Lords Sitting of 27 January 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 Hereford.

Inland Revenue: Interest Rates
Lord Dubs Lord Dubs asked Her Majesty's Government:
In the most recent tax year for which figures are available, what has been the income generated by the Inland Revenue through interest charges for late payment and what has been the corresponding repayment to taxpayers for overpayment.
Lord McIntosh of Haringey: My Lords, in the 12-month period to October 2001, the most recent for which data are available, interest payments received by the Inland Revenue amounted to some £417 million and the Revenue paid out some £397 million in interest.
Lord Dubs: My Lords, I am grateful to my noble friend for that reply. Will he confirm that if the Inland Revenue is owed money by a taxpayer it charges the taxpayer at 6½ per cent interest, whereas if the Inland Revenue owes money to a taxpayer it pays 2½ per cent interest? Will my noble friend justify the difference?
Lord McIntosh of Haringey: My Lords, the first thing to be said is that one person is not being charged interest at a higher rate on what he pays than on what he receives. The rate of interest on late payments does not constitute a penalty; it is designed to cancel any financial advantage for those who pay late. The rate of interest is set to encourage payment on time and to compensate the Exchequer for loss. The rate of interest on overpayments is the average commercial rate for return on deposits. The Inland Revenue is not a source of cheap credit.
Lord McNally: My Lords, does the Minister recall the claim of Ken Dodd that he was a pioneer of self-assessment? Is not the problem now with the Revenue itself? Is the noble Lord aware that some offices are now claiming a three-month delay in processing returns? That is before the big logjam caused by the January rush. Therefore, is not there a case for looking for carrots rather than sticks and giving a positive incentive to those who send in their returns early? I understand that that worked very well in persuading people to submit their tax returns online. There is evidence to suggest that instead of expensive advertising campaigns a little incentive to early payers would work very effectively.
Lord McIntosh of Haringey: My Lords, I refer to the principal incentive for early payment; that is, if you send in your tax return before 30th September, as I am sure the noble Lord, Lord McNally, does, the calculation is done for you rather than a person having to go through the self-assessment procedure. If the noble Lord, Lord McNally, is suggesting that there should be financial benefits from early payment, I believe that those who have more complex tax affairs would find that rather unfair.
Lord Brooke of Sutton Mandeville: My Lords, if the noble Lord, Lord Dubs, is correct in the two rates of interest he mentioned—I must infer that he is, as the Minister did not correct him—is it not the case, therefore, that the Inland Revenue owes the taxpayer a great deal more than the taxpayer owes the Inland Revenue? Will the Minister explain why that is so?
Lord McIntosh of Haringey: My Lords, my original Answer detailed not the interest charged but the payments received. I confirm the figure of 6½ per cent mentioned by the noble Lord, Lord Dubs. Different figures apply for different kinds of tax. Late payment of inheritance tax is charged at only 3 per cent. However, from the figures available to me, I cannot confirm the rate of interest for overpayment.
Lord Saatchi: My Lords, is it any wonder that we have this merry-go-round of over and underpayments of tax when just one branch of Her Majesty's Government now generates 1,185 pages of claim forms relating to taxable benefits, non-taxable benefits, allowances, credits, reliefs, tapers, disregards—an endless list of paper?
Lord McIntosh of Haringey: My Lords, I assume that as the noble Lord, Lord Saatchi, used the phrase "merry-go-round", he assumes that there is a large figure of overpayments and underpayments. In fact, the Inland Revenue collects £215 billion, so the plus or minus £400 million interest on overpayments and late payments is roughly 0.2 per cent of the total. I do not call that a bad figure.

Iraq
2.41 p.m.
Lord Avebury Lord Avebury asked Her Majesty's Government:
What action the Attorney-General is taking on the evidence presented to him by the chair of INDICT, Ann Clwyd MP, of criminal offences committed by Iraqi leaders under the Taking of Hostages Act 1982.
The Attorney-General (Lord Goldsmith): My Lords, INDICT asked me to grant consent to the commencement of prosecutions against Saddam Hussein, Tariq Aziz, Ali Hassan Al-Majid and Taha Ramadan. Having considered the material and with the benefit of the advice of Treasury counsel who

911
reviewed it all, I wrote to Ann Clwyd MP at length on 24th January to explain my conclusions that in none of these cases is the admissible evidence that INDICT provided by itself sufficient to commence a prosecution now and that a full police investigation would be needed. Saddam Hussein is in any event immune from criminal jurisdiction here while serving head of state of Iraq.
Lord Avebury: My Lords, does the noble and learned Lord agree that many lawyers would disagree with his attribution of immunity to Saddam as head of state and that, as a matter of public and international law, crimes against humanity and war crimes, whether committed by a head of state or not, are not granted that immunity? Does he also agree that in addition to the evidence which has been submitted by Ms Ann Clwyd, statements have also been made by 1,800 people who were traced and interviewed by the Ministry of Defence in relation to Operation Sandcastle? Is he really saying that in spite of all this mass of evidence, there are not sufficient grounds on which to prosecute Iraqi leaders? Will he place a copy of the letter to Ann Clwyd in the Library of the House so that others may judge the validity of his conclusions?
Lord Goldsmith: My Lords, the noble Lord raises three questions. First, I do not agree that other lawyers would take the view that Saddam Hussein was not immune from prosecution. The immunity of heads of state was confirmed by the judgment of the International Court of Justice in Democratic Republic of the Congo v Belgium on only 14th February last year. I understand that INDICT's advisers agree with that view.
Secondly, the noble Lord raises a question about the adequacy of the evidence. Someone believing that they know what happened is one thing, but proving it in a criminal court is a wholly different proposition. Having taken the advice of experienced Treasury counsel and considered the matter myself, although the evidence that INDICT has presented to me is telling at face value, I am not satisfied that it goes sufficiently far to justify a prosecution now.
Thirdly, having regard to the confidentiality of prosecution matters and the fact that the evidence came from Ann Clwyd herself, I shall consider the noble Lord's question about whether I would place in the Library of the House a copy of the letter that I have sent.
Lord Campbell of Alloway: My Lords, the noble and learned Lord's explanation of the Government's attitude appears to be wholly satisfactory, but I cannot understand why it should now always be assumed that the evidence would warrant a prosecution. Why should Her Majesty's Government have to prosecute? Is there no one else who would wish to prosecute?
Lord Goldsmith: My Lords, of course I am grateful for the noble Lord's statement that he finds what I said satisfactory. However, I ought to point out that what I have said is not a government statement: it is a statement of my view as an independent Law Officer, having considered the detail of the evidence in the case.
Lord Hooson: My Lords, while Saddam Hussein is head of state he is immune from prosecution, but would the noble and learned Lord tell us whether, if he were displaced, he would be liable for offences that he might have committed while head of state? Surely he would be.
Lord Goldsmith: My Lords, I have been asked to consider the question as of now, and as of now the point that the noble Lord makes is entirely hypothetical.
Lord Stoddart of Swindon: My Lords, the noble Lord has raised a very interesting question as to who could be prosecuted for war crimes. What would be the position if, for example, there was an intervention in Iraq in which civilians were killed by British and American troops operating together, and that was considered a war crime? Would President Bush be immune from prosecution, but Tony Blair liable for prosecution?
Lord Goldsmith: My Lords, that question, raising a number of hypothetical issues as it does, seems to me to fall outside the terms of the Question tabled by the noble Lord, Lord Avebury.
Lord Avebury: My Lords, would the Minister kindly answer the other question that I put to him, which was whether he had examined the evidence accumulated by Operation Sandcastle, conducted by the Ministry of Defence at a cost of more than £400,000, in which 1,800 witnesses were traced? I believe that statements were taken from more than 1,000 of them. Does he not take all that evidence into consideration, in addition to that submitted by INDICT, in determining whether prosecutions should be instituted?
Lord Goldsmith: My Lords, I most certainly have. The Sandcastle material to which the noble Lord refers does not relate solely to the issue that I was asked to consider, which was that of hostage taking. It covers many other areas as well. I can confirm that that material was looked at in detail.
I give the assurance that I have taken the matter very seriously. I have given it my full and personal attention. In addition, members of my staff have spent days reviewing all the material, including the Sandcastle material. Treasury counsel experienced in such matters has also considered it. I assure the noble Lord that it has all been taken into account.

Barnett Formula
2.48 p m.
Lord Barnett Lord Barnett asked Her Majesty's Government:
Whether they have any plans to scrap the Barnett formula with respect to the allocation of public expenditure.
Lord McIntosh of Haringey: My Lords, the Government have no plans to change the Barnett formula. The Government's funding policies for the devolved administrations were set out in the updated statement of funding policy published by the Treasury on 15th July 2002.
Lord Barnett: My Lords, I think that I am obliged to my noble friend for that Answer. However, if he has no plans to scrap the formula, the simple question must be, "Why not?". After all, I am sure he is aware that it is grossly unfair. It was never a formula when I invented it; it became one only after 18 years of the previous administration and under this one. It is grossly unfair and should not have been continued. Will the noble Lord therefore reconsider his Answer and ask the Treasury to look again and consider why it does not propose to scrap it? It can keep the name; I would be very happy about that.
Lord McIntosh of Haringey: My Lords, my noble friend Lord Barnett is fully entitled to disown his offspring; there is no law against that. However, I do not accept that it is wholly unfair. The matter was given great consideration by the Constitution Committee, chaired by the noble Lord, Lord Norton. Although it has many criticisms to make of the Barnett formula, paragraph 105 of its report states:
"We do not have a neat ready-made alternative to Barnett to propose".
It proposes instead a needs review, the use of a periodic basis rather than an annual one, and a phased transition to any new system. That does not sound very attractive to me.
Lord Campbell of Croy: My Lords, while the Barnett formula has become a legend and has proved acceptable to public opinion in Scotland, thereby consigning the noble Lord's name to posterity—deservedly—is there not wide misapprehension about its precise effects?
Lord McIntosh of Haringey: My Lords, we had a very detailed debate on this matter in the House some 14 months ago. A majority of speakers were broadly in favour of the formula, largely because they came from Scotland and Wales and had a significant interest in that respect. It is important to make clear what the Barnett formula is. It is not the basis on which higher payments are made to Scotland or Northern Ireland in particular, but it may reflect a higher baseline, which was produced on the basis of a needs assessment involving the Scotland Act 1978. It applies only to block payments, not to annual managed expenditure
914
and only to changes in block payments and excludes such matters as the common agricultural policy, National Health Service expenditure, housing expenditure and so on, when those matters are devolved. It does not even involve all devolved expenditure because devolved expenditure funded by Barnett money has to be added to borrowing, local taxation and European Union receipts. It is really not such a big deal as all that.
Lord Hughes of Woodside: My Lords—
Lord Shutt of Greetland: My Lords—
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, we have plenty of time if we start with the noble Lord, Lord Shutt, followed by the noble Lord, Lord Hughes.
Lord Shutt of Greetland: My Lords, does the Minister agree that if there is devolution in England, the Barnett formula will not last the course? If there is devolution in England and people are asked to vote for it, should they not know the financial settlement for which they will have to vote?
Lord McIntosh of Haringey: My Lords, that, to use the phrase of my noble and learned friend Lord Goldsmith, is a hypothetical question. We do not have devolution in England and, even if we had, it is by no means certain that all regions of England would wish to take advantage of it. Under those circumstances, we should face the issue when we come to it.
Lord Hughes of Woodside: My Lords, although, it is certainly true that the Barnett formula has very little effect on the total grant in Scotland, does my noble friend accept that the noble Lord, Lord Barnett, is a cult figure in Scotland and that his formula is regarded as immutable? Perhaps we had better accept that lie is immune from prosecution.
Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Barnett, has already said in this House that he does not want the arrangement to be called the Barnett formula. I believe that he wants it to be called "the Barnett granddaughter's formula" because that is the nearest relation that he is prepared to have accepted. I certainly accept that he is a cult figure in Scotland, but not just for that reason.
Lord Elis-Thomas: My Lords, the noble Lord, Lord Barnett, is a cult figure in Wales in his own right, and not on account of his formula. Does the Minister agree that a formula that was devised for the transfer of funding between territorial departments is not acceptable at a time when financial transfers are bound to be the subject of political scrutiny by elected bodies?
Lord McIntosh of Haringey: Not necessarily, my Lords, no. I can see circumstances in which that might be correct but the basic experience of the Barnett formula is that it has avoided the heroic jousts that

915
took place in the Star Chamber between the end of the Goschen formula in 1959 and the start of the Barnett formula in 1978 or 1979. It works and it provides a degree of security and certainty. It is based on known facts about populations and the known baseline. I do not believe that those advantages should be taken too lightly.
Lord Roberts of Conwy: My Lords, if it is not the Government's intention to apply the Barnett formula to regional assemblies in England if they are established, will that not be very unfair because, as we have heard, Scotland and Wales, where the Barnett formula operates, have done rather well by its use?
Lord McIntosh of Haringey: My Lords, I did not say that it was the Government's intention not to apply the Barnett formula to regions in England and Wales; I said that we have yet to see finalised legislation involving the regions of England and Wales. In any case, the Barnett formula in the devolved administrations has never been based on statute. There is no legislative backing for it; the current Government's use of it started with the White Paper on Scotland in 1997, not with the Scotland Act.
Baroness Carnegy of Lour: My Lords, would the noble Lord agree—
Lord Maclennan of Rogart: My Lords—
Lord Stoddart of Swindon: My Lords—
Lord Williams of Mostyn: My Lords, it is now the turn of the Liberal Democrats, followed by the noble Lord, Lord Stoddart.
Lord Maclennan of Rogart: My Lords, while acknowledging, as the Minister said, that the Barnett formula may provide a degree of certainty, having been operative since 1978, does he also recognise that there is growing uncertainty about its equity? Although the Government may be losing the head of steam for constitutional reform, they are in the process of legislating to allow views to be expressed about regional government in England. It can only make sense to give this arrangement some serious discussion, perhaps by establishing a commission with broad terms of reference that can take account of the criticisms being made by the noble Lord, Lord Barnett, and others, and come up with a more dispassionate view of its equity.
Lord McIntosh of Haringey: My Lords, there has been doubt about the Barnett formula on the grounds of equity since it first came into operation. I do not accept what the noble Lord, Lord Maclennan, says about there being growing concern about it. After all, it was thought at the time that, because it was applied only to increases, there would gradually be convergence between the government funding per head of population in the nations of the United
916
Kingdom. That has not happened, partly because the formula has been bypassed on a number of occasions, particularly during the 1980s. However, on the whole I do not believe that there is increasing concern, except perhaps in your Lordships' House, spurred on by the noble Lord, Lord Barnett, himself.
Lord Stoddart of Swindon: My Lords, when the noble Lord, Lord Barnett, says that he is irrelevant, perhaps we should listen to him. Is the Minister aware that people in the south of England, who are being told that their rates might increase by 20 per cent, and people in the north of England, who see Scotland being treated in a preferential way, feel great resentment, especially when they see that in Scotland students are treated better than they are in England, Wales and Northern Ireland? Moreover, old people get better treatment in Scotland than they do in the rest of the United Kingdom. Does he understand that that resentment will boil over one day and cause the Government much trouble?
Lord McIntosh of Haringey: My Lords, I gather from that that the noble Lord, Lord Stoddart, feels resentment but, since his resentment is based on so many misconceptions about public finances in this country—in the south of England, the north of England and in Scotland—his claim that there is resentment outside does not stand up very well.
Lord Barnett: My Lords, my noble friend seemed to argue that the reason for not scrapping the formula is because of all the various changes that have been made and the fact that there are a number of exclusions. Is he now saying that it is all right because it is only a little bit unfair?
Lord McIntosh of Haringey: My Lords, I did not say either of those things; I said that the formula works and is understandable, predictable and challengeable only on the grounds of different calculations of population. Those do not seem to be virtues that should be lightly thrown away.
Baroness Carnegy of Lour: My Lords—
Lord Williams of Mostyn: My Lords, we have exhausted the Barnett formula.

