while indicating that in general be thought community sentences were the right answer. One can easily pick a case in which it is absurd, but one can say, "This is a unique example and the general rule is different'.
Burglary affects enormous numbers of people. In so far as it was suggested by anyone that it was a trivial offence or did not worry householders, that is plainly

1105
contrary to all common sense and experience. However, it does not mean that the power of the Attorney-General is necessarily needed for too lenient sentences. That is the trigger, but it might be used in a different way in order to support a general run of guidelines which could be justified. Coming from that quarter, the public might be more reassured than they are at present.
Lord Mayhew of Twysden: I half feel that I ought to declare an interest as when in 1988 I was Attorney-General I introduced the measure against a certain amount of principled opposition. However, that opposition has subsequently disappeared. The way in which successive Attorneys have used the power—sparingly but with discrimination—has attracted approval.
A month or so ago, I went with the necessary care into the pronouncements of the Lord Chief Justice and I, too, found nothing to criticise in what he said. I did not think that his comments were a charter for burglars, or an indication to the judiciary that they should sentence every burglar to a community service order, save for the most heinous of the lot. I thought that ultimately it stood the test of realistic and practical examination.
However, I am afraid that the whole episode gave rise to some confusion. As my noble friend Lord Hunt said, there were one or two high profile cases in which the court indicated that normally it would have imposed a custodial sentence but by reason of recent pronouncements felt constrained to order a community service order.
I respectfully agree with what has been said by the noble and learned Lord, Lord Donaldson, that it by no means would follow from the amendment being carried that the norm should be tougher than that at present established—whatever the norm is. However, I believe that there is no serious case for opposing adding burglary to the raft of cases which come within the discretionary powers of the Attorney-General—for reasons given by the noble and learned Lord, Lord Donaldson, among others. I think that they would be exercised with the same degree of discrimination, as well as equally sparingly, as has been the rule over the past few years.
I hope very much that the Government will accept the amendment. It would restore confidence and to the extent that there may be residual confusion enable that to be corrected in a proper case.
Baroness Seccombe: Having listened to professionally qualified speakers, I wish to add a comment. In my capacity as a magistrate up to the year 2000, during training I was told that a magistrate's sentencing powers were not sufficient and that every case of burglary should go to the Crown Court because the sentence should start at nine months. When one has been trained in that way, to hear something quite to the contrary has added to the confusion, not only for magistrates but also for the public.
1106
People see burglary as an act of violence. We should not forget that some people, in particular the elderly, never get over it and cannot live alone again.
Baroness Scotland of Asthal: In response to the comments made by the noble Baroness, Lady Seccombe, can I say straightaway that we understand absolutely that people do not recover from certain kinds of burglaries. Burglary is a terrible offence. However, the difficulty arises because the crime covers a broad spectrum, from the person who puts their hand through a window to steal a bottle of milk—technically that is a burglary—to acts of real violence at the other end of the spectrum, involving direct assault on an individual in their own home. Both are crimes of burglary, although they are different in nature and we would differ in our response in terms of sentencing. I take the point on board.
The noble and learned Lord, Lord Mayhew, with his usual wisdom, was right to comment on the content of the advice given by the Lord Chief Justice in relation to the guidelines. If one takes the trouble to read—them it is obvious that the noble and learned Lord has done so—they are clear and perfectly sound. Indeed, the noble and learned Lord very ably made that point. It is regrettable that there has been so much ill-informed comment and misunderstanding about them.
However, we have to look at what is already in place. We believe that it would be unnecessary to accept the amendment. Perhaps I may take a few moments to explain why. The Home Secretary already has powers to extend by order under Section 35(4) of the Criminal Justice Act 1988 the range of triable either way offences where unduly lenient sentences can be referred by the Attorney-General to the Court of Appeal. Furthermore, we see no need to add burglary offences to the Attorney-General's powers. As has already been mentioned, while there has been much discussion about sentencing and burglars, we have no reason to believe that the courts are not imposing appropriate sentences or that the assertion that they are being unduly lenient is true.
Any appeals against sentences are more likely to be for burglaries that involve acts of violence or another serious offence. Those burglaries are likely to be triable only on indictment and therefore already can be referred to the Court of Appeal by the Attorney-General if he considers the sentence unduly lenient.
If we want to ensure that burglars are sentenced appropriately, then we should ensure that the courts are clear on what the Government expect to see. The sentencing guidelines will assist in that. But we must place our faith in sentencers to get sentencing right. After all, we know that they are the individuals who hear the full facts of a case and are therefore best placed to make the judgment. Perhaps noble Lords have shared my experience when sometimes reading a report of a court case about which I know a little. I can see no relation between what I know and the report which appears in the newspapers. We must be a little cautious because the case may not always be as it appears.

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Adding burglary to the Attorney-General's powers could send out an unwelcome message that we believe that the courts are getting it wrong. I have yet to see any evidence of this from anything that noble Lords have said or from elsewhere. Throughout the recent controversy over sentences for the offence of burglary following the Lord Chief Justice's guidelines of 19th December, in which community sentences were recommended as a starting point for first and second time non-serious burglary cases, the Government have stressed the seriousness of the offence.
There may be cases of first and, more exceptionally, second time minor burglaries that can be dealt with adequately by community sentences but, as a norm, as the noble Baroness, Lady Seccombe, made plain, burglary is the kind of offence that would attract a custodial sentence.
The Government welcome the Lord Chief Justice's clarification regarding the issue of repeat offenders in his statement of 14th January. In that statement, as your Lordships know, he stressed that the court had emphasised at the outset of the judgment that, in applying the guidance, it was necessary to have regard to the particular circumstances of the offence, its effect upon the victim and the record of the offender, not only in other cases of domestic burglary but generally.
The Attorney-General's powers to refer unduly lenient sentences are personal. Therefore, if we were to add burglary to the Attorney-General's powers, this would place an additional burden on already stretched services. In 2001, the most recent year for which figures are available, 7,942 offenders were found guilty of domestic burglary. While that is not in itself a reason not to amend the legislation, it is an important factor that the Government will wish to take into account.
In addition, were burglary to be added to the Attorney-General's powers of reference, we believe that there would be calls to add other offences, such as theft, which would make the burden on the Attorney-General unmanageable. He can properly deal with the more serious burglaries at the moment; the others remain outside his remit. I invite the noble Lord lo withdraw the amendment, given the assurance that these issues are covered already.
8.45 p.m.
Lord Hunt of Wirral: I am confused by the Minister's argument. On the one hand, she has stated very clearly that she believes the problem is already adequately covered; but, on the other hand, she has stated that the amendment would send an unwelcome message that the courts are getting it wrong. In trying to reconcile that conflict, I am guided by my noble and learned friend Lord Mayhew. He explained that when he introduced the legislation some years ago there was a considerable furore in the press along the lines that we were stating clearly that the courts were getting it wrong. There was an echo of that in the press comment at the time and that it was a way of rectifying injustice. I do not believe that that was the case then, nor do I believe that the amendment would send out that unwelcome message now.
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I am grateful to the noble Lord, Lord Thomas of Gresford, for setting out very clearly his position on the amendment, although he did give credence to some of the comments I made about the confusion that exists and the importance of public confidence. My noble friend Lady Seccombe gave some useful background and reminded us that burglary is an act of violence.
Both before and during the debate I read the statement made by the Lord Chief Justice in McInerney and Keating that the offence of burglary, even the basic standard offence, involved trauma to the victim. My noble friend Lady Seccombe is quite right to stress the importance of the offence in terms of the effect that it has on the victim. That is clearly the case.
We were greatly assisted by the noble and learned Lord, Lord Donaldson, who, once again, quite rightly reminded us of the need for public confidence in the whole system and to see this issue against the general run of guidelines.
I believe that the noble and learned Lord the Attorney-General would not misuse this power. It is a case of trusting him to exercise it—as my noble and learned friend Lord Mayhew of' Twysden put it—sparingly and with discrimination. That is the context in which I have proposed the amendment.
The Minister stated that burglary is a terrible offence. She rightly reminded us that it can have a wide range. There is no one who feels that the guidelines announced were sufficiently clear at the outset; nor indeed that they received the general public confidence. One has only to look at the words of David Blunkett, the Home Secretary, about the need for clarification—and the clarification was then welcomed. But surely it is better to have this power on the statute book, without any doubt about its application, and to trust the noble and learned Lord the Attorney-General to exercise the power sparingly and with discrimination. I regret that I did not find the Minister's explanation satisfactory. I should like to test the opinion of the Committee.
8.51 p.m.
On Question, Whether the said amendment (No. 122) shall be agreed to?
Their Lordships divided: Contents, 38; Not-Contents, 68.

Division No. 3

CONTENTS

Anelay of St Johns, B.

Lyell, L.

Attlee, E.

MacLaurin of Knebworth, L.

Blatch, B.

Mancroft, L.

Bridgeman, V.

Mar and Kellie, E.

Burnham, L.

Marlesford, L.

Carlisle of Bucklow, L.

Mayhew of Twysden, L.

Colwyn, L.

Montrose, D.

Noakes, B.

Cope of Berkeley, L. [Teller]

Park of Monmouth, B.

Dean of Harptree, L.

Roper, L.

Donaldson of Lymington, L.

Russell, E.

Geddes, L.

Seccombe, B. [Teller]

Glenarthur, L.

Selborne, E.

Goodhart, L.

Shutt of Greetland, L.

Greaves, L.

Slynn of Hadley, L.

Harris of Richmond, B.

Thomas of Gresford, L.

Hunt of Wirral, L.

Trefgarne, L.

Hylton, L.

Wilcox, B.

Kimball, L.

Williams of Crosby, B.

NOT-CONTENTS

Ahmed, L.

Grocott, L. [Teller]

Andrews, B.

Hardy of Wath, L.

Bach, L.

Harris of Haringey, L.

Bassam of Brighton, L.

Howie of Troon, L.

Borrie, L.

Hoyle, L.

Burlison, L.

Judd, L.

Campbell-Savours, L.

Lofthouse of Pontefract, L.

Clark of Windermere, L.

Macdonald of Tradeston, L.

Crawley, B.

McIntosh of Haringey, L. [Teller]

Davies of Coity, L.

Pitkeathley, B.

Dixon, L.

Ramsay of Cartvale, B.

Farrington of Ribbleton, B.

Rea, L.

Faulkner of Worcester, L.

Sainsbury of Turville, L.

Gale, B.

Scotland of Asthal, B.

Gilbert, L.

Stone of Blackheath, L.

Golding, B.

Thornton, B.

Goldsmith, L.

Whitaker, B.

Gould of Potternewton, B.

Winston, L.

Moved accordingly, and, on Question, Motion agreed to.