Rail Freight Grants
2.59 p.m.
Lord Berkeley: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as chairman of the Rail Freight Group.
The Question was as follows:
To ask Her Majesty's Government whether, in cutting new rail freight grants from over £50 million this year to zero for 2003–04, the Strategic Rail Authority is complying with its purposes under

917
Sections 205 and 207(2)(f) of the Transport Act 2000 to promote rail freight and "to enable persons providing railway services to plan the future of their businesses with a reasonable degree of assurance".
Lord McIntosh of Haringey: My Lords, the Strategic Rail Authority is acting in a manner entirely consistent with its purposes under the Act.
Lord Berkeley: My Lords, I am grateful to my noble friend for that Answer. Is he aware that, apart from affecting seriously business confidence in the industry, it is estimated that cutting these grants is likely to put 5 million more lorries a year on the roads? How is that in line with the Government's 10-year plan to reduce congestion and transfer more freight from road to rail?
Lord McIntosh of Haringey: My Lords, I believe that we should put this issue in context. The budget of £40 million for freight facilities grant and track access grant has become exhausted for this year. The Strategic Rail Authority has said that, until about the end of this year, no more applications which have not been contractually committed will be entertained. The advantage of doing that, and the purpose of doing so in relation to the purposes under the Transport Act 2000, is to avoid wasted effort and expense by bidders and, at the same time, to honour existing contractual commitments. In the context of a £33 billion budget over the 10-year period and virtually a £12 billion budget over the period of the current spending review, that does not seem to me to bring about the kind of conclusions envisaged by my noble friend Lord Berkeley.
Lord Bradshaw: My Lords, does the Minister share my concern about conflict of interest where large sums of public money are expended on the railway, mostly in the interests of train services operated by Virgin Trains? Does he agree that the fact that the chairman of the Strategic Rail Authority, his deputy and the rail regulator were all involved in that deal raises questions, and what does that mean for the rest or the railway, which will get virtually nothing?
Lord McIntosh of Haringey: My Lords, I believe that if the noble Lord, Lord Bradshaw, is to make accusations of conflict of interest, he had better do so other than with the benefit of parliamentary privilege. This is not a matter for me to comment on. He will know that the balance between expenditure on passenger services, which is what I believe he is referring to, and expenditure on freight services has been greatly affected by the freight charging review introduced by the rail regulator, to whom he referred, in October 2001. That has already halved the access costs to freight operators. The £500 million extra cost has been paid for by the Strategic Rail Authority in its grant to Network Rail.
If the substance behind the noble Lord's question is the balance between passenger and freight expenditure rather than accusations of conflict of interest, then I do not believe that he has any grounds to go on.
Lord Lea of Crondall: My Lords, I return to the Minister's reply to the supplementary question of my noble friend Lord Berkeley concerning the relationship of this matter to the 10-year plan. Can we infer from the Minister's reply that the Government are still committed to the 10-year plan? In particular, can we infer that the figure of 80 per cent for growth in rail freight provided for within the 10-year plan is still government policy and that the Government are committed to achieving that?
Lord McIntosh of Haringey: My Lords, the Government are, indeed, committed to their 10-year plan. As I have already said to the House, a full review of that will take place within the next 18 months. As to the immediate future, it is a little difficult for me to comment because the Strategic Rail Authority will produce its strategic plan only this week, on Thursday, 30th January.
The Lord Bishop of Hereford: My Lords, if certainty and predictability are good arguments for maintaining the Barnett formula, can the Minister tell us why they are not equally good arguments for maintaining rail freight grant where the ability to plan ahead is essential if businesses want to make the transfer? Furthermore, if he is not persuaded that the legal or business arguments are decisive in this case, will he agree that the environmental arguments should be and that the transfer of freight from road to rail is of enormous environmental importance? It is a policy to which the Government are committed. Will they not make an exception in this case to enable the grants to continue? Can he also confirm that, even if the grants are not to be continued in England, they will be continued in Wales and Scotland?
Lord McIntosh of Haringey: My Lords, I believe that the thrust of the intellectual argument follows the same course in both Questions. Certainty and ability to plan are good things. That applies to the Barnett formula and to the action of the Strategic Rail Authority. The authority said that it has no money for new applications under the freight facilities grant or the track access grant this year. Therefore, it said that time and money should not be spent in producing anything now but that thought should be given to submitting applications towards the end of this year as money will be available next year.
However, that is against the situation where tonnage of rail freight has increased over the past 20 years or so from 17.6 billion tonne/kilometres in 1980 to 19.4 billion tonne/kilometres in 2003. The commitment to the extension of rail freight—this is the environmental argument—is still as strong as ever.
Lord Faulkner of Worcester: My Lords, is it not the case that, when Mr Bowker took over as chairman of the Strategic Rail Authority, the West Coast Main Line modernisation plan was in such disarray that there was no prospect of that line carrying even existing levels of freight in the future? It is only because

919
of the way that Mr Bowker and his team have rescued that project that it is now able to plan for growth in freight in the future.
Lord McIntosh of Haringey: My Lords, Mr Bowker and the Strategic Rail Authority inherited from their predecessors and from Railtrack not only a bow wave of renewals, which was inevitably necessary after Hatfield, but, as my noble friend Lord Faulkner said, also a whole series of projects with unclear specifications and poor project management. The West Coast Main Line was a very good example of that. Happily, not all projects are like that. I refer noble Lords, for example, to the Channel Tunnel Rail Link.

Harbours Bill [H.L.]
Lord Berkeley: My Lords, I beg to introduce a Bill to amend the procedure for dealing with applications for orders under Sections 14 or 16 of the Harbours Act 1964 and for making orders under Section 15 of that Act, and for connected purposes. I beg to move that this Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Berkeley.)
On Question, Bill read a first time, and to be printed.

Regional Assemblies (Preparations) Bill
Brought from the Commons; read a first time, and to be printed.

Community Care (Delayed Discharges etc.) Bill
3.8 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I beg to move that this Bill be now read a second time.
We are here today to debate a Bill that aims to bring an end to widespread delayed discharge, bring increased clarity to the roles and responsibilities of health and social care agencies, and increase the choice available to older people. On any given day in England, on average, 5,000 mainly older people are delayed in acute hospital beds across England. For each of those 5,000 people, something has gone wrong. Each of those individuals remains in a hospital bed unnecessarily when he or she can no longer benefit from acute treatment. First and foremost, that is bad for individuals who are delayed because, with each day that they remain on an acute ward, they are at risk of losing their independence and of becoming institutionalised.
Secondly, the effect upon the NHS of 5,000 delayed discharges per day is extremely worrying. As for each delay, other individuals will be waiting to enter
920
hospital. We must stop this colossal failure of the system. We must ensure that every patient who is likely to need services upon discharge receives a joined-up assessment of his needs as soon as possible and that, where services are needed, those are made available on the day that the patient is ready to go home. That is what the Bill will achieve.
I know there are those who argue that the Bill is unnecessary and suggest that as good progress has already been made on delayed discharges the issue can be tackled in other ways, such as through partnership and central performance management. I am the first to acknowledge the progress that has been made. I do not believe that the current level of heavy central intervention and top-down performance management that has brought about that reduction is consistent with the devolution and earned autonomy that we want to introduce across the health and social care system. It is also true that, even with the recent successes that we have achieved, the level of delay remains unacceptable. I do not believe that any older person should be delayed in an acute bed when he or she is ready to go home.
At Second Reading in another place my right honourable friend the Secretary of State announced that an extra £100 million per full year on top of the allocations already announced would be transferred from central NHS budgets to local authorities in order to meet the estimated costs to local authorities of the scheme. That means that lack of funding can no longer be used as an excuse for under-investment in delayed discharges.
Of course, there are issues around care home capacity in some parts of the country but we have a problem if we think that the only way to care for the older people in our society is to place them in care homes in ever increasing numbers. The National Service Framework for Older People makes clear that local authorities need to reduce their reliance on institutional care and instead invest in a wide range of alternate provision, including interim care, intermediate care, extra sheltered housing and intensive support at home. In other words, that means increasing our capacity so that services can be used flexibly to respond to an individual's needs rather than using capacity problems as an excuse for local authorities not having met their responsibilities.
I make clear that the Bill does not place any new responsibility upon local authorities. It does not require them to do anything other than what the best local authorities already do. Put simply, we expect local authorities to meet their existing responsibilities rather than, intentionally or unintentionally, passing the financial burden for some of those responsibilities on to the NHS. The Bill places a strong financial incentive upon local authorities to ensure that all individuals ready to leave acute hospital care are provided with the right care in the right place at the right time. It also places new duties upon the NHS that will ensure that robust discharge procedures are in place. I stress that the robustness of the new arrangements will be just as thorough on the NHS as on personal social services.

921
I shall explain the main provisions of the Bill in more detail. Clause 1 sets out its scope: that is, those patients to whom its provisions will apply. Under the Bill a qualifying hospital patient will be someone who is accommodated in an NHS hospital (or in an independent hospital following arrangements made by the NHS) receiving care of a description that will appear in regulations. In the first instance, the Bill will apply only to patients receiving acute care, but it is our intention that its scope should be gradually extended to other sectors as appropriate.
Clause 2 places a new duty upon the NHS formally to notify a local authority in cases where it looks likely that an individual will not be able to be safely discharged from hospital unless community care services are provided to him or her. We know that the earlier discharge planning begins the more successful the discharge will be, so we shall be stating in official guidance that that notification should take place as soon as the patient is admitted to hospital for emergency admissions and prior to admission for elective admissions.
Under Clause 3, once the local authority has been notified of a patient's case by the NHS, it will, in consultation with the NHS, carry out an assessment of the patient's needs and determine what community care services the patient will need in order to be safely discharged. As I said, the duty to assess the patient's needs is not new. The aim is to improve information flows and assessment procedures so that the NHS informs the local authority as early as possible that an individual may need services upon discharge and the local authority immediately acts upon that notification. That is vital. At the moment around a fifth of delays are due to patients waiting for the completion of an assessment of their future care. At the moment, in some cases the hospital may not even tell the local authority that it has a patient who may need community care services until just a few hours before the proposed time of discharge.
We have also taken the opportunity in Clause 3 to place a new, reciprocal duty upon the NHS to carry out its assessment of the patient's needs in consultation with the local authority. That will benefit the patient because it will ensure that he or she has the complete package of care that he or she needs without any gaps in services. It will benefit the local authority and the NHS because it will lead to improved communication and greater partnership as they work together to determine what is best in the interests of the patient. Under the clause the NHS must also provide the local authority with a formal notice of the proposed day of the patient's discharge. We shall use regulations to state that that must be given at least 24 hours before 9 a.m. on the proposed discharge date to ensure that the local authority has enough time to put the necessary services in place.
Clause 4 of the Bill introduces the financial incentive for local authorities to carry out promptly an assessment of the patient and to put services in place. The local authority will have at least two clear days in which to carry out an assessment of the patient's needs and to put services in place. However, in most cases it
922
will have more time than that because, on past figures, approximately 70 per cent of patients over 65 who are emergency admissions—the group most likely to be delayed—will spend longer than three days in hospital. Therefore, in the majority of cases, the local authority, together with the NHS, will have longer than the minimum to continue planning.
If, by the end of the pre-notified day of discharge, the patient cannot be discharged because the local authority has not carried out an assessment or because the social services needed to discharge him or her are not available, the local authority will be required to make a payment to the NHS for each day that the patient is delayed in order to reimburse the NHS for the costs of providing bed, board and personal care to a patient who should be the responsibility of social services. It will be required to make a payment only where the reason for a delay is that community care services are not in place. If NHS services are also not available, the charge will not apply. I believe that it is completely fair to expect local authorities to meet their responsibilities and where they fail to do so to make a payment to the NHS in that way. We have provided them with the funding to put in place the services and capacity needed to avoid delays, and they also need to live up to their side of the bargain. I do not believe that the NHS should pay the price for local authorities' failure.
I return to the point I made at the beginning of my speech. The Bill is not just about placing an incentive on local authorities. The NHS has responsibilities too. There are many cases where the NHS is responsible for creating the delay because it does not have effective discharge practices and procedures in place. Perhaps I can give an example of one area where consultants used to do a weekly ward round at which decisions to discharge were made with the unbelievable result that some patients had to wait an extra seven days before the decision to discharge was made. The contents of the Bill will be as tough on the NHS as on local government in relation to sorting out its act and ensuring that robust procedures are in place. In effect, the Bill will force local authorities and the NHS to look at how they handle their discharges and to put formal systems in place to deal with them. That alone will make an enormous difference to the numbers who currently experience delay.
Some consider it unfair that there is a financial incentive placed upon local authorities but not upon the NHS. The NHS already has considerable incentives to tackle delayed discharge because it is the NHS that loses out from the delay—both financially and because of reduced ability to meet its access targets. The NHS will also be judged for its star ratings on performance with respect to delayed discharge.
The intention is to introduce a financial incentive only in that part of the system where we believe that it will have a genuinely beneficial effect, rather than simply for its own sake.
In Part 2 of the Bill, the purpose of Clause 12 is to make the provision of intermediate care and community equipment services free of charge.

923
Charging often stands in the way of service integration and patients wait too long for the care they need. Delayed discharges rise too. We want to break that cycle. With charging removed, it will be easier to arrange packages of intermediate care with inputs from health and social services, or a piece of equipment from a joint equipment store. Clause 12 will remove one of the last barriers to integration and should contribute to reduced hospital discharge.
The new powers are general in scope but specific in intent. Clause 13 means that it will be for the National Assembly for Wales to decide how independently of England to exercise the new power. The only limitation to the powers applying to both England and Wales is that accommodation under the National Assistance Act 1948 and personal care, including to carers, may only be provided free for up to six weeks.
The Bill is not intended to penalise local authorities, as has been suggested by some. It is intended to create a genuine incentive for them to use the funding increases that they have been given as we intended—to put a wide range of services and capacity in place for older people in the community. It is also just as much about placing new responsibilities on the NHS to ensure that it notifies local authorities in good time and works in partnership with them to effect prompt and effective discharge.
The Bill represents an important opportunity to ensure that the money invested in older people's services results in older persons having more choice about where they go when they leave hospital. It will bring an end to thousands of older people suffering needlessly each day as they wait in an acute hospital bed. The Bill deserves the support of the House.
Moved, That the Bill be now read a second time.—(Lord Hunt of Kings Heath.)
3.23 p.m.
Earl Howe: My Lords, the Minister has—as always—presented a clear and helpful analysis—and for that I readily thank him. Regrettably, however, today is not one for rejoicing. It would have been pleasant for me to welcome the content of the Bill, not just its exposition, but the most I can say is that Part 2 will not cause us to fall out.
Part 1, however, is so fundamentally misconceived that I tend to feel that there is no help for it. At one time I was tempted to table a Motion to defeat the Bill on Second Reading. With some reluctance I concluded that that would have been wrong, bearing in mind the customs and practice of the House. I did feel, however, it right to express my deep reservations about the Bill in the form of an amendment to the Second Reading Motion. In doing so, I align myself fully with the noble Lord, Lord Clement-Jones—whose amendment takes precedence over mine.
The fact that my party and the Liberal Democrats are united in opposition to the measure is a reflection not of party politics but of a united opposition in the country at large. This is not a party issue. After all, the Bill is designed to tackle a feature of our health and
924
social care system that everyone agrees is wasteful and damaging; namely, the undue delay that patients often suffer before being able to leave hospital for a more appropriate care setting. The Minister told us that on any one day about 5,000 beds are unnecessarily occupied in that way. It would be wonderful to hit upon a formula or remedy that would solve the problem at a stroke—a problem that, not surprisingly, affects elderly patients more than younger ones.
When someone is fit to leave hospital, it does that person no favours to be left in hospital when they could be looked after at home or in residential care. The longer an elderly person stays in hospital, the more their confidence dwindles and the less accustomed they become to ordinary life. At the same time, other patients in need of that same acute bed have to wait longer. If at the last minute the bed is not available, they may even find that their operation has been cancelled. For the hospital itself, a blocked bed—if I may use that rather insensitive expression—is a serious waste of resources.
One of the Government's achievements, for which I give them full credit, has been to encourage hospitals and local authorities to work in partnership in an effort to minimise delays in discharging patients. In many parts of the country those partnership arrangements have worked well for a number of years. There is no doubt that best practice and a spirit of cooperation are more and more in evidence.
From the statistics, it is striking that not only is the number of people waiting to leave hospital on any one day coming down but also fewer people are waiting for a lengthy period. Of course there is still a long way to go. Even now, more than one third of people who suffer a delayed discharge wait for more than one month. That is unacceptable. Equally unacceptable is the rising number of patients who are discharged prematurely, then readmitted soon after as emergency cases.
Among the root causes of delayed discharges, one above all stands out. That is the current lack of capacity in the care home sector. Estimates vary as to the number of care home beds lost since the Government came to office. The most authoritative indicator is that of Laing and Buisson, who found that more than 60,000 places in long-stay residential settings disappeared between 1997 and 2002—14,000 of those in the past year alone.
That decline has occurred at the very time when the key population group most in need of social care—the over-80s—has been rising. The average level of occupancy in care homes for the elderly is currently over 90 per cent. Some parts of the country, especially southern England, are experiencing an acute shortage of care home places, not only as a result of closures but because London boroughs are able to purchase places outside their own areas at top rates.
The closing down of care homes is a subject that the House has debated on a number of occasions, so I do not intend to take up time today reiterating my diatribe against Government policies that have brought about that situation. The key point in the