Resolved in the negative, and amendment disagreed to accordingly.
9.1 p.m.
Clause 81 [Alteration of place fixed for Crown Court trial]:
Lord Hunt of Wirral moved Amendment No. 123:
Page 37, line 16, leave out "by a judge of the High Court"
The noble Lord said: Clause 81 states that an application under Section 76(3) of the 1981 Act for a variation of the place fixed for Crown Court trial is no longer required to be heard in open court by a judge of the High Court. By asking for the deletion of the words,
"by a judge of the High Court",
I am seeking clarification.
It is undoubtedly a matter for discussion as to whether a judge of the High Court might want to be much more impartial about whether the case should be transferred, whereas a circuit judge might want to keep hold of the business. It would be interesting to know
1110
the background to the precise wording which has been put forward by the Government and I am seeking clarification. I beg to move.
Lord Carlisle of Bucklow: I ask in total ignorance, I am afraid, but is the present position that the application to transfer a case has to be heard by a High Court judge? I thought it could be heard by a judge at the Old Bailey or a recorder. I had not realised that it required a High Court judge. I thought the power was wider. There is no need for a High Court judge if it is obviously for the convenience of witnesses that matters should be transferred. I am surprised to hear it is necessary at the moment.
Lord Bassam of Brighton: I think what the noble Lord, Lord Carlisle, described is currently the situation. I want to go on to clarify the point the noble Lord, Lord Hunt of Wirral, raised and persuade him to withdraw his amendment.
Clause 81 amends some of the provisions of Section 76 of the Supreme Court Act 1981. That measure deals with alterations to the place of trial in the Crown Court. It currently requires that any application by the prosecution or defence to change the place of trial must be dealt with in open court by a judge of the High Court. That is often difficult because not all Crown Court centres are visited by High Court judges, and many that are do not always have such a judge in residence. So when considering this issue, the Government not only decided that it is no longer necessary for High Court judges to deal with these issues, but recognised that the applications can often be dealt with by a Crown Court judge without the need for a hearing in open court.
It had been our intention to amend subsection (3) of Section 76 in the manner currently set out and to repeal subsection (4), which contains the requirement for a hearing in open court. Unfortunately, through an oversight, that repeal was not made in the Bill as currently before the Committee. An amendment to Schedule 7, which deals with repeals, will therefore be tabled at Report stage by the Government to give effect to that intention. I trust that the Committee will recognise the need for such an amendment when the time comes to debate it. If that amendment is accepted, the effect will be that applications for alteration to the place of trial can be dealt with by any judge of the Crown Court and, where appropriate, without the need for a hearing in open court.
We are grateful to the noble Lord, Lord Hunt of Wirral, for pointing out that omission, which we intend to address. I therefore hope that he will feel able to withdraw the amendment.
Lord Carlisle of Bucklow: I should like to return to the point. I have to my knowledge been involved in an application which, although heard by a High Court judge, was heard in chambers. The case involved a major drugs case which was moved from Manchester, I think, to Newcastle. Although I suppose that it might

1111
have been put right by a formal application in court thereafter, the whole of the argument took place in chambers without the parties being present.
Lord Bassam of Brighton: It is hard for me to comment on the particular case, but I am grateful to the noble Lord, Lord Carlisle, for explaining some of the circumstances in which it occurred. We are addressing the issue in this way to obviate the need for such a device. I hope that it will provide a practical solution to the problem that he has identified.
Lord Donaldson of Lymington: I should like to raise a point of construction. A double condition is being got rid of: first, that the application has to be heard in open court and secondly that it be heard by a judge of' the High Court. If one just leaves it at that, subject to the amendments which the Minister said he will make—which I frankly do not understand; that is my fault, not his—one is left with the position that the High Court judge is no longer necessary or the open court is no longer necessary. However, it is certainly left open that one or the other is necessary. It seems a patent ambiguity which ought to be cleared up.
Lord Bassam of Brighton: I am grateful to the noble and learned Lord for his intervention. We will of course take careful cognisance of his remarks in framing our amendment. We think that we have a solution to the specific problem.
Lord Borrie: I am trying to help the Minister. Does he mean that the word "by" should be preceded by -or", so that it is no longer necessary to be heard either in open court or by a judge of the High Court?
Lord Bassam of Brighton: I think that that is the case.
Lord Hunt of Wirral: We are all deeply indebted to the noble Lord, Lord Borrie, for having come up with a solution which needs to be considered. However, I believe that the noble and learned Lord, Lord Donaldson, and my noble friend Lord Carlisle have highlighted a problem for the Government. I am not quite sure that they are there yet, but no doubt this will run and run. If the Minister wishes to give further clarification, I am perfectly willing to give him the opportunity to do so.
Lord Bassam of Brighton: I have listened to the advice given in the Committee and to the advice of my noble friend Lady Scotland. I shall seek to bring back a wording which takes on board the points that have been raised so that we can reflect accurately what we need to achieve. Not being a technician in these matters, I am content to leave the matter there.
Lord Hunt of Wirral: In those circumstances I shall await developments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 81 agreed to.
Clause 82 agreed to.
Clause 83 [Prosecution appeals from Court of Appeal]:
Lord Goodhart moved Amendment No. 124:
Page 38, line 42, leave out "by the defendant,"
The noble Lord said: In moving Amendment No. 124, I wish to speak also to Amendments Nos. 125 to 129 inclusive as the group raises a single point.
At present, under the Criminal Appeal Act 1968, after the Court of Appeal has given a decision, the unsuccessful party has 14 days in which to apply to the Court of Appeal for leave to take the appeal to the House of Lords. If that application is turned down, the unsuccessful party has a further 14 days in which to apply to your Lordships' House for leave to appeal.
If the defendant is the unsuccessful party, he can apply for leave to appeal out of time. But, if the prosecutor is the unsuccessful party in the Court of Appeal, there is no possibility of an ex tension of time. So if the prosecutor fails to appeal within the due time, there is no possibility of an appeal.
Clause 83 maintains the present position so far as an unsuccessful defendant is concerned; that is, the defendant has 14 days to apply to the Court of Appeal for leave to appeal to your Lordships'. House and, if that application is turned down, a further 14 days to apply to your Lordships' House itself, and continues to have a right to apply for leave to appeal out of time. However, Clause 83 extends to 28 days the time allowed to a prosecutor who has been unsuccessful before the Court of Appeal to appeal to your Lordships' House.
The Joint Committee on Human Rights in its first report of this Session asked the Lord Chancellor why he proposed to introduce this inequality into the system of appeals and why he thought that it was compatible with Article 6 of the European Convention on Human Rights. The Government responded that the defendant can apply for leave to appeal out of time but that the prosecutor cannot. The Government considered giving a prosecutor a right to apply for leave to appeal out of time but decided that it would be unfair to the defendant to allow the prosecution to do so on the ground that in that case the defendant would always be, at least in theory, potentially at risk of the prosecutor seeking to reopen the case. The Government therefore considered that the 28-day period for the prosecution being longer than that allowed to the defendant was balanced by the defendant's right to apply for leave out of time.
The Joint Committee on Human Rights was not satisfied with that answer and suggested in a subsequent report either that the defence should be allowed 28 days as of right or that the prosecutor should continue to have 14 days, with power to apply for leave to appeal out of time during a further 14 days, but not thereafter.
The position taken by the Joint Committee on Human Rights seems in the circumstances entirely fair and proper. Therefore, I would like to ask whether the Government are prepared to accept its further proposals. If not, why not? I beg to move.
9.15 p.m.
Lord Bassam of Brighton: Sir Robin Auld, in his review of the criminal courts, recognised the disparity addressed by the noble Lord, Lord Goodhart. Sir Robin recommended that Section 34(2) of the Criminal Appeal Act be amended to empower the House of Lords and the Court of Appeal to extend the time within which the prosecution may apply for leave to appeal, as in the case of a defendant.
The conclusion reached was that an open-ended provision for the prosecution to extend the time to seek leave was undesirable, because it would leave the defendant with the prospect of having his conviction reinstated at any time in future. The issue has been discussed at considerable length with both the senior judiciary and the Registrar of Criminal Appeals. The state of affairs is not ideal. A defendant who has been successful in the Court of Appeal should be entitled to know for certain, at the end of a specified period, whether the decision in his favour is to be challenged or not.
Therefore, rather than create an open-ended provision for extension of time, the policy is simply to extend the time limit within which the prosecution may apply for leave to appeal to the House of Lords from 14 to 28 days. We are not taking anything away from the defence, as it retains the right to apply to the House of Lords or the Court of Appeal at any time to extend the time in which to make an application beyond the 14-day limit. The Bill as drafted provides for that.
We thank the noble Lord, Lord Goodhart, for his very considered view. After consultation, we intend to amend the wording of Clause 83 to address his concerns and those of the Joint Committee on Human Rights whose fourth report was published last week. As a consequence I rather hope that he will feel able to withdraw his amendment so that we can table an amendment that will satisfy the concern that he has raised.
Lord Hunt of Wirral: I have tabled a very similar amendment, which also seeks to overcome the disparity. It may be for the convenience of the House if I indicate that I do not intend to move it, in view of the words of the Minister.
Lord Goodhart: I am most grateful but, before I beg leave to withdraw the amendment, I would like to ask whether the Government have decided how they will amend Clause 83. Which option proposed by the Joint Committee will they take up, or will they propose something entirely different?
Lord Bassam of Brighton: We intend to consult some more on the matter. I am happy to involve the noble Lord and noble Lords from the Opposition in the product of that consultation. I hope that that satisfies him. We want to deal with the concerns raised and ensure that we have something that works precisely to do the job and protect the further rights of defendants.
Lord Goodhart: In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 125 to 130 not moved.]
Clause 83 agreed to.
Clauses 84 and 85 agreed to.
Clause 86 [Defence Council appeals from Courts-Martial Appeal Court]:
[Amendment No. 131 not moved.]
Clause 86 agreed to.
Clause 87 [Fees]:
Lord Hunt of Wirral moved Amendment No. 132:
Page 41, line 26, at end insert—
"( ) In prescribing fees payable under subsection (1), the Lord Chancellor shall have regard to the need to facilitate access to justice."
The noble Lord said: We come to one of the most important parts of the Bill, which received a great deal of attention at Second Reading; namely, Clause 87, which concerns fees. We were treated to an outstanding speech from the noble and learned Lord the Lord Chief Justice, who devoted most of his Second Reading speech to dealing with Clause 87. He rightly reminded us that this clause changes the role of the senior judiciary in relation to the setting of court fees.
I have had the benefit of looking at the Civil Justice Council's paper on full costs recovery produced by its fees sub-committee. It makes this very clear statement:
"The Civil Justice Council has given detailed consideration to the Government's policy of raising almost the full cost of the civil court costs through fees levied on users, and concluded that this policy is not consistent with its aim of ensuring access to justice".
The fees sub-committee continued in these terms:
"The policy is both wrong in principle and unfair in practice and has resulted in significant under funding of the courts which is in serious danger of undermining the civil justice reforms. The Council calls on the Government to abandon this objective".
There could not be a clearer statement. Therefore, I hope that noble Lords will understand the importance of the amendment, which seeks to insert at the end of line 26, page 41, the words:
"In prescribing fees payable under subsection (1), the Lord Chancellor shall have regard to the need to facilitate access to justice".
In an earlier debate, I warned the Minister that I would seek to quote not only the noble and learned Lord the Lord Chief Justice but also the noble and learned Lord the Master of the Rolls. I pointed out that I am not aware of the precise nature of the various precedents, but I believe that it was unusual for the Master of the Rolls, the noble and learned Lord, Lord