925
context of the Bill is that to penalise a local authority for its failure to find a care home place is to blame it for something that is almost inevitably beyond its control.
In Sweden, where the policy apparently originated, there is no shortage of capacity in the care home sector—which, in the main, is publicly owned. In the UK, the care home sector is a diverse mix of private and public. There are simply not the same levers for a local authority to pull to ensure that the right care home place is available when needed. It is not clear, either, that the Swedish experience has been entirely happy. Both in absolute terms and in proportion to its population, Sweden still has more people blocking hospital beds than does the UK. That alone should cause the Government to think again as to whether their policy will actually work.
But other more serious considerations should have instilled doubt. The Government believe in partnership. What happens to a partnership when one partner is issued with a gun and told to fire it at the other? To move from a situation in which trusts and social services co-operate in a common cause to one where trusts have the whip hand over social services and can exercise it with impunity is a recipe for conflict. It moves diametrically against the flow of recent policy designed to cultivate joint working.
Joint working will not disappear, of course, but instead of being creative it will be confrontational. Sometimes it is not easy for two organisations to build up a relationship of trust, but it is easy for that trust to be broken. I have no doubt that some hospital managers, given the opportunity, will decide to put their own budgets before the interests of external partners.
The Bill will foster a claims culture between two arms of the public service. One has to ask whether that is healthy or constructive: I do not believe that it is. We should not underestimate the extent to which local authorities whose budgets are stretched to the ultimate will wish to dispute and contest the payments imposed on them. The threat of such penalties will undoubtedly skew the day-to-day priorities of social services. An elderly person living at home in need of domiciliary care will take second place to an elderly person waiting to be discharged from hospital who is also in need of domiciliary care. The threat of financial penalties will create an imperative to find the hospital patient a place to go before others have a look in. It may not be the right place or the best place.
That will, in turn, lead to a certain culture. We will move from services centred on the needs and wishes of patients to a situation in which the patient becomes a parcel or commodity to be shifted from here to there, so long as he does not continue to occupy a hospital bed. The patient's voice and choice may no longer influence the care setting selected. The Bill says nothing about the right of patients to be consulted on what happens to them.
The Minister may believe it is harsh to call the Bill dehumanising, but I do not think so. It opens up all kinds of questions; for example, patient confidentiality. The Bill contains no rules or criteria
926
governing the way in which a referral to social services should be made; the consent of the patient would be a good start. But what happens when the patient finds out—as he will—that the hospital wants rid of him and that he represents a liability to the local taxpayer?
Not all patients are assertive about their wishes. I dare say we all know people who adopt a stoical approach to life. It is not hard to imagine an elderly person, who is made aware that every day he or she is occupying a hospital bed will mean a fine for social services, deciding that they do not want to be a nuisance to anyone and agreeing to go wherever they are told. The Bill brings no benefit to such people if they find themselves discharged into the wrong setting.
It is not a satisfactory answer to say "Ah well, there is always the local authority complaints procedure". Making a complaint after one has been shunted out to somewhere unsuitable is no substitute for being able to exercise an element of choice in the first instance. Many elderly people will find making a complaint far too daunting and will simply not do so. We will find patients being moved to any old care home as a temporary expedient and then being moved on again; or else having to stay permanently somewhere they do not like. It is in these subtle ways that the dehumanising effects of the Bill will be felt.
All this presupposes that a system of financial penalties—or "incentives" in the new speak of the Bill—will reduce the incidence of delayed discharges. The example of Sweden should suggest that there is a limit to how effective such a mechanism can be. But the shortage of care home capacity means that there is another dimension to the policy; it will create unintended perverse incentives. If a GP is looking for a care home for his patient and is unable to find one, the obvious thing will be to refer the patient to hospital. The problem will no longer he his, but the local authority's. That is not a fanciful hypothesis. The net result will be more hospital beds that are blocked, not fewer.
A further perverse incentive will arise for care home owners. In a suppliers' market, with local authorities managing tight budgets, the existence of penalties will enable some care home owners to hold social services to ransom by ratcheting up their weekly charges. It will be cheaper for the local authority to pay up than to pay the fine. The existence of the fines is therefore unlikely in itself to act as a spur to the one thing we need, which is the creation of additional capacity in the system. It will simply be a spur to inflation and a drain on resources.
That is just one way in which a system of financial penalties risks distorting the market. It would of course be helpful if the new money that has been promised to social services next year were to enable them to launch an expansion of home care services. However, regrettably, that is not likely, at least not to any great degree: the number of households receiving community care has gone down quite sharply in recent years, so there is a great deal of ground to make up at a time when the recruitment and retention of care workers is almost intractably difficult.

927
What we have in this Bill is someone's bright idea for tackling a single symptom of a problem that is much wider than blocked beds in hospital. The Bill does nothing to address inappropriate admissions to hospital—in fact, as I suggested, it may exacerbate them. It does nothing to promote preventive care, which is one of the key ways to help keep elderly people out of hospital in the first instance. I am a paid-up fan of two rather unsung professions: chiropody and physiotherapy. I am convinced that investing in those areas would reap dividends far in excess of any that are likely to emerge from re-erecting barriers between the NHS and local government. Certainly, we should aim to try to spread best practice in hospital discharge procedures, but do not let us imagine that this Bill will help to do that.
It is depressing to have to be so negative about a Bill whose origins, I am sure, are well-intentioned. But it cannot be allowed to pass through this House without the severest of protests. No group of people whom it directly affects will gain from it: not patients, not social services, and not the NHS—despite the extra money that may flow to it. I await the speeches of other noble Lords with interest, but I hope it is not too late for the Government to recognise a poorly thought-through idea when they see one and withdraw this measure before it has the chance to do any damage.
3.39 p.m.
The Lord Clement-Jones The Lord Clement-Jones rose to move, as an amendment to the Motion that this Bill be now read a second time, at end to insert "but this House regrets that the Bill fails to tackle the causes of delayed discharges of patients from hospitals, creates perverse incentives which will undermine joint working between local authorities and the National Health Service, and will distort priorities for care of elderly people by placing the requirement to meet discharge targets ahead of measures to avoid hospital admission".
The noble Lord said: MyLords, I join the noble Earl, Lord Howe, in thanking the Minister for his succinct introduction. I did not feel it had his usual enthusiasm, but perhaps I am reading into his speech something that did not exist—perhaps I should hope that it did not have his usual enthusiasm.
In the Bill we have yet another product from the hyperactive Secretary of State for Health's department of bright ideas. As the noble Earl, Lord Howe, mentioned, the model adopted in the Bill hails from Sweden, yet the Swedish system operates completely differently, with responsibilities for health and social care allocated in very different ways to very different bodies.
Furthermore, the evidence is that the Swedish model has actually worsened relationships between municipalities and county councils, which run the hospitals. As it is, 6 per cent of Sweden's acute beds are apparently still blocked despite the reforms. But the Government have such faith in their health tourism experience that no pilot scheme is planned in the UK.
928
In sum, the Government clearly think that the solution set out in the Bill is like a piece of flat pack furniture that can be bought in Sweden and reassembled here without modification.
The timing planned for the introduction of the Bill ensures the maximum penalty on local government. The increase in funding of 6 per cent to social services announced last year will not have flowed through into improved or new services by this spring. At the very least, pilots should be conducted and implementation delayed across the rest of the country until 2004.
The dangers of the Government's approach are enormous. Their own figures show clearly that taxpayers' money is being wasted in ever greater sums on readmitting the elderly to NHS beds. During the past two years, there has been an increase of 19 per cent in emergency readmissions to hospital within 28 days of discharge. Figures from the second quarter of 2002 show that 8 per cent of people aged 75 and over are now being readmitted within 28 days of discharge.
Delayed discharge figures are running at about 5,000 patients at any one time. As both the Health Select Committee and Wanless reports highlighted, that is due to a major loss of beds in residential and private nursing homes between 1997 and 2001. The Government do not like the Laing and Buisson figures cited by the noble Earl, Lord Howe, so let me put the Wanless figure to them. Wanless estimates the total at 25,700. However, it is only this year that the Government have committed to above-inflation increases for social services to address that crisis.
Allied to that is a great shortage of occupational therapists—15 per cent—who are so necessary to the discharge process. The Government have finally come up with increased funding for social care that will start to match the rise in NHS funding, but it is doubtful that that increase will be enough to make up for past underfunding. It is hardly surprising that in those circumstances, coming on top of that major care bed crisis, the Bill has generated something akin to panic in both the NHS and social services.
The catalogue of problems with the Bill is long. As the Wanless report said,
"targets must be used with care, especially in a service as complex as the NHS. In particular, they must be designed to minimize the risk of creating perverse incentives".
But the Bill will by its nature create a series of perverse incentives. It will mean that the quickest way to get care will be to get admitted to hospital. Social services may concentrate more on those who are in hospital, rather than on those who are at home. More people may therefore try to get admitted because that will be the route to get a fast initial assessment.
NHS trusts will also take the risk of readmission by discharging early, which may lead to more emergency readmissions. The Bill may encourage the simplest residential home solution rather than the more complex home-based solution. There may be pressure to move into second-best residential care if a place is available, rather than wait for a more suitable care home.
As a result of the Bill, social services will prioritise NHS patients over those in hospices, because of potential fines, so the former will be assessed urgently and will benefit from quicker service on home adaptations. We have already had plaintive briefings from the hospice movement, which says that it wants to be included in the Bill because of its fears in that respect.
A further, central criticism of the Bill is that it sets up a blame game between the NHS and local government. The arrangements will be carried out in a punitive, blaming spirit, not one of partnership and collaboration. They tear up the slow and painful progress made in the Health Act 1999 and the Health and Social Care Act 2001 from joint working through to partnership arrangements and care trusts. The Government used to talk of tearing down the Berlin Wall between health and social care. Now we have the equivalent of the reintroduction of Checkpoint Charlie by the same Ministers.
Voluntary and statutory sectors are unanimous in their view that the Bill will do massive damage to joint working. Even before the Bill's details were available, the Select Committee warned:
"There are real risks that perverse incentives will be created that will undermine partnerships that have taken time to develop, and foster an unproductive culture of buck passing and mutual blame between health and social care. We agree that appropriate incentives have a role to play, but we would also urge the development of positive incentives that reward good practice, rather than any precipitate and over-zealous emphasis on penalties. We recommend that any new scheme should be subject to piloting".
How true.
Despite what the Minister said, the sanctions for failure set out in the Bill are totally one-sided. There are no sanctions on the NHS. The Bill unfairly shifts all the blame to local government. Even the Minister, in his briefings to Members of the House, admitted that that is not how to approach the situation. The Government first claimed that local government would be able to cope with the 6 per cent increase and then announced that £100 million extra would be given to local government. But in another place, the Minister, Jacqui Smith, admitted that there had been no consultation on whether that £100 million was adequate. It seems to be based on some spurious calculation of an estimated 4,200 delayed discharges. I wonder whether the Minister can clarify that.
Furthermore, the £100 million, if levied in fines, will go in entirely the wrong direction. The fines will be a drain on local government resources, not directed to creating more capacity in social care. Money spent on fines should go to those needing social care, not to the NHS. At the very least, it should go to primary care trusts and should be applied only following consultation between health and social care stakeholders. To cap it all, under the Bill the dispute procedure between the NHS and social services will not be independently conducted but will be under the aegis of strategic health authorities.
However, for me, the key problem with the Bill is that is puts beds before patients. It sets up the potential for trench warfare between relatives, patients and
930
NHS acute trusts. This is not some disagreement between Opposition parties and the Government on the niceties of a bureaucratic solution to a problem. It involves the fundamental issue of patients' rights. Vulnerable people may be kicked out of hospital to fulfil a Government target, not because they are well enough to leave or will receive appropriate care. Harrowing cases are already coming to light in which inappropriate pressure has been placed on patients to ensure early discharge.
It is well known that early discharge from acute care settings can have ill-effects on older people or the terminally ill. The Hospital Discharge Workbook, a revised version of which will, I believe, be avail able today, may set out the procedures for discharge, but it does not set out the circumstances in which a patient is considered fit for discharge. The definition of eligibility for discharge is crucial, but can be specified by each acute trust. Without provision for proper consultation of patients and carers, the procedure for disputes on discharge, with appeal to continuing care panels, will become ever more frequently invoked. I fear that patients and carers will have to become legalistic entirely as a result of the Bill.
The Bill even runs counter to the National Service Framework for Older People, which states that older people must be treated as individuals and enabled to make choices about their care. I see none of that in the Bill.
As for assessment under the Bill, it is clear that there is no time for comprehensive assessment while patients are in an NHS hospital; there will be only a partial assessment. The Bill will disrupt progress towards the single assessment process between health and social care envisaged by the NHS Plan, which stated that a single assessment process was meant to come into universal effect in 2004. Older people need good care provided at home or a good care home. It is imperative that there is a clear statement of rights of patients and carers and that they have the right to a single assessment process within a set time. The Bill provides neither.
Let me emphasise once again that my criticisms are not criticisms derived only from these Benches. The common theme among all those involved in this field is that the Government have not listened to any alternative. Let us look at some of the responses to the Government's consultation document issued in July 2002. One hundred per cent felt that April 2003 was too soon for implementation of the Bill; all felt that three days for putting together a care plan was unrealistic if patients and carers were always to be involved; 77 per cent of respondents believed that reimbursement proposals could damage partnerships.
Those are substantial criticisms with substantial support. But does the Secretary of State take any notice of that consultation? What is the point of consultation if the Secretary of State takes no notice? It always seems that the Secretary of State knows better. Yet there is massive agreement between the Association of Directors of Social Services, the NHS Confederation and the Local Government

931
Association on alternatives. They want to see a whole systems approach which looks across the board at the care of older people and does not simply concentrate on delayed discharge. In particular it includes preventive services.
The Wanless report, coming with the seal of approval of the Treasury, talked of whole systems modelling to provide better understanding of the interaction between health and social care. "ithink" is the whole systems model being put forward by local government, health service managers and social services directors. It involves joint local protocols and local action plans prepared in co-operation. Yet in another place the Minister, Jacqui Smith, cast doubt on all this in her anxiety to make the argument for the Bill. The Government have not even listened to the Chief Inspector of Social Services. As we often find to be the case, there are also lessons to be drawn from Scotland.
In conclusion, this Bill puts a price on patients' heads. The Government are turning vulnerable older people into commodities to be haggled over by the NHS and social services. Fining social services for delayed discharges is a simplistic solution to a complex problem. Our view is that the Bill in summary does not tackle the fundamental problems of delayed discharges. It creates perverse incentives. It will undermine joint working between the NHS and local authorities and will distort priorities for the care of older people.
When this Government were in opposition, the Labour Party bitterly criticised arbitrary mechanisms like the internal market. But this Bill is creating a far worse monster which will be far more divisive to health and social care. I beg to move.
Moved, as an amendment to the Motion that the Bill be now read a second time, at end to insert "but this House regrets that the Bill fails to tackle the causes of delayed discharges of patients from hospitals, creates perverse incentives which will undermine joint working between local authorities and the National Health Service, and will distort priorities for care of elderly people by placing the requirement to meet discharge targets ahead of measures to avoid hospital admission".—(Lord Clement-Jones.)
3.53 p.m.
Lord Chan: My Lords, I thank the Minister for his helpful introduction to the Bill. I must declare my interest as a non-executive director of a primary care trust on Merseyside.
Any scheme that reduces the number of delayed discharges from hospitals, particularly acute hospitals, should be welcomed because more patients can then be admitted for essential treatment. Reducing delayed discharges will also reduce the cost of caring for older people who no longer need hospital treatment. The local authority, through its social services, is responsible for putting in place the community care needed by older patients in order that they can be safely discharged from hospital.
932
Through this Bill the Government aim to reduce the number of delayed discharges affecting older people by a system of reimbursement whereby a local authority makes a payment—in reality a fine—to the healthcare provider, usually a hospital. The Bill also provides the power to remove, in circumstances set out in regulations, local authorities' power to charge for certain community services. The Bill makes no mention of any measures to prevent the admission of older people into our hospitals, or to their readmission.
The care of older people in the community requires partnership between local councils and the NHS, as emphasised by the Minister and by the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones. But the scheme described in this Bill could undermine existing local partnerships by creating financial and practical barriers. Social services are liable to make a payment amounting to £120 per day in London and £100 per day elsewhere in England and Wales for every older person whose discharge is delayed. That payment will be seen as the penalty for social services failing to make or complete the assessment and for failing to provide the community service they decided was necessary.
The NHS trust must give formal notice that a patient is likely to need community care on discharge from hospital. Social services must then assess the patient and determine what community care is needed. Social services have a minimum of three days to carry out an assessment once the NHS trust notifies it of the day of the patient's discharge. After that period social services have to pay a fine for the delayed discharge.
It does not take much imagination to realise how easy it will be for disputes to arise between the NHS trust and social services. My first question is therefore to ask what steps have been recommended to prevent disputes from arising and what mechanism will be in place to deal rapidly with disputes between NHS bodies and local authority social services in order that disputed delayed discharges do not take more than two weeks to resolve.
In order to strengthen local partnerships between the NHS and social services, a preparatory period is needed to ensure adequate numbers of social workers are available to respond to assessments for the discharge of older people from hospital. In many local authorities there continues to be a 20 per cent unfilled vacancy for social workers. The Bill will add pressure to an already understaffed service.
In order to reduce delayed discharges, adequate nursing home beds in the community should be available as one important measure. In Wirral, for example, so many local authority and private care homes have closed in the past five years that there is now a shortage of accommodation. In addition, intermediate care facilities are poorly developed. Equipment for older people with chronic conditions and disability to help them live at home in the community is another essential. But such equipment is currently in short supply as we cope with an increasingly older population.

933
The Government have decreed that the reimbursement scheme should be implemented from April this year—less than three months away. By comparison, as mentioned by the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, when a similar scheme was introduced in Sweden a two-year preparation period was in place. I therefore ask my second question: should not more time be given to local authorities to ensure community care provision is adequate for older people before this Bill and the penalties to be paid are introduced?
Finally, the money paid by social services under the reimbursement scheme will go to the NHS hospital where the patient's discharge is delayed. There is no guarantee that the money will be used to improve services for older people. There is a suspicion that it will go to cover the increased costs of general hospital services. Would it not be better to give the money to PCTs to improve community services for older people?
The Government have announced the allocation of £100 million every year for three years from the NHS budget to social services to help fund this scheme. However, the total annual cost of 5,000 patients—the number currently involved in delayed discharges—is estimated to be £180 million. At worst, the scheme could become a perverse incentive so that delayed discharges from hospital do not become a priority to be tackled, particularly if partnerships within the NHS and local authorities break down. It may be more convenient to pay the fine and keep the patient in hospital rather than increase expensive home and community-based services in districts where older people form a substantial part of the population, as in Wirral.
Finally, I ask the Minister to make a statement about money generated by the scheme being used to improve services and equipment for older people in the community. I support the amendment moved by the noble Lord, Lord Clement-Jones.
4.1 p.m.
The Lord Bishop of Hereford: My Lords, parliamentarians usually express themselves in fairly measured terms—certainly in your Lordships' House—so it came as something of a surprise to me to discover just how outspoken some of the comments on this Bill had been in another place. In the course of the Second Reading debate there on 28th November, there was general acknowledgement that this Bill addressed a real and pressing problem of bed-blocking in acute hospital wards. I need to declare a non-direct interest as my wife is a non-executive director of an acute hospital trust. She knows all about blocked beds and the problems they create for the trust.
This is a serious and growing problem which exacerbates the related problem of waiting lists for elective surgery and medical treatment and adds to the periodic crises which arise in most acute hospitals over emergency admissions.
Everyone agrees that we need to solve the problem and everyone also agrees that a better and more harmonious partnership between the NHS and the
934
social services is not only highly desirable in itself but is essential if the bed-blocking problem is to be dealt with properly.
So what do we hear honourable Members saying in another place? It is,
"one of the worst Bills [in 30 years]. It is divisive and mean-spirited … It will poison the atmosphere between the two key organisations".—[Official Report, Commons, 28/11/02; col. 532.]
And:
"It punishes one group for the failure of others over whom they have no control. Of all new Labour's crazy ideas, this is the craziest".—[Official Report, Commons, 28/11/02; col. 519.]
Or:
"The wording of the Bill sounds like a fed-up parent mediating between two scrapping children … it is a strange sort of partnership where one partner is given a stick with which to beat the other. That sounds more like domestic violence than relationship building".—[Official Report, Commons, 28/11/02; col. 527.]
And that this is a Bill that is "fatally flawed" and is "bureaucratic madness".
I forbear to repeat the next quotation because I do not believe it is suitable for your Lordships to hear.
Honourable Members would say that, wouldn't they, because they were speaking from the Opposition and Liberal Democrat Benches in another place. However, sharp criticisms were also levelled at the Bill from the Government's own Benches. The Secretary of the Church of England Board for Social Responsibility has called it an "appalling Bill".
I have a strong sense of déjà vu. I am reminded of the Animal Health Bill. There was a real and acknowledged problem, but the Government tried to tackle it with a Bill that was provocative, punitive and divisive. Here, once again, we have a nasty little Bill which really ought to be stopped, but at the very least will need to be amended. Therefore, I gladly support the Motion in the name of the noble Lord, Lord Clement-Jones, regretting only that it did not go further. I would have been glad to see it echoing more fully the Early Day Motion put down on 5th December by Mr Paul Burstow in another place. I quote it because it seems to me to summarise ideally what is wrong with the Bill:
"That this House believes that the Community Care (Delayed Discharges etc.) Bill proposes simplistic measures that fail to address adequately a complex problem; further believes that the Bill treats a symptom rather than tackling the cause, which is a failure of successive governments to invest in community-based services to prevent admissions and support people after discharge; regrets that the Bill will undermine partnerships between health and social care; deplores the Bill's failure to take note of the needs of the patient or the concerns of the carers; believes that it will give rise to an increase in emergency readmissions of older people; notes with concern that the Bill will distort priorities for the care of the elderly and create perverse incentives by placing the need to hit delayed discharge targets ahead of offering timely and appropriate care to those in their own homes".
If the outspoken criticisms of the Bill that I have just quoted may be dismissed as coming from the fevered brains of party politicians, the chorus of condemnation from a very wide range of highly responsible professional organisations simply cannot be ignored.

935
The Association of Directors of Social Services, the NHS Confederation and the Local Government Association joined together to issue a statement. It states:
"Real progress has been made in forging partnerships between health and local government…It would be a retrograde step if the current proposals undermined the trust and led to the development of adversarial relationships rather than cooperation".
There is a clear implication that there is a serious danger of that happening if the Bill is passed.
The Royal College of Nursing remains unconvinced that charging social services for delayed discharges from hospitals will lead to better discharge practice. The British Medical Association is opposed to imposing immediate penalties on social service departments which have been faced with historical underfunding. The move could distort decisions taken by social services departments, influenced by the need to avoid fines, with funds diverted from "non-fineable" areas such as children's services and services for the disabled and people with learning difficulties. Therefore, the BMA is asking at least for some delay and for some kind of pilot scheme. It points to the real risk that money will be taken away from other areas simply to avoid the fines that will be imposed for social services not receiving patients discharged from hospital.
The BMA also points to a seldom-recognised aspect of early discharge simply to release blocked beds, which is that 17 per cent of elderly people currently living in nursing homes no longer need nursing care. The decision to admit to a nursing home may have been prematurely made before it was known how far rehabilitation could go. That argues for constant monitoring and review of what the needs of elderly people really are and for the provision of an adequate range of care home places offering a variety of levels of care.
It has already been pointed out that the statistics for the reduction in the number of such places in care homes are alarming. There was a rapid and fairly unplanned increase during the 1980s, but in recent years there have been dramatic reductions, including a net loss of what I calculate to be 12,800 places in 2001 alone—and that in the context of a rapidly growing population of old people. It is vital to see the whole picture. This Bill addresses one part of what is a huge problem with many interrelated issues.
Concentrating on delayed discharges avoids looking at the whole picture. It is as though we were looking at a jigsaw puzzle with various bits missing. The Government have found one piece of jigsaw which does not quite fit any of the gaps and they are pretending that forcing that piece into one of the holes will somehow do the job as a substitute for a painstaking and thorough organising of all the missing and misplaced pieces.
There are upstream and downstream questions. Why do so many old people go into hospital? It is frequently because of a serious lack of preventive care,
936
sometimes in the simplest areas; for example, a failure to ensure that they have adequate heating or a failure to reinstate presently non-existent home help services. Such services can do so much to keep people at home, stop them deteriorating in health and stop them reaching the point at which they have to be admitted. That kind of simple action could avoid admission to an acute ward.
There are downstream questions, too, about convalescence, follow-up, proper post-hospital care and the whole care pathway. In introducing the Bill, the Minister mentioned that and made some encouraging comments about an attempt to see a slightly wider picture. The trouble is that the Bill as it stands does nothing but address this one particular issue. Financial incentives to discharge people even sooner, in the absence of a total-care package, will add to the problems of readmissions. There were 500,000 readmissions in one single year. It is hardly believable. But if there is further pressure to discharge patients, how many more will there be? And what will that do to the people who are readmitted, having had a great deal more pain and anxiety meanwhile? It is medical and financial nonsense. Worst of all, it is pastorally insensitive and profoundly unkind. It ignores the real well-being of elderly people. As has already been said, it treats them as commodities and as financial liabilities to be shunted around. It is contemptuous of the interests of carers.
My Lords, there must be a warm welcome for the promise of better funding for social services and for the provisions of Clause 12 of this Bill. But it remains deeply unsatisfactory in its present form. It addresses one aspect of a hugely complicated area of care. As we have already heard, it derives, in part, from one aspect of Swedish practice, not fully understood nor related to its own context. It then parachutes this into the United Kingdom system, where, like a piece in a jigsaw puzzle, it just does not fit. Far from encouraging or enabling growth in co-operation and an harmonious partnership, which we all wish to see, it introduces a concept from the criminal law—the concept of the fine. It does not hold out the prospect of a better deal for vulnerable and anxious elderly people, whose needs deserve to be much more imaginatively and sympathetically met. It will encourage suspicion, hostility and confrontation from all the hard-pressed professionals having to cope with this on top of everything else.
I hope that there will be very strong support for the amendment in the name of the noble Lord, Lord Clement-Jones, and for further amendments which will be needed at Committee stage.
4.11 p.m.
Baroness Pitkeathley: My Lords, improving hospital discharge procedures has always been very close to my heart. In the mid-1970s I wrote a book entitled When I Went Home which detailed the experience of older people when they were discharged from acute wards. I well remember some of the experiences of those interviewed: "They only gave me 10 minutes' notice"; "They told me that I was fit to go

937
home but I knew I wasn't and was back in two days"; "They left me at the gate in a snowstorm", are some of the more memorable comments that I remember from that book.
Over the years I have revisited those experiences, especially in my work with carers, and the story has been depressingly familiar: lack of notice, lack of planning, no consultation with either patients or their families, lack of communication with general practitioners and, above all, the lack of a co-ordinated approach between health and social services. Furthermore, we are all aware of the very distressing number of readmissions that take place because discharge was not properly planned.
The solutions which everyone has agreed upon over the years have also been depressingly familiar, and we have never had any problems agreeing on them: discharge planning must start on or before admissions, the needs of both carers and patients must be properly assessed, information must be exchanged in good time and communication between agencies is vital.
It is my impression and that of many other people, too, I believe, that things have got better in recent years. I speak here not only as a professional but also as a long-term patient on an acute ward. I do believe that some improvements have been made. With the advent of computer-held patient records, it is now common to consider the discharge plan when the patient is being admitted. That would have been unheard of hitherto. The much quoted Berlin Wall which always existed between the NHS and social services departments is, in many areas, a thing of the past. Pooled budgets and agreed care packages have gained momentum. Integrated care trusts are another very helpful development.
Clearly, there are still some consultants who swoop down on a ward on a Friday afternoon and declare the patient not only fit but essential for discharge. However they are very many fewer than they used to be. I am particularly glad to note that the discharge workbook about which I have been asking for some time, has now been updated and reissued today. The Government are to be congratulated on that.
However, there are still some pockets of resistance to proper discharge planning. There are, we know, some 5,000 patients occupying hospital beds when they should be discharged to more suitable care. I am in favour of anything which tackles that. I say that not from the point of view of saving money for either the NHS or local authorities, but because I know only too well how easy it is to become institutionalised in a hospital bed. It is tempting for any person, old or young—and I speak from personal experience—to settle back into that hospital bed and that hospital routine. They then lose, in an amazingly short time—amazingly short—the ability to manage outside in a setting which will enable independence not dependence.
So I do not start from the premise that the Bill is necessarily bad. Indeed, I find elements in it to praise. Your Lordships will not be surprised to know that some of these concern carers. The original drafting of
938
the Bill left out any mention of carers. That was of grave concern to Carers UK as research has shown many times, that carers bear the brunt of poor hospital discharge procedures. The issue was consistently raised with the Government and on Report in another place the Government amended the Bill in two vital ways. Part 1 was amended to improve carers' rights upon hospital discharge so that they are assessed if they ask, and carers' services, needed to ensure the patient is safe for discharge, are put in place be fore discharge.
Part 2 was also amended to ensure that, following discharge, certain carer services would be free of charge for a limited period of time, in the same way as disabled and older people's services would be free. Carers UK has warmly welcomed these amendments. They not only improve the rights of carers, but move closer towards ensuring that carers are an integral part, rather than an ignored part, of the hospital discharge process. I should like to pay tribute to the officers and Ministers who worked so hard on these amendments.
The amendments are an important step forward towards ensuring that the assessment is holistic, both in looking at the needs of the disabled or older person, and the carer. They should ensure that carers are assessed quickly at the right time; that their needs for services are considered; and—this is an important development—that services are put in place before discharge. The original drafting of the Bill omitted any reference to carers' services but we very much welcome the amendments which now ensure that certain community care services provided following discharge will be made free for a limited period of time. I am sure that your Lordships will agree that that is essential since carers already save the state an estimated £57 billion annually.
I want also to celebrate the acknowledgement that has been given to the great improvements which have been made in the relationship between the NHS and social services in recent years. I believe that that relationship has been transformed in terms of understanding and co-operation. It is entirely because of those improved relationships that this Bill will apply, we are assured, to so few people. Commitment and partnership working, which these agencies have shown, is very much to be praised.
I turn now to my concerns about the Bill which I want not only to flag up but to suggest ways in which they could be overcome. My first concern, as many other noble Lords have said, is that the Bill may have the effect of influencing negatively the very much improved relationship between health and social services which I have just welcomed. I know that that is not the Government's intention, but I am concerned lest it happen by default.
Secondly, there may not be enough choice for older people and families at a very important point in their lives because the timescale suggested is so short. I understand the reasons for this but I worry that unsuitable decisions will be made simply because of the short timescale.