1115
Phillips of Worth Matravers, to agree to speak to Jeremy Paxman on "Newsnight" about the civil justice system. In that interview, when asked by Mr Paxman:
"What is your assessment of the shape [the civil justice system] is in'?",
the noble and learned Lord the Master of the Rolls replied, saying two different things. He said:
"It is creaking at the seams because of lack of resources. The Treasury has introduced, without any parliamentary debate or discussion, a complete change. Yes, it is the job of the state to provide a health service and to provide education. It is not the job of the state to provide a civil justice system. The litigant has to pay"
so say the Government—
"in court fees for the cost of maintaining these buildings and for the judges".
The noble and learned Lord the Master of the Rolls continued:
"I don't know any other country where this full cost recovery is imposed. It has dire consequences for an effective civil justice system. The other limb of this is that we are desperately needing to reform our structure. It is part of the same picture. Today, people don't do everything on paper. If they do it's inefficient and takes a long time. We have to modernise and the court service had prepared a magnificent modernisation programme. All it needed was the funding, and in this spending round we haven't had it. If we don't modernise, the system is going to fall apart".
In line with the tenor of the interview, the BBC headed the transcript with the words, "Courts Crumbling". I believe that it is pretty unusual for the noble and learned Lord the Master of the Rolls to be so forthright. Therefore, on what is the first parliamentary occasion to express views on the policy imposed by Her Majesty's Treasury, I believe it is right that we should reflect for a moment and question whether this is the right way forward.
The noble and learned Lord the Lord Chief Justice reminded us that historically the cost of court accommodation and the salaries and pensions of judges was borne by the state. It was always accepted that the rest of the running costs would be borne by litigants in the form of fees. We all know the history because the noble and learned Lord the Lord Chief Justice set out the background to this present debate.
I hope that I do not have to remind noble Lords of the words used by the noble and learned Lord the Lord Chief Justice when he said that the present accommodation of the commercial court is a disgrace. That was his word, "disgrace". He stated:
"Throughout England and Wales, courts are deprived of the technology which has been repeatedly promised and which should be at the heart of the civil justice reforms".
Noble Lords will remember that we are talking about the architect of the civil justice reforms. He went on to say:
"Those courts are struggling to provide an adequate service, relying on the loyalty of the judiciary and the staff …It is forgotten that at stake can be a member of the public's home, a widow's damages or a citizen's human rights".
The noble and learned Lord the Lord Chief Justice concluded:
"That position is not tolerable".—[Official Report; 9/12/02; col. 28.]
Looking back to a rather special day, I asked a very special Question in this House. On 26th April 1999 I asked the noble and learned Lord the Lord Chancellor whether he considered that all necessary systems and resources were in place for the introduction that day of the civil justice reforms of the noble and learned Lord, Lord Woolf. That was on the day they were introduced; namely, 26th April 1999. In seeking to assure us that all the necessary systems were in place, the noble and learned Lord the Lord Chancellor admitted that the IT system was not quite ready. He stated:
"I expect a full administrative IT system to be in place during 2000".—[Official Report, 26/4/99; col. 5.]
That was the following year. I regret to inform noble Lords that we are still waiting for that full administrative IT system. How right are the noble and learned Lord the Lord Chief Justice and indeed the Master of the Rolls in demonstrating by what in the circumstances is moderate language how concerned they are that the whole purpose of the access to justice reforms will be lost.
On the previous Committee day I reminded the Minister of the words of the noble Baroness, Lady Scotland of Asthal, in reply to the Second Reading debate. Referring to the Lord Chief Justice, she stated:
"The noble and learned Lord, with his usual precision, has highlighted a number of issues that I am sure will excite our interest for some time".
She continued with that memorable phrase that I have quoted to her before:
"I dare not go further".—[Official Report, 9/12/02; col. 83.]
I gave the Minister the opportunity to go further on a previous occasion and she said that she would resist the temptation.
In the light of Amendment No. 132, I hope that the Minister will rise to reassure us that the access to justice reforms will go ahead with the resources that they so desperately need, in particular so that there will be continued facilitation of access to justice. That is so important and is right at the heart of the widely welcomed changes that have taken place. Indeed, some would say that provided those changes are implemented they will be the envy of the rest of the world. If we get civil justice properly resourced, we need not look back in the way that we have been encouraged to by a number of very senior members of the judiciary and the Civil Justice Council, because we will be able to look forward with confidence and plan for the future. I beg to move.
9.30 p.m
Lord Goodhart: I would find it difficult to agree more with what the noble Lord, Lord Hunt of Wirral, said. The imposition of heavy court fees has acted as a serious deterrent to access to justice. That is totally wrong. It is the duty of the state to provide a system of justice. While it has long been accepted that litigants should pay something towards the cost of maintaining the courts, it has never, until recently, been proposed that they should pay the whole of the costs.