939
That also links with my concerns about the outstanding issues for carers. As carers still have to ask for an assessment, with the exception of those who requested an assessment in the previous 12 months, they will need to know their rights before they can exercise them. Legislation in Scotland and Northern Ireland has placed a duty on local authorities and health trusts to inform carers of their right to an assessment. I believe it is vital to ensure that carers are aware of their rights. I hope that the Minister will be able to acknowledge that making carers aware of their rights is part of the Government's intention.
My concerns could be addressed by placing more emphasis on the fact that this is an NHS as well as a local authority problem. Again, I know that it is not the Government's intention to say that. But the presentation of the Bill thus far has been unfortunate and I am glad to hear the Minister's reassurance that it is a mutual problem. If we emphasise that, it will go a long way towards continuing the development of the co-operation which is now so excellent in many areas, while encouraging areas in which it is not so good to tackle what should be seen as a mutual problem. I certainly do not wish to see the fining element become a cause of suspicion and lack of trust between agencies.
In that regard, increased budgets for social services departments are especially welcome. We must monitor very carefully how the money is spent. We must ensure that it is spent on discharge services and not on extra bureaucracy, a risk run by any new system. Of course we need good systems of paperwork—or, more likely, better computer communication—between agencies, but we must ensure that the money is spent on services which will benefit patients and carers. Of course more money may be spent on residential care places, thus increasing supply and choice for older people, but it must also be spent on innovative services provided in the home.
As to carers, I am particularly concerned lest the fines reduce the funds available for other community care services. In areas where hospital discharge practices are poor, local authorities might be tempted to cut corners in order to avoid fines, with disastrous results for carers should that happen.
I am also concerned about the way in which patients and carers will be able to make complaints. It is important that the principle of patient and carer participation is carried through. The success of the Bill must be judged not by the experience of the provider but by the experience of the receiver of care. We must monitor extremely carefully the timescale and what can be expected within it. Patients must be at the centre. Can that be ensured within three days? I should like to be reassured about what exceptions to the three-day rule will be acceptable. I understand that a panel will be established in each strategic health authority area. How will fast tracking of complaints be carried forward? I hope that the Minister can assure me about that.
Finally, I should like to be reassured about readmissions and how they will be monitored. If too many result from these new proposals, the
940
Government must be prepared to modify them. We must never forget that successful discharge—and I mean successful from the patients' and carers' point of view—depends not on systems but on relationships, in which co-operation and communication are of the essence. If the Bill helps in that respect, all well and good, I shall not support the amendment of the noble Lord, Lord Clement-Jones; but if monitoring shows that the Bill is hindering relationships, we must be prepared to review the policy.
4.23 p.m.
Lord Bradshaw: My Lords, I shall speak to the problem from the point of view of a county council. I declare an interest as a member of Oxfordshire County Council.
The plain fact is that we cannot recruit people to give home personal care. For example, in Henley we paid £6 per hour—the national rate—for the provision of such services. This rate has recently been revised to £6.35 by direction of the director of social services. But people in Henley demand £10 per hour to clean middle-class homes and, given the choice between cleaning middle-class homes and providing personal care to an elderly person, I am sorry to say that most people will go and clean middle-class homes.
In north Oxfordshire, we have about 13 people waiting for every home care place. We have done our very best to provide more home care places—one centre is being built by the St John Ambulance care trust in my own town for 60 old people, including the nursing care which is now essential in an old persons' home—but there is an enormous gap in the finances between what is received by the county and what has to be spent. In the year about to end, we have spent £105 million, and yet the SSA applicable for this year was £85 million. Therefore £20 million was required from the general rate account. Because of the extra money flowing through this year the difference will be less, but there will still be a substantial gap between what we believe we have to spend and what the Government believe we should spend. That causes enormous problems in providing the kind of services referred to by the noble Baroness, Lady Pitkeathley.
If carers are to receive the kind of help they require to provide services to old people, the local authority must have the resources to pay for it. Those resources are not available. This year there will be a Band B council tax rise of 13.7 per cent—a lot of money—which I am sure many elderly people will have difficulty in paying. A large proportion of that money will be going into social services because we are trying desperately to meet the targets laid upon us—an uphill battle which will not be helped by the Bill at a time when co-operation between the National Health Service and social services is beginning to bear fruit.
While £100 million extra may sound like a lot of money, by the time it is divided up our share will be small and will take time to pass through the system. It has taken nearly three years to build an old people's home, which is quite quick. We have followed the advice of the Government in terms of harnessing the

941
private sector into the process, so it is not a question of ignoring advice. We have appointed a new director of social services to bring fresh energy into the process, but we keep coming up against nasty phrases such as "tightening the eligibility criteria for home help". In plain language that means "You do not get it", although it does not sound like that when you use fancy words to describe it.
I shall not speak for long, but I plead with the Minister not to go ahead with implementation in 2003. We need to see the benefits of the extra money working through into the system now that we can at last see the development of serious co-operative relationships, not the kind of antipathetic relationships that will be created.
We do not have the infrastructure in the county to manage these enormous problems. My county is a nice place in which to retire, which means that it contains an enormous number of elderly people. My own town is very popular for building the kind of residences to which old people are attracted, but it is the council which will be left to care for them. I ask the Minister to think very carefully about the impact of the proposed legislation on social services. They are trying to do a good job but find that the goalposts are ever being moved further away.
4.28 p.m.
Baroness Greengross: My Lords, poor and inefficient discharge procedures for elderly people have been a festering sore for more years than I care to remember. In the 1970s, I was involved, as was the noble Baroness, Lady Pitkeathley, when an admirable woman, Geraldine Amos, from Birmingham, led a campaign to end poor and delayed discharge practice. The organisation with which I work, Age Concern, was involved in many hospital discharge schemes, as was the Red Cross and other voluntary organisations.
I set out my views and my concerns in the debate on the Queen's Speech. I am still concerned, but I support the Government's aim to try at last to get this matter right. I recognise the important improvement in relationships between health and social services in the past few years. The Government recognise that they have to balance the equation, as the Minister described, by preventing hospitals from discharging patients prematurely. I would like more details about the extent of the tough approach towards the NHS, which the Minister mentioned. The Government need to publicly demonstrate their commitment to fair play and an even playing field between health and social services. They need to demonstrate as well that it is part of a wider and comprehensive reform which includes the free aids and adaptations covered by Part 2 of the Bill and more money for intermediate care and social care announced last year.
Efforts should be made to gain higher status for people working in community care, which I am sure will emerge eventually as the National Care Standards Commission does its work. But we are talking about the problems which exist now. Can the Minister further clarify what those free aids and adaptations
942
will be? Will they be available to adapt people's homes as well as help mobility? Will there be sufficient equipment available? I acknowledge the important amendments made in another place. I support strongly what the noble Baroness, Lady Pitkeathley, said about the work of carers and their right to be assessed.
I shall give three examples of cases which have come to my attention in the past couple of months. The first concerns an elderly gentleman who was delayed for discharge over Christmas and the new year. Nothing was in place until mid-January when his health had greatly deteriorated. He was sent home. That was a relatively straightforward case, but it revealed enormous complexities. It was a nightmare for everyone directly involved.
My second example shows how the use of agencies contracted by social services needs to be looked at because of the importance of social care standards. There is a need to raise competence; otherwise, as we know, it leads to emergency re-admission. Polly Toynbee's articles over the past few weeks show how care workers are very much undervalued and underpaid. That is an importance point which we need to take into account.
The third example involves a person discharged one day after it was decided that she needed a place in a nursing home but before that place had been found. That was not entirely the fault of the social services department. The problem needs to be properly looked at so that procedures can be genuinely improved.
Those cases demonstrate that hospital discharge is a shared responsibility including extra care housing options and nursing home placements, not just domiciliary care. All sectors are involved, including the private and voluntary sectors. The key point is flexibility of approach. It is not always possible for a person to be rehabilitated and to cope at home after six weeks. For people who have had strokes it can certainly take longer. That is the maximum period for intermediate care and for the free aids and adaptations. We must have greater flexibility than that.
Schemes which encourage a convalescent period are very valuable. I hope that the Bill will encourage more of that type of intermediate care. There are some wonderful schemes, not just here, but in Europe. They involve flats where husband and wife can work together to develop new skills because a person needs to be rehabilitated slowly and with care.
Best practice must be shared much more. We must not re-invent the wheel. Many organisations, including Age Concern England and the Local Government Association—I am vice-president of both—have very deep reservations about the date of implementation. I ask the Minister to reassure us that there is enough time for the new social care arrangements and intermediate care schemes to be set up. Has the National Care Standards Commission yet had the impact it needs to raise standards?
It has been suggested that the Bill could be delayed. Can we ensure that any "directions" to the NHS and its robust procedures are speeded up so that both are

943
better synchronised? One possibility is that instead of waiting a full year to introduce this measure there is a compromise of six months so that the NHS procedures can be brought in a little earlier and the local government measures delayed, each by six months, so that they are introduced together. That might help. These are very deep concerns which must be taken seriously.
I have other points for clarification, which I hope the Minister can answer. There has been mention of the danger of perverse incentives by the noble Lord, Lord Clement-Jones. A GP might well admit a patient into acute care to get social care packages quicker. The dispute mechanism could be used as a delaying tool because people will be desperate to find ways round the procedure if it is not properly introduced. We know that it is based on an apparently admirable Swedish model, but as we do not have unified health, social care and housing services we ought to consider in the longer term whether these should be brought together. That is a bigger question than this Bill can deal with.
Extra money is always welcome, but can the Minister clarify how much it is, for what and for how long? We also need to know the cost. I understood that the figure was £100 million, but the estimated cost is said to be £180 million. Is there some clarification which would help me in understanding this matter?
Are we certain that the older person's and the carer's consent are always sought on the care plan and for bringing social services into the equation? It is essential that watertight monitoring is carried out on readmission rates; otherwise we shall be unable to tell whether the Bill has worked. I plead for this detailed information to be on the Department of Health's website in full.
I share the regrets of the noble Lord, Lord Clement-Jones, but I shall give the ill my support if the Government can clarify the points I have raised and reassure me it will make life better for a group of very vulnerable older people. I am totally committed to that goal.
4.37 p.m.
Lord Rix: My Lords, I begin by declaring a personal interest in that today I entered my 80th year, so this Bill is of some considerable interest.
While I have much sympathy with the amendment moved by the noble Lord, Lord Clement-Jones, and its truncated clone proffered by the noble Earl, Lord Howe, I believe that their Bill blocking, to coin a phrase, is perhaps regrettable for the basis of this Bill does address in rather crude terms an extremely worrying problem. Surely, it would be better to live up to all the claims that we made in your Lordships' House last week, that we are brilliant at revision, and ensure through persuasion, debate and sheer common sense, that a thoroughly amended Bill, humane and meaningful, agreed by all noble Lords, returns to another place for its final approval.
944
At least this Bill sets us somewhat unsteadily on our starting blocks. Let the starting pistol be fired as long as we are not arrested under new firearms legislation and let the reformers be the winners.
I now offer my initial contribution with some hesitation. I want, somewhat predictably, to speak as president of Mencap and focus on people with a learning disability. I am sure that I would be ruled out of order if I succumbed to the temptation to link the purpose of this Bill to those of the White Paper, Valuing People, in seeking to rescue people with a learning disability from long-stay hospitals in which about 1,000 of them still live. So with Lent and resisting temptation looming up, the concept of financial incentives to secure homes in the community for people who have spent a lifetime in hospital, before they die, does appeal to me.
But this Bill is not just about older people stuck chronically in an acute hospital. It is about people with a learning disability, younger or older, in the same position. Some hospitals support them very well. I know from personal experience that others struggle: a few hardly try. A busy hospital ward is not a good living environment, at the best of times—most of us want to get up and go home. If you do not know what is going on and you have difficulty communicating with others, and they with you, it is, of course, much worse.
I share the Government's desire that nobody should stay in hospital longer than necessary and should be able to go home—whether home is the family home, a residential home or supported living. But going home must be planned and supported, and it must be going home to live—not going home to struggle and to suffer. Moreover, it should not mean being dumped inappropriately in a nursing home. In short, I am concerned that a policy designed to improve things might inadvertently make them much worse. I commend the care programme approach in its new—how I loathe this phrase—person-centred planning guise in which the individual is consulted, those close to them are consulted, personal wishes are respected and support, accommodation and back-up are all planned.
Sadly, people with a learning disability who have a longish spell of hospitalisation face an increased risk of not going back to their own home, because their family can no longer cope, their residential home is reluctant to provide increased support or their supported housing is not geared up to providing enhanced support.
Fining social services does not and cannot provide an adequate solution if it means rushing into a nursing home place where the person is going to be even more unhappy, and stuck indefinitely. We want planned and tailor-made solutions as a result of this increased financial investment, and a place in the community, not a place in a small institution.
If we are to secure the principles of choice, rights, independence and inclusion, as set out in the White Paper, Valuing People, we need to ensure that choice is not replaced by expediency. The Government have

945
committed themselves to improving the quality and choice of housing available to all, including people with a learning disability. That means investing in housing and in support on a much greater scale than anything we have either had or been promised so far. The Bill, as it stands, does not, of course, address these issues—but I trust that, in the near future, the Government will.
4.42 p.m.
Baroness Wilkins: My Lords, being unable to leave hospital because there is nowhere else that can meet your needs is a miserable fate. It is one that I have been too close to not to welcome the Government's determination to take effective action on the problem of delayed discharge. For far too long, this has been an area in which older people and disabled people have been particularly vulnerable to the boundary disputes between health and social services.
The Government should be commended on the many broad-ranging measures that they have put in place to encourage health and social services to work together to provide "seamless care". Measures such as the new flexihilities empowered by the Health Act 1999, with its pooling of budgets for agreed projects, the ability to delegate responsibilities to a lead commissioner working on behalf of both agencies and the possibility of integrating NHS and social services staff are all leading to far more effective forms of local partnership.
The working through of the national service framework for older people's standards of care, with the emphasis on integration and prevention—including a single assessment process and the promotion of intermediate care—also challenge local health and social services authorities to work together. Furthermore, the Department of Health's joint health and social care unit is actively promoting "whole system working" throughout the country. That directly encourages local partnerships to focus on hospital discharge, supported by the new manual of discharge practice, and intermediate care and extra-care housing.
However, I join with other noble Lords in serious concern that all this positive activity to encourage joint working could be seriously jeopardised by the Bill's precipitate imposition of fines for delayed discharge. I ask the Minister to think again and delay the date of implementation for at least a year after the proposed date of April 2003.
Surely it would be more effective if the Bill could be seen as a warning shot across the bows of under-performing local authorities. If the implementation of sanctions were delayed for a year, it would give time for the new resources given to social services to be used to good effect in developing alternatives to hospital care. It would also give notice to the under-performing authorities to match the example of those where the complex issues of hospital discharge of older and disabled people have been tackled successfully.
There are many factors involved in the reasons for delayed discharge. The lack of alternative facilities such as nursing homes, convalescent homes and
946
intermediate care settings come first to mind. But they take time to develop and that gives strength to the argument that there should be a delay in the implementation of the Bill and its imposition of fines.
The vast majority of older and disabled people are, however, discharged to their own home and that is what they prefer. Ensuring that those homes are fit and adapted can contribute to fast and efficient discharge, as well as enabling people to live independently.
I argue that the housing dimension needs far greater attention than it receives in the Bill. Home improvement agencies and other service providers have developed fast, effective, small repairs and adaptations services which help to improve discharge arrangements and reduce the risk of hospital admission. The following example, taken from On the Mend, the 2002 publication of Care & Repair England, demonstrates how essential it is that local authorities and health bodies should incorporate housing in the discharge process. It says:
"Mr Watt is a private tenant. He was unable to be discharged from hospital because his landlord refused to mend a dangerously broken banister. Discharge was delayed for 6 weeks whilst both social services and the health sector solicitors were involved in negotiations with the landlord's solicitor. The hospital discharge service was approached and they immediately sent in the handyperson (acting upon Mr Watt's instruction) and the banister was repaired within hours, enabling Mr Watt to return home immediately".
It is where the local housing authority, social services and the health authority all work together and each allocates resources for hospital discharge repair and adaptation costs that the most effective hospital discharge services can be established.
Bristol's rapid response hospital discharge service is an excellent example. The social services department provides the home improvement agency, Care & Repair England, with a budget for small adaptations; the housing authority makes available a ring-fenced home repairs assistance grant budget—operated on a fast-track system for hospital discharge cases—and the health authority co-funds a handyperson service. Consequently, many repair and adaptation jobs are completed within 24 hours and the majority are done within a week. As a result, a very small urgent response team manages the interventions and repairs needed for some 500 older and disabled people to return to their own homes from hospital each year.
It is schemes such as these which need to be replicated throughout the country. Paying attention to the housing dimension is vital if delays in hospital discharge are to be diminished. The Bill puts notice on health and local authorities to put services for effective hospital discharge high on the agenda. However, it would be a tragedy, as many noble Lords have said, if the precipitate time scale in the Bill for the imposition of fines resulted in jeopardising all the excellent work that is taking place.
The Government can take pride in their determination to improve joint working and to end the disgrace of disabled and elderly people being buffeted between authorities, having their needs ignored while the authorities fight interminable turf wars. I hope that

947
the Government will heed the concerns expressed from all sides and that the Minister will be able to see a way to delay the imposition of fines for at least a year.
4.49 p.m.
Baroness Maddock: My Lords, I share many of the concerns about the Bill outlined by noble Lords this afternoon and, of course, support my noble friend Lord Clement-Jones in his amendment. I wish that I could share the optimism of the noble Lord, Lord Rix, that what we say in this House will have a big effect on what happens in another place.
The right reverend Prelate the Bishop of Hereford said that this was only part of a jigsaw. My contribution forms a piece of that jigsaw and concerns the role that the condition of housing plays in the area of delayed discharges. That matter was described eloquently by the noble Baroness, Lady Wilkins, and forms part of a much wider connection between the condition of our housing and the health of our nation.
Money must go into improving homes if we are to change the health of the nation. I declare an interest in that I am associated with many housing bodies, particularly the National Home Improvement Council. There is a great deal of evidence that putting money into home improvement is an extremely cost-effective way of enabling many patients to return home quicker. The Joseph Rowntree Foundation, which is well-known to many noble Lords, has researched this matter. It reached the conclusion that minor adaptations produce a range of lasting, positive consequences for virtually all recipients and that they constitute value for money.
As other noble Lords have outlined, the installation of aids and adaptations can cause particular problems for people who are waiting to leave hospital. The legal and financial framework for the provision of such adaptations is complex. Often, reaching agreement on the assessment of what a person needs and where the money will come from takes an interminable time and adds to the slowness of discharge.
I refer to the scale of the problem of unfit housing in this country. There are 1.5 million unfit homes in the UK: that is, one home in every 16. The majority of those unfit homes are owner occupied. Some 75 per cent of the people living on the lowest incomes and in the worst housing are of pensionable age and 1.7 million people need adaptations within their homes. The tendency to live in poor housing conditions increases as people get older, particularly after the age of 80. Lone older women are more likely to live in unfit housing.
A proportion of the finance for dealing with home improvements comes mainly from local authorities—the very same local authorities in many cases which will see money taken away from them if the Bill is enacted. The sums spent in this area have diminished over a number of years now. Admittedly, the Government recently freed up the way in which local authorities can tackle home improvements by allowing them to allocate grants. However, the overall spend is still very low. The Minister did not mention that
948
matter in his opening remarks although one of my colleagues searched the relevant website and found a brief reference to housing and the major repairs that are needed.
How can we improve the situation? Obviously, policy making on health and housing needs to be linked up and requires appropriate funding. We do not want money to be taken away from local authorities. The good, joined-up work that is undertaken between health authorities and local authorities needs to continue. The noble Baroness, Lady Wilkins, mentioned some good examples of that. I shall mention others later.
I am sure that the Minister is fully aware of, and has been well briefed on, the work of Care & Repair England in the field that I am discussing. I hope that he can reassure me that priority for financial support will be given to such bodies and to other home improvement agencies that are involved in this area. I draw his attention to a point that has already been mentioned this afternoon; that is, the role of prevention, particularly as regards handyperson schemes, of which there are many around the country. Such schemes are particularly important in terms of preventing people entering hospital. West Devon has a very good handyperson scheme for elderly people to replace light bulbs, fit door chains, repair rotten window frames, rehang doors and put up shelves and pictures. Those involved in the scheme get up ladders and carry out the kind of jobs that can result in elderly people falling in their homes.
I hope that the Minister will reassure us that priority will be given to preventive work. As I said, much of Britain's housing is old and poor. Many people end up in hospital as a result of falls or because their homes are cold. Cold homes have been mentioned briefly. In this country many winter deaths and many winter illnesses are still caused simply because people cannot keep warm in their own homes. I hope that the Minister will mention that point when he replies to the debate.
Handyperson schemes have made a big difference in some areas. In the On the Mend document, Care & Repair England refers to the case study of Mrs Long. The document states:
"Mrs Long is 78 years old and lives alone in her own home. She was referred to the home from hospital service by the hospital social worker and OT who were concerned about the difficulty Mrs Long was having in getting up and down stairs. A second stair rail was installed by the project technician within 3 days of referral. When the caseworker visited she realised that Mrs Long's gas fire had been disconnected following a safety check. Funding applications were made to a number of charities and the money raised to repair and reconnect the fire. A successful claim for attendance allowance was also made".
I refer also to the connection that was made with Sweden. I lived in Sweden some 30 years ago. The standard of housing in Sweden is much higher than that in this country, and was 30 years ago. No one in a hospital in Sweden will have a discharge delayed due to the condition of his or her home or because they cannot keep warm in it. Noble Lords have said that the

949
proposals in the Bill are based on the system adopted in Sweden and that we should study carefully the situation in Sweden and that in this country.
Will the Minister assure me that best practice will be drawn up with regard to partnership schemes and delayed discharge? I could not find any mention of that in the Bill. Perhaps it is the Government's intention to provide best practice recommendations in guidance notes or secondary legislation. Local authorities, which are so often partners in such schemes, will have less money to spend working with others on the kind of issues that I and others have highlighted today. There is a better way to provide the mechanism and funding to assist the work that I have outlined and it does not involve starving local authorities of much needed money.
I hope that the health Minister will put the case for improving housing to the Office of the Deputy Prime Minister as such a measure would certainly save his ministry much money. If he wonders from where to obtain the necessary funds, I suggest that he talks to the Chancellor about the £6 billion extra that the Government have received since they came to office in stamp duty due to rising house prices. A very small amount of that money would go a long way to improving the condition of housing and our nation's health. As I said, we are talking about just a small part of the jigsaw. However, I believe that it is an important part that has long been undervalued in our country.
4.59 p.m.
Baroness Howarth of Breckland: My Lords, I declare an interest as a professional social worker and an associate member of the Association of Directors of Social Services. I have links with the board of the National Care Standards Commission. I do not speak on behalf of any of those bodies but, obviously, those interests clearly influence the way I view this issue.
It seems that the Government have made a distinctive impact on services in health and welfare since coming into office. In recent years, they have revolutionised relationships with professionals in the caring sector, which in my working life had reached an all-time low. They have developed an image of being a listening Administration, and were recently praised by Care and Health Magazine, which said:
"The present government has shown a real desire to take the level of professionalism higher in social care and make the delivery of services more client-centred…One notable feature of this approach is that the level of consultation with professionals and service users has sharply increased…For the first time we all have a voice in the changing landscape of social care".
As that commentator points out, the response from the Government is not necessarily a response to majority views, and that is right. However, there are many including me who hope that, as we progress through the Bill, the Government will listen to the voices asking them to think again about much of the proposed legislation.
The principle and aim are splendid: the timely move of people out of hospital into alternative care, either at home or elsewhere, following proper assessment and planning. I welcome the thought that we will have
950
more than two days' notice. Like the noble Baroness, Lady Pitkeathley, as a social worker I have faced having to move people very quickly, but replacing two days with fines is hardly an equal-handed measure.
Through that process, hospital beds will be freed up for patients on waiting lists, which meets another government target. However, that is to be achieved by a very curious mechanism, which appears to penalise one part of a complex system without consideration of the whole. I had thought that the Government had started to think in terms of framework and strategic systems.
Of course, there remains a conceptual problem. Are the fines for social services failure, or do they, as a Minister put it in another place, simply ensure "appropriate financial flows" between services? Are they incentives, reimbursements or just plain fines? That is curiously important for local authorities. The Minister has spoken positively about local government throughout my time in the House, but the device in the Bill will further bring down the feeling among local authorities about how the Government perceive what they are trying to do in very difficult circumstances.
Those on the ground working to implement the policy day-to-day know how complex the system and the decisions can be. Most, if not all, want to provide the best service possible to the user. 'Will the listening Government hear the objections raised by those who see the implications for the whole system of care?
During the consultation, it was not only social services that saw flaws in the proposals. Other noble Lords have mentioned the BMA and the Royal College of Nursing. Both indicated that a scheme that penalises one partner can only damage relationships with the others. Partnerships and joint planning, under government guidance and encouragement, have been steadily improving. There will be a very heavy spanner in the works.
If users are central to the thinking, what has happened to the question of choice? When the clock starts ticking on the day that the hospital notifies social services, I fear that all sensitivity will disappear. Where assessment indicates the need for a complex package of care, two days is simply not enough to put the services into place. Instead, between the pressure of targets on the one hand and fines on the other, it would be a case of finding an alternative place.
I can think back to the days when we had to find placements for children in care under fit person orders, and sat in waiting rooms with poor children. I can see how old people and people moving out of acute care from other groups will be placed in real difficulty. If people rather than systems are at the centre of government thinking, I am sure that the Government will listen to the carers' organisations, which relate that 77 per cent of carers—that is a figure for now, not for the past—were not given a choice about taking on caring.

951
When those assessed are old and frail, recovering from a serious illness or facing a future of disability, preparing for that requires time and sensitivity. As we have heard time and again this afternoon, proper planning will avoid readmission, a real and continuing problem in healthcare. What happens if, despite assessment, the patient exercises his or her choice not to accept what is on offer? Delay can arise from a patient genuinely disputing the suitability of an offered placement, possibly through a complaints procedure or judicial review. If the preferred service is not available, will users be forced into the next available slot? Will someone have time to listen and discuss alternatives? Will the clock stop ticking while the reassessment takes place?
As we heard from the noble Lord, Lord Bradshaw, the measures will increase pressure on social services already struggling with problems of capacity. That is not an excuse. However much funding the Government make available—I am sure that every pound is more than welcome—providers know that it takes time to build up alternatives decimated by years of cuts. Capital and revenue projects are affected. Shortage of placements in residential care, and workforce planning problems run throughout the system. Noble Lords have only to read the two recent and powerful reports from the King's Fund, which demonstrate the shortage of skilled workers in residential and domiciliary care. Even without the device in the Bill, that shortage is likely to lead to a crisis, so strategic planning is needed.
Add to that the need for good social work assessment and the problems are compounded. If social services are to meet the assessment timescales to respond to the ticking clock, will social workers be diverted from other areas of social work—from mental health, family support and, most worrying, child protection? Home care is already in crisis. I can tell noble Lords of dozens of old people whom I have met who need only two or three hours, but that time is not available.
I know at first hand what happens when pressure is placed on one part of the system and there is a shortage of capacity in the whole. Something else gives. Next week, when we discuss the Climbié report, we will want to put pressure on yet another part of the system. What else will give?
If the Government take a strategic view, will they also look at the role of the voluntary sector and the problems that it faces in supporting provision of good-quality alternatives? I have campaigned for most of my working life to remove adult disabled people from inappropriate hospital placements, but there are still difficulties. For instance, the problem of agreeing appropriate fees for residents has been well documented, but still needs addressing.
As vice-chair of John Grooms, a charity providing services including cutting-edge residential care for severely disabled people, I am totally disheartened not only by the issues of appropriate fees and raising money to subsidise both capital and revenue projects,
952
but by new legislation about staff pensions, plus the most unbelievable issues about rate disaggregation. Those are real disincentives. Such issues conspire to put voluntary organisations out of business, rather than working in partnership with them to provide even better alternatives for people who need residential care.
Were there more time, I would want to raise issues regarding the dispute panels. Surely the make-up of such panels, if we are to have them, should not be left to draft regulations. Some even-handedness of representation should be placed in statute.
I welcome the introduction of free aids and minor adaptations, but wish to ask questions about funding and assessment. The noble Lord, Lord Clement-Jones, pointed out that one of the skills shortages was in occupational therapy. The key is that there needs to be more discussion on timing, and questions should be asked as to why the statute cannot wait for better overall planning when it becomes extended to other areas such as mental health.
There are financial questions to explore. The London project on the commissioning of services for older people has worked with London directors of social services to monitor the delayed transfer of care data. It estimates that, at current levels of delay, the potential reimbursement fine for London alone is approximately £24 million. How will that central pot be redistributed?
I have read the arguments and thought carefully about the Bill, but I still cannot understand how, at a time of improving relationships and response, the Government still see a financial penalty as the only means of achieving proper performance from local authorities. With the frameworks, including that for older people, a whole strategy is being developed in the interests of users which gives a sense of value to professionals. This is a mature approach. In such a climate, where there is a complex matrix of service provision, which government adviser could be so ill advised as to see this arrangement as the best way forward? It might move people around the system faster but if my mother was involved, I should certainly want to have the time and space in which to plan for her care, to listen as she moved from independence to dependence and to know that physical and emotional needs had been taken care of for the future.
I realise that this approach is government policy and that we in this House are not here to frustrate it. However, I hope that we can ensure that the arrangement will work for those using the system of care and that it does not create a way of moving funds from the welfare sector to the acute sector when there is no real improvement for people. For it is people who should be at the centre of what we are trying to do, not simple mechanisms for shortening waiting lists. I will therefore support the amendment of the noble Lord, Lord Clement-Jones, but I want to hear what the Government have to say and how they intend to take the thinking forward.
5.11 p.m.
Lord Beaumont of Whitley: My Lords, we spent two days last week discussing various matters involving your Lordships' House. One of the points that came out most strongly was the importance of expertise. In this debate, we have had an immense amount of expertise; practically every speaker has displayed it. I must apologise for not having any particular expertise although, like one or two speakers so far, including the noble Lord, Lord Rix, I have, at this time of life, reached the stage at which quite a lot of my friends and people with whom I have worked over a period of time are running into the kind of problems with which the Bill is meant to deal. I am for ever fascinated and appalled by the difference between the way in which people cope if they are well off as opposed to if they have very little or virtually no money.
Every noble Lord seems to agree that this is a Bill of good intentions, that what it seeks to achieve is worth achieving, and that those behind it should be congratulated on trying to achieve that. There is also a widespread feeling that it is not going the right way about it. If we are to put the people who really matter and should be looked after at the centre of these arrangements—if we are to look after the carers, the old, those who are ill and those who have been discharged—and if we are to give them control over their lives, we must ensure that the Bill is changed significantly.
I do not wish to detain the House by dealing with various points that have been dealt with in this debate by noble Lords with more expertise than I have. However, of all the points that have been raised, the three-day allowance for coming to an arrangement about what should happen is so imbecilic as to be almost unbelievable, it do not see how anyone can think that one could achieve such a target even al the best of times. That must be altered.
I have been briefed, as have one or two other noble Lords, by the National Federation of Post Office and BT Pensioners, which sees that its members will be hardest hit by the Bill if it is not amended. It has produced a number of amendments, which I hope I shall advance in Committee. I hope that I shall do so with the support of other noble Lords, and I hope to support them.
I opened by saying that I thought that one thing about the Bill was agreed by everyone: this is a Bill of good intentions. However, we all know what good intentions do: they pave the road to hell. In the worst cases—there are always worst cases—the authorities do not agree, there is not enough time to consult patients, and there are not sufficient places for people to go. We should also consider what will happen to a person with little money and who feels rather ill, having just come out of hospital. The good intentions could well lead to something that can be described as closely resembling hell for those people. For that reason, I intend to support on behalf of my party the amendment of the noble Lord, Lord Clement-Jones, and the approach of the noble Earl, Lord Howe. I hope that we will manage to make the Bill a far, far better thing by the time that we have finished with it.
5.17 p.m.
Baroness Howells of St Davids: My Lords, at this stage, every side of the argument has been put. Having recently become a carer, I have been a recipient of the very service that the Bill seeks to address. I speak with the voice of the consumer and welcome the Bill's passage though the House. The Bill is a package which, with a very few minor adjustments, will work.
The requirement for a written discharge plan is reassuring for the patient and the family. That is vital so that all concerned with the welfare of the patient can be satisfied that all that can be done is in place for the continued care of the patient on leaving hospital. In my case, the written discharge plan was not available because the computer had broken down. That caused me, as a carer, no end of problems. Every family member had a different solution and no one from the NHS was available to answer my very legitimate queries. I shudder to think how those who are in my position but who are less able than me to contact the director of social services would have managed. It was a nightmare and I hope that the Bill will ensure that no one ever gets into the position in which I found myself.
Having contacted social services, the patient—my husband, whom I was removing from hospital on that day—became less fragile when he realised that things could improve. Two days later, after several phone calls and not very pretty language, everything was arranged and has been working satisfactorily ever since. He is now 12 weeks into his care.
That illustrates how well a plan that is put in motion can work if we are patient and give it time. I was pleased to hear the Minister say that social services are not the only authority to be penalised. My experience was that the plan was not in place because the NHS was not able to set it in motion at the time that my husband was expected to leave hospital. That was not because the staff did not know when he would leave but because no one in the hospital was responsible for ensuring that social services would be contacted.
The Bill speaks of "joint working", but joint working will work only if both partners have equal responsibility as well as equal penalties. I am afraid that, in a complex organisation such as the NHS, we shall end up with buck-passing unless there is a named individual whom carers, patients and social services can contact. My experience showed that there was no such person. I want to appeal to the Minister because I heard myself asking, "Where is the matron?".
The Bill needs to ensure that those who need the service feel secure. Social services should not be forced into a position where the patient's needs are secondary to the risk of being fined. I trust that the Minister can reassure the House that patients and their carers will not be left in limbo at the point of discharge. The medical team should be expected to work closely with social services. I believe that that can be achieved only if there is a postholder who can follow through with both partners the patient's best interests. I ask the Minister whether there are plans in the Bill for such a post—I cannot see any.