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In the commercial court, in which most of the litigation is by wealthy corporations, there is a strong case for covering the full cost of the litigation through fees. That certainly does not apply to the ordinary civil courts in which actions relating to personal injuries, employment rights, housing and so on are contested. Therefore, I entirely support the noble Lord, Lord Hunt of Wirral.
I see a certain step forward. It may be useful if I speak to my Amendment No. 146, which is far down the list. It relates to the orders made by the Lord Chancellor under Clause 97 regarding prescribing the fees. I remember two or three years ago an order was made by the Lord Chancellor which very substantially increased the fees. I was deeply concerned about it at the time. I think that it has done a great deal of damage.
The order appeared in the minute in the list of statutory instruments to receive the negative resolution procedure. I was therefore proposing to pray against it. I was then told that that was a mistake. It should not have appeared in the negative resolution list because it was an order that simply had to be laid before Parliament. There was no chance of any prayer against it. That was deeply unfair because a very important order was subject to no parliamentary process at all.
Clause 97(4)(c) proposes that a statutory instrument containing,
"an order under section 87…is to be laid before Parliament after being made".
In other words, it is not subject to any form of parliamentary control.
However, I also understand that the Committee on Delegated Powers and Regulatory Reform has objected to there being no parliamentary control and therefore recommended that an order prescribing fees under Clause 87 should be subject to the negative resolution procedure and could be prayed against. I also understand that the Government accepted that proposal in their response, which advances the situation somewhat, in that changes in fee orders will now be subjected to a degree of parliamentary control and, if they are thought to be excessive, can be prayed against.
So, although I entirely agree with everything that the noble Lord, Lord Hunt, said, I also accept that some progress—not necessarily adequate—has been made towards solving the problem.
Lord Borrie: In the course of his speech, the noble Lord, Lord Hunt of Wirral, made some powerful and well-argued points. When he cited the Lord Chief Justice and the Master of the Rolls at some length about their concern for adequate resources for civil litigation, I could not disagree with him. How could I disagree with the words of such eminent people as the heads of civil justice in this country? However, I am not entirely sure of the direct connection between that and what we are discussing in Clause 87, which is concerned with the recovery of fees from litigants.
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I noticed that the noble Lord, Lord Goodhart, distinguished between commercial and other litigation. He rightly said that commercial litigation is often engaged in by wealthy corporations, which may well be able appropriately to afford the principle of full recovery of costs. Why should we disagree with him? Many may say—I hope that this does not sound anti-foreign—that because our justice system is so highly regarded abroad by foreign corporations, they come to this country and may in important litigation spend weeks or months using the access to justice that we provide paying only a proportion of the costs incurred.
As for other civil litigation, I well recognise the phrase, "access to justice", which the noble Lord, Lord Hunt, wants to incorporate by his amendment. However, the Lord Chief Justice, the noble and learned Lord, Lord Woolf, would be the first to say—he has said it many times—that access to justice does not necessarily mean the right to what I may call the Rolls Royce type of justice available in the High Court. However, he has many times referred to the importance of the access for the ordinary people of this country to the small claims system in the county courts, to the ombudsman schemes and to all the other alternative dispute resolution procedures. They are so important in practice for ordinary members of the public.
Let us realise that the Lord Chancellor's powers are hedged about throughout by the need to consult the heads of the judiciary, who are listed in the clause. So although the passion and accuracy of the comments of the noble Lord, Lord Hunt, about the need for adequate resources was important, we must distinguish between that and the question of fees provisions in the clause.
Lord Donaldson of Lymington: I welcome the fact that the heads of division no longer have to concur in fees orders but are only consulted. I frankly admit that I left my job more than 10 years ago. But, even then, I was embarrassed, and I dare say that my colleagues shared the feeling, at cavilling at proposals to increase fees on perfectly respectable grounds, when, after all, the provision of money and resources was the responsibility of the Government, not the judiciary. To that extent, I welcome the change that the Bill would make.
I echo the remarks of the noble Lord, Lord Goodhart, about splitting the commercial court from the rest of the civil justice system. I was a presiding judge in the commercial court for some years. It is fundamentally different from any other court. I believe that over 50 per cent of all cases tried in the commercial court involve at least one foreign party. There may be a case for the commercial court being under-remunerated by its users on the grounds that it is an export industry that we ought to subsidise—it is arguable. But, apart from that, I see no reason why the sort of cases dealt with in the commercial court should not command fees amounting to a full recovery at least. I would not mind if they went beyond that, and I do not think that it would worry the litigants.

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I had an interesting experience during the period when Lord Elwyn-Jones was the Lord Chancellor—forgive me for raising the matter, but it is illustrative. There was a shortage of court space for the commercial court, so I floated the idea that litigants might provide their own court at their own expense, and that the judge should go there and deal with the case accordingly. I got as far as getting agreement to those arrangements in one case. Solicitors hired the Reform Club—do not know whether that was a good idea—for which the outlay was some £5,000, which was quite a lot of money in those days. When Lord Elwyn-Jones heard about the arrangement, he was appalled. He said that the arrangements involved private enterprise in a governmental service. He went further, ordering the solicitors to repay the Reform Club the £5,000 and to let the matter take its own course in the ordinary courts. I think that that was wholly absurd. But, regardless of whether it was absurd, it is interesting that the litigants were perfectly happy with the arrangements. They had the alternative option of going to arbitration, which would have cost them an arm and a leg more.
Let us by all means treat that as a special case. But it is overlooked that, in every society that I have ever heard of, justice came before education, health and almost anything else. I do not want to overstate the case because although it is factually true and the quality of justice may have been a bit dodgy, which it is in more punitive societies, the rationale was different, happily, from that which obtains at present. It was that, if the monarch, government or whoever did not provide a system for resolving disputes, the citizenry would take the matter into their own hands. That did not bother the monarchs in the least. What bothered them was that that would lead to the mutilation of possible soldiers for their forces. I accept that that rationale does not exist at present. It is a pity that it does not. from the point of view of providing better access to justice. But the provision of justice is still fundamental, even if the rationale has changed. I do not think that the Government recognise that.
The last point that I want to make is peripheral but, I think, important. The noble Baroness has been taunted for failing to respond to arguments that are plainly right. I agree: she does not respond to arguments that are plainly right. When she says, "I dare not do so", she is reflecting the fact that Ministers, particularly junior Ministers—I do not say that pejoratively, just to point out that they are not the Secretary of State or equivalent—are hedged in by the necessity to appear as advocates. rather than being able to express their own view. We ought to accept that the Minister is here as an advocate. There is no reason why she should not be told that the arguments that she puts forward as an advocate are nonsense; the only thing that we ought not to do is suggest that she does not realise that they are nonsense.
9.45 p.m.
Lord Carlisle of Bucklow: The only point that I wanted to make follows from what the noble and learned Lord, Lord Donaldson of Lymington, has just said in his powerful speech. The noble Lord, Lord Borrie, limited the scope of his remarks to the commercial court. What the noble and learned Lord, Lord Donaldson of Lymington, said applied a great deal to the commercial court and the fact that full fees should be paid in that court to cover costs.
As I understand it—I will be corrected, if I am wrong—the amendment goes wider than the commercial court. The amendment says:
"In prescribing fees payable under subsection (1), the Lord Chancellor shall have regard to the need to facilitate access to justice".
Subsection (1) deals not only with the supreme court but with the county court and the magistrates' court. I would have thought that the argument made by my noble friend was unanswerable, certainly so far as concerns the county court. If, as the noble and learned Lord, Lord Donaldson of Lymington, said, we should preserve the right of access to justice in this country, the Lord Chancellor should take account, when deciding fees at that level, of the right of access. He should not impose fees at a level that refuses justice to people who might otherwise go to the county court.
Baroness Scotland of Asthal: I have found the debate stimulating and worthwhile. In particular, I thank the noble and learned Lord, Lord Donaldson of Lymington, for his understanding. The noble Lord, Lord Hunt of Wirral, made a powerful case for the importance of further resources. He also made a powerful case as to why we should listen to the quotations from the senior judiciary. I say to the noble Lord, in what are now famous terms, "You could say that. I couldn't possibly comment".
I say respectfully that, although we have ranged widely, we should come back to the amendment. The noble Lord, Lord Goodhart, and my noble friend Lord Borrie were, in their separate ways, right. The noble Lord, Lord Goodhart, made a point about negative resolution. I am pleased to be able to say at this early stage that his forecast of the Government's position on that matter is right. We will come to it later in the Bill, and we will, in principle, accept the point and table amendments in due course.
The amendment is not necessary. I say respectfully that the words spoken by my noble friend Lord Borrie were well said. He spoke about the distinction between needing full cost recovery in certain circumstances, where it is merited, and the need to bear in mind the needs of the litigant in other cases. The overarching concern of the Lord Chancellor is to ensure access to justice. There is a system of exemptions, remissions