955
I hope that, by giving noble Lords my personal view, I have not wasted the House's time but have explained that the Bill is needed. The sooner it is on the statute book, the better.
5.22 p.m.
Baroness Richardson of Calow: My Lords, I believe that it is generally agreed that hospital is not a very healthy place for most people—particularly for the elderly and for those whose admission is unplanned and who therefore often end up in wards which are inappropriate for their condition. I recently had experience of an elderly man with a chest infection who was put in an orthopaedic ward. His condition deteriorated, perhaps mainly because the nurses did not have the time or the inclination to help him to feed himself with the food offered. That type of inappropriate admission needs to be looked at carefully. I shall return to that point.
It is in everyone's interests to discharge patients into appropriate care as soon as possible. The intention of the Bill is said to be just that. It is intended to provide an incentive, encourage better communication and increase choice. It seems eminently reasonable that proper notice will be given when the patient is to leave hospital. The patient will be put into the hands of social services where a duty of care already exists and where a proper assessment of needs will take place.
However, the Bill seems to introduce a culture of blame and a system of fines into that mutual arrangement. That threatens the good working arrangements envisaged in the Health Act 1999, with its pooled budgets, integrated provision and commissions.
Many noble Lords have received, as I have done, information regarding creative schemes of community care which are being entered into across the disciplines, including GP and primary care trusts, NHS and social services, and charitable and independent sectors. Those bodies are all seeking to work together to develop new solutions. If those practices are working well, it would seem possible to think ahead about the needs of the elderly person before he was admitted to hospital. Thus, it would not be such a surprise when an assessment had to be made before he left. However, there has not been time for all that to be put into place. The Bill now seems to depart from whole-system thinking and seeks to make one department take responsibility for what could be a failure in a number of those different arrangements.
The Bill also fails to address other issues. One is the inappropriate use of hospital beds in relation not only to discharge but also admission. I am astonished when I see television advertisements saying that, if a person adopts a certain healthcare plan and is admitted to an NHS bed, he can then be paid money. I heard of an elderly gentleman who managed to get himself admitted to hospital three times last year and funded a holiday in the Canaries on the basis of it.
When you ring NHS Direct, in order to cover themselves if their advice is not correct, the staff will often tell you to attend the hospital emergency
956
services. Overworked GPs who seek to help elderly patients know that, if those patients were given appropriate diagnostic services, they would have to attend different hospitals or clinics and wait for the results of those tests for many weeks. The GPs would find it far easier to arrange for their patients to be admitted to hospital where all the tests could be done at the same time. But often that is not in the best interests of the patient.
Once a patient has been admitted to hospital, decisions on future care become acute rather than planned over time. Three days seems to me to be rather precipitate, particularly for putting into place specialist services. Having recently had responsibility for finding dementia care, I know that three days would be an impossibly short time for such a package to be found.
As has already been said, there is a need for additional capacity in community care, with additional services for the inevitable increased demand for homecare services, care home places and housing-with-care solutions. The Bill could divert finance so that local authorities would have to have a line in their budget reserving funds for the payment of fines whereas other initiatives could have been put in place. However, it is not only a matter of diverting finance; it is also possible that energy will be diverted from creative solutions into simply meeting this other need.
Other concerns have been mentioned, such as the fact that it is intended to implement the scheme quickly in 2003, whereas it would seem better to operate a pilot scheme in order to see how it works. It is unclear how the money generated in the scheme will be spent. I know that many of the provisions will be in the form of regulations. To my mind, the Bill will be either helped or greatly harmed by the regulations, which, of course, we have not yet seen.
Not much mention has yet been made of possible disputes arising between local authorities. That is perhaps of more interest to me than most since my husband is in residential care. That care is funded by Calderdale Borough Council in Yorkshire but is supplied by Enfield. I would hate for the decision as to where my husband is normally resident to be in the hands of the Secretary of State.
It is clear that the Bill has not been welcomed without reserve by any of the organisations that will be involved in its implementation. Therefore, I support the amendment of the noble Lord, Lord Clement-Jones.
5.29 p.m.
Baroness Barker: My Lords, I declare an interest as an employee of Age Concern England. However, the views that I shall voice will be my own. We have had an extremely thoughtful and high quality debate. It is clear that on balance even those who support the intentions of the Bill have significant and grave reservations. The right reverend Prelate the Bishop of Hereford put the matter most forcefully. He outlined to the House the extent to which a wide range of

957
bodies—not bodies that one could have predicted—believe that the Bill is potentially a flawed and disruptive piece of legislation.
A number of the clauses are quite deep and have been mentioned already. There is a gaping hole in the Bill: the Government have given us no evidence of local authorities failing to fulfil their responsibilities for reasons other than a lack of capacity. Given that that is a fundamental assumption behind the Bill, I believe that it is right for us, as parliamentarians, to ask for evidence of that.
Many speakers have referred to the proposal to levy fines on social services departments as a service model copied from Sweden. In fact, the system currently operating in Sweden originated in the Jutland area of Denmark. The system was adopted in Sweden only after consideration of how it should be modified to apply to the particular needs of the Swedish context. Moreover, it was introduced only after substantial preparation, including radical reform of the taxation system and investment in community services such as extra care sheltered housing, increased home care packages and, crucially, investment in joint planning systems. That is a stark contrast to the situation here.
The proposal to adopt a similar system to that of Sweden surfaced in March 2002 in Chapter 6 of the Wanless report into the future of the health service. That report stated:
"the current balance between health and social care is wrong: in particular, care is too focused on the acute hospital setting".
On delayed discharge it went on to say:
"Effective integration between health and social care, supported by the right financial incentives is the key to tackling such delays".
However, as my noble friend Lord Clement-Jones pointed out, the Wanless report also noted that approximately 26,000 residential and nursing care places have been lost. The report advised that,
"Appropriate financial incentives are required to sustain a viable nursing and social care home market. The need for regulation and improved standards must be balanced with stable financing to support the quality of care".
Wanless did not say that money should be diverted from the social care sector back into the acute sector, nor that a system that diverts money away from health promotion and prevention of hospital admission should be adopted. On the contrary, he advised that a thorough review of social care needs is crucial to the future of the health service and should be conducted as soon as possible. However, the Minister in another place, Jacqui Smith, in a response to my honourable friend Paul Burstow recently ruled out any such investigation. But without such an analysis, health and social care planning will suffer and be prone to ill-considered measures such as the one before us today.
Noble Lords may not have noticed in the Government response to the Wanless report, Delivering the NHS Plan, published in March 2002, that Chapter 8 contained an explicit commitment to introduce a system of fines on acute hospitals for readmissions caused by inappropriate discharge. That received very little coverage at the time, and although it represents a significant safeguard which would
958
protect older people, it does not appear in the Bill. When challenged on that point in another place, the Minister offered the somewhat lame explanation that in 2004 a new system of financial flows will be implemented under which money will follow patients. The Minister in another place argued that if a patient is re-admitted to acute care, the PCT will simply not pay for that episode of care.
It is impossible to tell from the Bill how such a system could be made to work in the best interests of good patient care. Apart from the unpredictability and unwieldy bureaucracy that must be required to track such a system, a reactive approach to discharge based on fines and failure must inevitably lead to patients being passed around like hot potatoes. A vicious circle of blame is not the basis on which to build good quality, sustainable services.
Like many noble Lords I read the report of the Health Select Committee into delayed discharge and I found myself strongly in agreement with its statement that delayed discharge is always a symptom of something else that is not happening or a failure in the system. If those problems are not addressed, the slickest discharge procedure in the world will not work.
In preparation for the Bill I looked at figures of actual delayed discharges in London. The figures are compiled by the London commissioning of older people's services project, which analyses the reasons for delayed discharges. Those figures for April and May 2002 reveal that the reasons for delay were as follows: 24 per cent was due to people waiting for an assessment; 30 per cent was due to the unavailability of residential and nursing care; 9 per cent was due to lack of funding; 6 per cent was due to people awaiting domiciliary care (in the past two years while the number of hours of domiciliary care has risen, the number of households receiving domiciliary care has dropped); 10 per cent was due to patient choice; 10 per cent was due to other reasons (one discovers that that was housing, especially adaptations, as mentioned by my noble friend Lady Maddock); and 11 per cent was due to delays within the NHS. Even a cursory run through those figures is enough to show that fining local authorities, as set out in the Bill, will exacerbate rather than solve the problem.
For many older people a condition which is sufficiently serious to require hospitalisation is likely to lead to a need for either installation of aids or adaptations, as my noble friend Lady Maddock has said, yet there is no mention of that in the Bill. Can the minister confirm that when an assessment has been carried out and a discharge is delayed because of lack of suitable housing and housing adaptation, the local authority will not be penalised for something that is not its responsibility?
This is a short Bill and, as ever, much is left to regulation. However, even as it stands it contains some measures that cause alarm. The proposal to permit discharge to an intermediate care setting on the basis of a partial assessment without any requirement that a full assessment be carried out within a specified period

959
is frankly alarming. It opens up the potential for older people to be discharged speedily from hospital—agreed by all to be desirable—although into a setting which is intended to be temporary but which could become permanent even if it is not suitable for long-term needs. As the noble Baroness, Lady Howarth, and anyone who works with older people knows, time spent in care, without appropriate support, tends to lead to much greater dependence.
Furthermore, the Bill as it stands has a particularly worrying omission. While it refers to a patient having been assessed as no longer needing acute care, there is scant regard for the fact that moving older people is often damaging and in some cases dangerous. Being able to be treated in a care home, or even with a care package at home, is not the same as being able to withstand the process of moving, which can often be extremely problematic. The Bill does not mention transport, and yet anyone who has been involved with enabling an older person to leave hospital will be aware that not knowing how or when they will be transferred is a matter of immense concern to them and can be deeply distressing.
The priority and focus that the Bill will inevitably place on hospital discharge will undoubtedly mean that in many areas resources will have to be switched from preventive and rehabilitative services. Any local authority desperate to avoid fines will have to invest in OT services. That in itself is no bad thing, but if it is done at the expense of handyperson schemes—I am one of the biggest fans of such schemes—which are an extremely effective means of enabling older people to live independently, it will lead to increased hospital admissions.
My noble friend Lord Bradshaw exactly set out the dilemma facing social services departments—not because they are unwilling to get people out of hospital but because they do not have the resources. Any GP with any nous will soon realise that the best way to get patients to the head of the assessment queue will be to get them into hospital. The Bill will cause huge distortions in local care planning and is bound to cut across much of the good work done in the NSF.
As to assessments being done in three days, I will bet money that the Minister's response will be that most patients are in hospital longer than three days so that will be a minimum, not a maximum. True. But the point at which the information passes between social services and the hospital is crucial. It is not often that residential care places become available at three days' notice.
A further concern is the lack of funding. Much has been made of the £100 million but there are other real pressures on social services. Any department that is not planning to increase its children's services is mad.
When the system was introduced to Sweden, the tax system was changed to provide the crucial sustainability. That is in stark contrast to this country, where much of the health and social care funding introduced by the present Government is short term and piecemeal. The 6 per cent increase in funding
960
personal social services is welcome but it does not apply to older people and is not guaranteed beyond 2006.
Furthermore, although the Government have invested much in the personal social services funding formula, as my noble friend Lord Bradshaw said, social services throughout the country are spending way in excess of their existing assessment. For example, the Social Policy Ageing and Information Network reported a year ago that local authorities are spending in excess of £1 billion over and above the Government's figure. Spending on promoting independence totalling £155 million and building care capacity costing £190 million comes to an end in March.
When one considers that most social care is labour intensive rather than capital intensive, it can be seen that the churn and turnover in the people required to do this job is a debilitating factor. One can set up the best computer systems in the world but if the people using them change frequently, the resulting lack of continuity is alarming.
My noble friend Lord Clement-Jones said that the Bill is health tourism at its worst and it is. The Government are taking a system from a country, Sweden, that has a high tax base and where health and social care are provided by sole suppliers—public local authorities. This country has a lower tax base and, while the level of private health care remains low, social care is provided by a range of suppliers—including the voluntary sector.
Given that the Bill is such a radical departure from previous health policy, one wonders whether the Government are setting social services departments up to fail—particularly when one considers the amount of administration required to make it work.
Evidence to the Health Select Committee in another place made it clear that far and away the most problematic discharges are those where the older person is mentally frail and the necessary care package is complex. At a time when the number of places for people needing dementia care is decreasing, the Bill's lack of protection for patients and patient choice, of any mention of advocacy and of any requirement for older people to consent to discharge is worrying. There is not even a requirement for patients to consent to information about them being given to a social services department, with which they may previously have had no dealings.
The Minister made much of the fact that the Bill merely compels social services departments to do what they are already required to do. When the noble Lord responds, I am sure that he will make much of varying performance in delayed discharges between different authorities. But he cannot say the extent to which a local authority which has good levels of delayed discharge does so at the expense of other admission and rehabilitation services.
If the Government really wanted to develop good models of integrated health, they would learn from the Swedish system and give time for the development of good practice on information sharing, patient

961
information and involvement. They would enable the development of joint planning by health and social services and consider the role that GPs play in hospital aftercare—one finding of the Swedish system that has not been considered. Models such as ithink should be given time to become established.
I urge noble Lords to visit the Department of Health's website. The draft regulations are not yet available, but under the Joint Unit section of the website the frequently asked questions about the Bill do not make happy reading and increase concern about leaving much of the detail to regulations. For example, the statement that anyone who refuses a care package will be deemed a self funder is extremely worrying.
Ministers in another place repeated the mantra that the Bill is about patients. It is not. It is about beds. It is about removing from practitioners the flexibility to do what is right for individual patients. It is about whether medical staff can stand up to pressure from bed managers and accountants. It is about removing from intermediate care managers the ability to decide that an older person needs seven weeks of care after a stay in hospital, rather than six. It is about grudgingly giving older people and their carers information when they ask for it, not as of right.
During the debate on the gracious Speech, I referred to this measure as the community care congestion charge Bill. Nothing during its passage in the other place makes me think that I was wrong. This Bill is bad. It is flawed in its assumptions and incomplete. It is being rushed through Parliament at a speed reserved by the Government for measures about which they are particularly worried. In this case, the Government's concern is not misplaced. Members of these Benches make no apology for giving the Bill a deservedly rough ride and the most thorough scrutiny.
5.47 p.m.
Baroness Noakes: My Lords, I begin by wishing the noble Lord, Lord Rix, a very happy birthday. If all older people were as hale and hearty as the noble Lords, Lord Rix and Lord Beaumont of Whitley, there would be no need for the Bill.
We have heard some powerful speeches—not least from my noble friend Lord Howe. There is no disagreement as to the policy aim of not keeping people in hospital unnecessarily, but the Minister cannot take much comfort from most speeches today. I hope that he has got the message that the Bill in its current form is unacceptable.
When my noble friend Lord Howe was drafting his amendment, he was persuaded by the Clerks to use the word "regret", so that it would read
"but this House regrets that the Bill risks damaging health and social service provision for older people".
My noble friend wished to use the word "deplore"—not in the sense of regret but of the dictionary definition of "scandalised by". Members of these Benches indeed deplore the Bill. It is not wanted by the NHS, local authorities and social services departments in particular. It will do irreparable harm to partnership
962
working between health and social services bodies and could be positively harmful to patients who, under the Bill, will be no more than piggy-in-the-middle. It is a thoroughly deplorable Bill.
My noble friend and others have already explained the scale of concern that exists about partnership working and the impact on patients. I want to dwell on some areas that are mundane but not without importance.
I start with money. We know that the Government tried to buy off opposition to the Bill in another place by announcing that £100 million per year would be paid to local authorities to allow them to pay the fines. The Bill is about fines, whatever euphemisms the Government use. That £100 million is part of the lunacy surrounding the Bill. It is not new money. It is part of the money obtained from the Chancellor of the Exchequer for the NHS. The Secretary of State pinches £100 million of NHS money to pay to local authorities which will then pay it back to NHS bodies by way of fines.
That would be silly enough on its own, but noble Lords will see that the money will pass through two public sector bureaucracies: local authorities and the NHS. The Explanatory Notes say that the administration costs will total £5.5 million. I tried to investigate that figure—which seems low—in the regulatory impact assessment. But despite paragraph 58 of the Explanatory Notes, the Minister may like to know that the regulatory impact assessment is not on the department's website, at least not in any obvious place. We will have to take at face value the claim that the bureaucrats will spend £5.5 million. Hey presto—£100 million that could have been spent on a multitude of provisions if allocated to primary care trusts has turned into £94 million.
There are other problems. The latest estimate by local authorities is that the new fines will cost local authorities £165 million. So, with the costs of bureaucracy, there is a gap of over £70 million. We can forget about the 6 per cent increase in social services funding about which the Government have been bragging; there will not be anything left. In many cases, council taxes will have to rise.
Local authorities remain in the dark about how the £100 million is to be allocated between them. The £100 million was announced last December but no one knows how it will be shared out. Will it be given to the local authorities that have the most problems in avoiding the new fines? Many local authorities face particular difficulties, particularly those whose care home capacity has been decimated by the Government's disastrous policies towards the care home sector. Will the money be given to such authorities? I ask the Minister to give a clear view and I should say to him that many believe that the Government will use this £100 million as yet another excuse to allocate public money on a wholly partisan basis to the areas from which they derive the most political support. Will the Minister say categorically that this will not be the case?