1121
and guarantees for less well-off litigants relating to the payment of civil court fees.
When the noble and learned Lord the Lord Chancellor came to office, automatic exemption was confined in civil, non-family proceedings to recipients of income support. Indeed, the previous administration had attempted to remove even that in supreme court proceedings. In November 1997, the noble and learned Lord the Lord Chancellor extended automatic exemption to include income-based jobseekers allowance, family credit and disability working allowance. In September 1999, he updated this to include recipients of working families' tax credit and disabled person's tax credit at the same level. In March 2000, he made provision for refunds in particular limited circumstances where a litigant might be under pressure to pay a fee because time was running out to make a claim and where the court was currently unable to take account of those fees.
Lord Goodhart: I am grateful to the Minister for giving way. Does she agree that making receipt of benefits a passport to the waiver of fees is one of the problems we face in this country? Those who are just above the benefit limits are faced with the full burden of the fees, although they too are not, in practice, able to afford them.
Baroness Scotland of Asthal: It will very much depend on the nature of the litigation in which those individuals are involved. In some fields, legal aid will be available; in others, there is a small claims court where the fees are limited and small. In respect of others, there is arbitration; we have made legal aid available, for instance, for mediation. The levels in relation to legal help have risen. So we have tried to look at the issue in the round to ensure that the money we expend on provision for legal aid is targeted on the social exclusion of those who are most in need and that those in the bracket just above have a better opportunity to obtain legal help.
Members of the Committee will also know that the Government are investing a great deal of time and effort in encouraging alternative dispute resolution. We recognise from the research that court-based solutions are often the least successful in that they provide not the highest level of satisfaction because in our adversarial system one party must win. The corollary is that the other party must lose. There will always be 50 per cent who, for one reason or another, are likely not to be satisfied with the result.
All of that must be seen in the round. It is clear that we need significant sums to be made available to enable the courts to be modernised in a way that is proper. But full cost recovery has been with us for a
1122
long time. I know it is nice to think it is a recent invention, but, as with so many issues, when one looks back one sees that there it was in days of yore. It has been with us in one way or another since the County Court Act 1888. Fees have always been charged to litigants in the civil courts. Originally, they were paid to the judges of the court, who retained them personally—
Lord Donaldson of Lymington: Will the Minister consider whether a true view is that it has always been an aspiration? Certainly, we were nowhere within miles of it when I was concerned.
Baroness Scotland of Asthal: We could probably enter into a long historical debate as to when there was full-cost recovery. When judges pocketed the money themselves and were paid directly, one would say that that was full-cost recovery, because if they did not get the money, they did not eat—
Lord Donaldson of Lymington: The Master of the Rolls was one of the greatest beneficiaries.
Baroness Scotland of Asthal: And I dare say that some would like those days to roll again, but they have not. We could go back in history, but what do we know? We know that full-cost recovery is appropriate particularly in relation to the example given by the noble Lord, Lord Carlisle, and others in relation to the commercial courts. The noble and learned Lord, Lord Donaldson, rightly said that, because our courts are used so much by international commercial litigants, we provide an exemplary service—some would say the best in the world—in relation to dispute resolution heard judicially in our courts. Therefore, we must use those opportunities to try to maximise the income brought into the system so that we can have state of the art courts.
Of course I understand the anxieties that have been expressed about full cost recovery and how from time to time it may impact negatively on various sections, but I say only that if one looks at what the noble and learned Lord the Lord Chancellor has done in relation to fees, it will be clear that he has been assiduous in trying to ensure that the disadvantaged are cushioned in relation to fees and that there is a discretion in terms of how they operate.
Lord Thomas of Gresford: Can the Minister give me the bottom line with respect to fees? Never mind the history; is the Lord Chancellor now going to set a level of fees which will balance the books?
Baroness Scotland of Asthal: The noble and learned Lord will set fees from time to time based on the circumstances that then prevail. It would be wonderful if I could give noble Lords a hard and fast rule, but I daresay what would happen then would be that a noble Lord would ask, "What if X changes, and X plus Y equals Z and not C?".
If I am honest and straightforward, as I have always tended to be with noble Lords—I know no other way—I have to tell noble Lords how I see the matter in fact and not how we would like it to be.
Lord Hunt of Wirral: I am grateful to the Minister. I believe that the noble Lord, Lord Thomas of Gresford, along with many other noble Lords who have participated in the debate, has put a fundamental question. As noble Lords understand the position, the Government have recently announced, and Her Majesty's Treasury has made clear, that the policy in levying fees will now be for full cost recovery in all actions. We can forget for a moment the commercial court. Is that or is it not still the Government's policy?
Baroness Scotland of Asthal: It is full cost recovery, but as I have tried to tell noble Lords, the noble and learned Lord the Lord Chancellor has taken into account the categories of persons against whom court fees should not be recovered in full. Furthermore, I have sought to go through the various categories which have been included. Those categories will be extended from time to time. As benefits and other levels change, I daresay that that will be reflected in the levels of fees and remissions of fees that will be granted.
However, if the noble Lord was to ask whether there will be full cost recovery in each case, then of course that cannot be right. That is because litigants who are financially disadvantaged or who belong to a group that is particularly vulnerable will be cushioned in order to enable them to bring their cases in accordance with what is proper.
Lord Thomas of Gresford: Is the Minister saying that the paying litigants will subsidise those who cannot pay; that is, all the exceptions to which the noble Baroness has referred?
Baroness Scotland of Asthal: Fees will be levied so as to enable full cost recovery to be rendered wherever possible. I cannot give the noble Lord a definitive answer to the question of what proportion, if any, of cushioning may have to be provided from time to time by the Lord Chancellor from the budget.
While I cannot give the noble Lord an answer today, I shall certainly be happy to write to him if I can provide a fuller response. However, I have no better answer to give from the Dispatch Box.
Lord Hunt of Wirral: I commend the noble Baroness for being absolutely clear with the Committee; namely, that full cost recovery is now the policy of the Government. It is the policy that the Civil Justice Council has said should be abandoned. The council
1124
has also asked a question that I shall put to the Minister: can she name another major English-speaking common law jurisdiction or any other European jurisdiction where full cost recovery as she has proposed for the United Kingdom is carried out as a matter of practice?
Baroness Scotland of Asthal: I am not able to name other jurisdictions, but I shall certainly write to the noble Lord. I have tried to make it clear that I do not accept the premise. I have also sought to make it clear that the specific groups to be cushioned will remain cushioned. No doubt noble Lords will say that currently we do not have a policy in relation to full cost recovery because we have made exceptions for those groups of people whom we have identified as being vulnerable and thus in need of assistance and cushioning.
10 p.m.
Lord Hunt of Wirral: I am grateful to the Committee for obtaining from the Minister clarification of the Government's policy. Although the noble Baroness may seek comfort by putting the matter into a historical context, noble Lords are now aware that there is to be a new policy of full cost recovery. That is why there has been such an outcry from senior members of the judiciary; that is why we heard from the Lord Chief Justice on Second Reading; why we heard from the Master of the Rolls on "Newsnight"; and why we have heard from the Civil Justice Council. We are not talking about the commercial court—we could engage in a debate about fees in the commercial court—but about civil court fees generally.
The Minister will have thought long and hard about these matters and the noble and learned Lord, Lord Donaldson, paid tribute to her for that. If I ever wanted a plea in mitigation I could have gone to no one better than the noble and learned Lord. He gave a strong plea in mitigation on behalf of the Minister, who has to try to sell this policy.
Baroness Scotland of Asthal: The noble Lord keeps repeating that I said "full cost recovery". However, I have made it plain that the LCD does not recover full costs for civil fees. There are exemptions and omission arrangements for those who are not legally aided and who would suffer hardship in paying fees. The subsidies for family proceedings in, for example, adoption and domestic violence cases, together with these provisions, act to protect access to justice. So, although the noble Lord says "full cost recovery in relation to all", this is not a new policy. Nor is it correct to say that we recover full costs of civil fees. We do not do so because of those exceptions.
Lord Carlisle of Bucklow: This is rather like having an old age person's pass. If you get an OAP's pass you pay less fees irrespective of your financial position. Surely we want the Government to accept that fees should be set at an affordable level for those who do not have the advantage of total avoidance through having an OAP's pass.
Baroness Scotland of Asthal: But it is not targeted by virtue of one criteria. The whole point, I emphasise, is that those who can pay should pay, and should pay in full. Those who cannot pay, or who are vulnerable, or who fall into a special category of vulnerability by virtue of the nature of the case—for example, those involved in family and adoption cases—should pay at a lower, subsidised rate. So those who cannot pay will be assisted; those who can pay will be made to do so.
Lord Thomas of Gresford: I shall have a third shot. Will those who can pay be paying for those who cannot? That is the issue.
Lord Hunt of Wirral: The Committee will notice that the Minister does not rise to answer that fundamental point.
Baroness Scotland of Asthal: I have answered it five times. I do not believe that repetition brings clarity.
Lord Hunt of Wirral: I believe that Members of the Committee do not accept what the Minister has just said. We shall not inquire behind the veiled curtain as to what happened as regards Her Majesty's Treasury. Almost certainly, there would have been a huge debate between the Lord Chancellor's Department and the Treasury. I know that the Minister cannot divulge to us the way in which she undoubtedly fought our case for us behind the scenes and lost.
When I gave way to the Minister rather than her giving way to me, I was merely commending the noble and learned Lord, Lord Donaldson, on his plea in mitigation. But a plea in mitigation is based on the premise that the Minister is guilty. I give the noble Baroness the opportunity of putting everything right. She has already said that the Lord Chancellor has a duty to facilitate access to justice. That is all that the amendment seeks to do. I hoped that she might accept it. I should like to test the opinion of the Committee.
10.5 p.m.
On Question, Whether the said amendment (No. 132) shall be agreed to?
Their Lordships divided: Contents, 37; Non-Contents, 36.
Resolved in the affirmative, and amendment agreed to accordingly.
Lord Bassam of Brighton: I beg to move that the House do now resume.
House resumed.
House adjourned at sixteen minutes past ten o'clock.