963
My noble friend Lord Howe talked about the incentives that will exist for NHS trusts to discharge patients early. That takes me to the lack of reciprocal obligations and penalties on the NHS. The Bill lacks symmetry and is unfair in that respect. Last April the Government outlined a system of fines that would apply both to social services and to the NHS. But somehow, as the noble Baroness, Lady Barker, pointed out, the NHS part has disappeared.
The Minster in another place, Jacqui Smith, claimed that,
"under the new financial flows, acute trusts will not receive funding for patients who are readmitted to hospital within a certain period, so there will be a financial incentive for them".—[Official Report, Commons, Standing Committee D, 10/12/02; col. 47.]
The Minister made a similar claim in the briefing session for Peers last week, for which we thank him. I was glad to hear nothing claimed today for financial flows. The truth is that there are no incentives for the NHS to balance the fines on local authorities. Documents such as Reforming NHS Financial Flows do not deal with the issue. The Bill is one-sided.
This system does nothing to provide compensation for local authorities. What happens if, under the Bill, an NHS trust notifies an intention to discharge? The local authority has two or possibly three days, including weekends, to rush around to make arrangements for the patient. Then on the day the NHS trust changes its mind and says, "Sorry, we got it wrong". It may not even say "sorry" because it does not matter to the trust. The local authority might have made commitments to care homes or to providers of domiciliary care. Why does the Bill not require the NHS to reimburse the local authority for such incidents? It is quite likely that the incentive structure of the Bill will make this happen much more than in the past; and there is nothing to stop inappropriate behaviour by trusts.
We are becoming used to the Government drafting Bills with major regulation-making powers without having given any thought to the details. This Bill is no exception in terms of regulation-making powers. But we understand that the Government want to implement the Bill on 1st April and therefore we expect that the details must be fully worked out. The Minister agreed informally in the briefing meeting to share the draft regulations with noble Lords when they were available. Will he say when he expects to do this? I hope that he will not expect this House to start Committee stage without having had an opportunity to consider the draft regulations carefully.
The last area that I shall address is the need to review the impact of the Bill on patients. Patients are almost forgotten in the Bill. Nobody believes that delayed discharges are good for patients. Most people loathe being in hospital for extended periods. But equally bad for patients are inappropriate discharge arrangements, perhaps forcing an old person into a care home because of a timing or other delay with home-based arrangements. So too is the prospect of being moved from pillar to post because the NHS has washed its
964
hands of the patient but there are genuine difficulties with establishing long-term arrangements. We have heard many examples today. Will the Minister say how the consequences of the Bill for patients will be monitored and how they will be reported to Parliament?
I do not want the Minister to be in any doubt about the view of these Benches: this is a bad Bill. The best possible outcome would be for the Government to accept that the Bill is misconceived. My noble friend's amendment urges the Government to reconsider. They do not have to take the Bill further than today. There are precedents even under this Government for that. If we find ourselves in Committee, I give notice that we shall propose a number of significant amendments to take out the worst features of the Bill and that we shall pursue them vigorously.
5.57 p.m.
Lord Hunt of Kings Heath: My Lords, this has been a good debate. I look forward to Committee stage with keen anticipation. I join the noble Baroness, Lady Noakes, in congratulating the noble Lord, Lord Rix, on his 80th birthday. He looks no different from when he trod the boards at the Whitehall Theatre a few years ago. It was good of him to speak in the debate today.
The one issue on which we are united is the need to sort out the problem of delayed discharges. I do not underestimate the challenges facing local authorities and the NHS. I say to the noble Baroness, Lady Howarth, that I am a strong supporter of local government. When I criticise local government, I try to do so as constructively as possible. I do not underestimate the potential of partnerships nor doubt the need for a holistic, whole-system approach to health and social care collaboration for older people.
What troubles me is the recognition that if 5,000 mainly older people are delayed in hospital beds when they no longer need to be there, we are failing them and their families. All of us have known or seen the consequences for older people of losing their independence and becoming institutionalised. That is my direct response to the noble Baroness, Lady Noakes.
I accept, as the noble Baroness, Lady Barker, said, that there is any number of reasons for delayed discharges, including delays in assessment, in providing a care package, in waiting for a placement, in putting a domiciliary package in place and in the performance of the National Health Service. The developing partnership between the NHS and local government and a top-down performance management approach could all be expected to play their part in improving the current situation. I congratulate many local authorities on their success in improving their performance on delayed discharge. But that cannot be left to chance.
The outcome for older patients delayed in acute hospital beds is so serious that it warrants a more robust approach. As I see it, the problem is that, despite the many examples of good practice, there are still too many flaws in the system and too many

965
examples of bad practice. We know that long-standing practice can get in the way of smooth discharge from hospital and that simple communication breakdowns can make it much harder for patients to get back out into the community. My noble friend Lady Howarth gave us one example; I could cite many others. Examples such as those convince me of the need for a more robust procedure under which statutory agencies must sharpen up their act.
I do not accept the suggestion of the noble Earl, Lord Howe, that the Bill will undermine partnerships. Where the current partnership arrangement works well, it has a positive impact on the outcome for the individual who is ready to leave hospital. The Bill will foster good relationships and partnerships because it will clarify much more effectively the role and responsibilities of the various agencies involved in discharge procedures. Under the Bill, there will be less scope for disagreement about who is responsible for a delay. That will help to smooth the discharge process. In other words, I do not agree with the noble Lord, Lord Clement-Jones, that it will become a name game.
The Bill's approach enhances the need for partnership and creates an incentive. That is the whole purpose of transferring the budget in the way that we propose. It will create the right incentive to bring partners to the table to discuss how best to increase capacity and make any other necessary changes in working practices.
The noble Baroness, Lady Greengross, is right: we must demonstrate that that approach will be as rigorous and tough for the NHS as it is for local government. It will be. I can confirm to my noble friend Lady Howells that there will be no buck-passing in the NHS and that regulations will include the requirement to have a named NHS individual.
Sweden has been mentioned several times. Although various countries can offer us a clue towards the solutions that we need, I point out that the health and social care system in England is not the same as that in Sweden. In fact, the Swedish reforms that introduced reimbursement also involved a major transfer of responsibility for primary care for older people to the municipalities. That threw up many tensions that will not exist in this country.
I said that the Bill will not undermine partnerships. In fact, it will build on them while providing the robustness that is often missing in some local health authorities and the NHS. The noble Baroness, Lady Howarth, mentioned the Climbié inquiry. It would be entirely wrong for me to anticipate Lord Laming's report, but we have only to read other inquiry reports to understand that time and again, alongside any structural or funding problems, what comes through is sloppiness in practice and the failure to record decisions and to communicate between agencies. Under the Bill, we will start to grip that issue as it affects delayed discharges.
I know that some noble Lords consider that we should delay the introduction of this system. All that I would say is that local authorities and the health service have been under notice for a considerable time.
966
They have been making preparations. I have been encouraged by some comments that we have received from local authorities about their state of readiness. Of course, statutory agencies always want to delay the date of implementation; that is the normal reaction that we expect. The problem with postponing the date of implementation is that that postpones the date by which older people can take advantage of the new arrangements in the Bill.
I have listened with care to the points raised by the noble Baronesses, Lady Richardson and Lady Howarth, about the time taken for assessment. The noble Baroness, Lady Barker, always anticipates my response; it is uncanny how she can forecast what I am going to say. But the fact remains that the average length of stay in an NHS hospital for a person aged over 65 is 11 days. So in most cases there will be more time. However, equally, we should surely want to encourage health and local authorities to gel their act together and get the assessment done as quickly as possible. Why should we delight in delay?
Of course, some individuals will have complex care needs. I readily accept the point made by the noble Baroness, Lady Howarth, that there will be individuals for whom it will not be possible to draw up a full discharge plan within three days. But I contend that an acute ward is not the place for such a person to be cared for while that care planning is completed. Surely in such cases it is much better for patients, while their long-term care is being planned, to be transferred—with all due care and attention to the issue of transport and the new place where they are to be cared for; I accept the point made by the noble Baroness, Lady Barker, about that—to a non-acute and more comfortable environment.
I was asked about bureaucracy and associated costs by my noble friend Lady Pitkeathley and the noble Baroness, Lady Noakes. I confirm that we want to keep the transactional implementation costs to the minimum. Clearly, there will be costs—there is no point in running away from that fact—but they are significantly outweighed by the benefits. I return to the point raised in so many previous inquiry reports into failures of statutory services. I refer to the ability to track what is happening to individuals and to ensure that individual officials are responsible for making and implementing decisions, and the bearing that that will have on the necessary accompanying paperwork. Getting to grips with that—seeing who is responsible and making sure that those statutory agencies deliver—is worth some additional paperwork.
The noble Lords, Lord Clement-Jones and Lord Chan, were worried about the whole question of dispute resolution and understandably feared that the procedure would lead to a great many disputes, which is not how we would want health and local government authorities to work. I agree: we do not want a huge number of disputes. The guidance that we will give to health and local authorities will point out that for reasons of time and resources, it is clearly desirable for two public bodies to reach amicable agreement rather than having constant recourse to the panel.

967
Noble Lords put great store on partnership. The test of partnership is to enable these arrangements to be bedded down in the most agreeable way possible, where everyone recognises that they are dealing with a series of cases with clear protocols and where there will not be a need for the disputes procedure. Of course, if there has to be dispute resolution, so be it. We shall give strategic health authorities the role of oversight. But I can assure the House that the panel itself will be composed of a local authority and an NHS representative with an independent chair. I hope that that gives comfort because it will ensure a dispassionate overview of a specific dispute if such a panel needs to meet.
The noble Earl, Lord Howe, the noble Lord, Lord Clement-Jones, and the noble Baroness, Lady Greengross, were worried that the Bill would produce a system where the patients revolve around the system, and that perverse incentives would come into play causing real problems for the individual. That is not the intention of the Bill. Perverse incentives will not come into play. The whole point of transferring the resources to local authorities and of the new funding flow system we shall be introducing to the NHS starting in the new financial year, fully implemented in 2005–06, is that there will not be financial incentives for health and local authorities to cause real difficulties for the patients involved. I do not accept the suggestion that general practitioners will seek to admit patients purely so that they have access to social services. I have greater confidence in the responsibility of GPs in that arena.
My noble friend Lady Wilkins quoted some excellent examples of good practice, about how rapid repair teams can sort out aids and adaptations very quickly. I agree. We issued good practice guidelines to the NHS today about the whole discharge area. I can say to the noble Baroness, Lady Maddock, that it includes housing issues. The noble Baroness made some excellent points in that regard. I hope that the whole process of introducing this Bill, of ensuring that health and local government have the incentives to sort the matter out, will grip some of the issues that the noble Baroness raised. The examples given by my noble friend and by the noble Baroness, Lady Maddock, about how some of the rapid handyman schemes can quickly sort out aids and adaptations are an example to those parts of the country where it takes months for similar situations to be sorted out. That gives me confidence that in the end we can ensure that the Bill will be implemented as effectively as possible.
The noble Baroness, Lady Howarth, expressed concern about the distortion of social service priorities. We are not seeking to add additional responsibilities to local government. These matters are already the responsibility of local government. We are trying to put in place incentives which will make it deliver those responsibilities more effectively.
In response to the right reverend Prelate I can say that it is not our intention to undermine a holistic approach in dealing with these difficult issues. That is far from the point of this Bill. The Bill seeks to get right
968
the incentives for health and local government to come together and agree a holistic approach to the difficulties.
I recognise the issues raised by my noble friend Lady Pitkeathley and the noble Baroness, Lady Howarth, in relation to patient choice. These proposals are aimed at putting the patient firmly at the centre of care. The whole point is to encourage local authorities to put into place more community services to give the patient more choice. The Bill does not in any way affect a patient's legal right either to choice or anything else. The Bill does not cover that issue.
I thank my noble friend Lady Pitkeathley for her welcome of the amendments made in another place concerning carers. However, I was disappointed that so many noble Lords raised the issue of care home capacity. Of course care home capacity is important. But it has not fallen to the extent suggested in the figures quoted from Laing & Buisson; and care home places are not the only option. I pay tribute to local authorities for increasing the provision of the alternative forms of care home that are becoming available. Part of the process of the Bill is to encourage more and different care support packages to be made available. Also, it will encourage local authorities to get together with care home owners to talk about longer-term arrangements to encourage stability in the market, the absence of which has been a long-standing complaint from the care home industry. We are already seeing, as a result of the increased funding we are able to put into local government, increases of more than 3 per cent in the fees paid to those care homes.
I was asked a number of questions about research and monitoring. I confirm that we shall be monitoring the situation extremely carefully. I confirm also, for my noble friend Lady Pitkeathley and the noble Baroness, Lady Noakes, that we will be commissioning research into the impact of reimbursement, not only on the delayed discharge as it happens in hospitals, but on the system as a whole.
On equipment issues, which were largely welcomed by noble Lords—I look forward to Part 2 of this Bill in Committee—I accept the importance of OTs in the assessment process and the importance of the single assessment process. Again, the incentive here is to encourage that assessment process. OTs have an extremely important role to play. We must ensure that we use their scarce resource as effectively as possible. The signs from the NHS and local government are that that is indeed happening.
Many interesting points were raised in this debate. I say to the right reverend Prelate the Bishop of Hereford that I do not underestimate the challenges. I note the concerns of the organisations and the hard-pressed professionals. In the end those organisations and professionals are well able to stick up for themselves. My concern is for the individual older people who need sticking up for.
I reject absolutely the suggestion that patients will be shunted around. I refer again to the many past inquiry reports into failures in public services which

969
showed that a lack of robustness, a lack of codification and a lack of getting their act together cause real problems for individuals. My noble friends Lady Pitkeathley and Lady Howell, and the noble Lord, Lord Rix, talked about the present problems in delayed discharges. They concern lack of notice, lack of planning and lack of communication. But we were also told of local authorities which have got their act together and cracked the issue of delayed discharges.
We know that when older people are stuck in care in an acute bed, it can lead to rapid institutionalisation. The longer they stay there, the harder it is to be discharged back into the community. This Bill will go a long way to improving the situation for those individuals. We have transferred sufficient resources to local government to enable it to do its job properly. This Bill will be a measured improvement on current conditions and circumstances and I invite the House to give it a Second Reading.
6.20 p.m.
Lord Clement-Jones: My Lords, this has been an excellent debate. It has not been much of a "birthday-fest" for the noble Lord, Lord Rix, but, nevertheless, I congratulate him on his 80th birthday today.
The Minister gamely replied to the debate, but it is clear that this Bill arrives virtually friendless in this House. Even those who had a good word to say about its intentions were beset with doubts and anxieties about its effect. I was particularly struck by the speech of the noble Baroness, Lady Pitkeathley. The adage, "With friends like this…", springs to mind in those circumstances.
The right reverend Prelate the Bishop of Hereford supported the amendment, but complained of the weak language used in it. I am afraid that we are bound by convention and I regret the fact that we cannot use the word "deplore". If we could have used stronger language, I would have done so and for that reason—and that reason alone—we on these Benches will not press the matter to a Division. We believe that the words of the amendment go only half way to demonstrating exactly how strongly we feel about the contents of the Bill.
If by convention we could throw out the Bill in this House we would—and I believe that the same applies to the other Opposition Benches. We have the absolute determination to improve and make radical changes to the Bill on its way through this House. One of our first demands in Committee will be for a sunrise clause to delay the introduction of these measures at least until 2004. On these Benches, we will also want to see a range of other improvements: for example, proper safeguards on patient and carer consent and mental incapacity; and a time limit by which a full assessment of care and carer's needs will be completed so that people are not ultimately stuck in care homes. We shall want to see many additional amendments.
The Bill's passage through this House will not be an easy one. I advise the Minister to fasten his seat belt and prepare for a rough ride. We will be doing all we
970
can to eliminate the worst aspects of the Bill. The real question is: are the Government prepared to listen a little, a lot or not at all?
While I have the attention of Back Bench Labour Peers, perhaps I may advise them that when they go to No. 10 tonight they should tell the Prime Minister what a bad Bill this is and how little support it has in this House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Education Act 2002 (Modification of Provisions) (No. 2) (England) Regulations 2002
6.22 p.m.
Baroness Blatch Baroness Blatch rose to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 2nd December 2002, be annulled (S.I. 2002/2953).
The noble Baroness said: My Lords, in moving the first Motion standing in my name, I shall speak to all the following regulations. I and my noble friends on these Benches and those to whom we spoke during the passage of the 2002 Bill feel entirely vindicated. We predicted that numerous regulations and guidance notes would be spawned by the Bill and they have. Ministers responding to concerns about the introduction of admission forums argued that it would be straightforward—merely reflect best practice—and be simple to apply. We now have nine sets of regulations, and perhaps more to come, two voluminous jargon-written codes of practice with endless cross-references to further guidance and other statutes, and the constant threat of the heavy hand of the adjudicator and/or the Secretary of State.
Many schools of all categories and other relevant interested parties are baffled about the laying of the codes of practice before Parliament which, for reasons I shall explain, we are unable to deliberate upon today. I shall deal first with consultation. A mere 25 days was given for consultation, which was wholly inadequate. The Government breached their own guidelines and code of practice on consultation when they said it should last for at least three months. Previous consultation is no substitute for what are now to be regulations couched in law. The date of 18th September is early in the term for primary and secondary schools. To invite them to respond to such a complicated set of regulations and two large documents in only 25 days is more than any school can cope with.
However, only 637 out of 20,000 were told about the process. The Campaign for State Education, which is anti-choice and anti-selection in education, was consulted. The Campaign for Real Education, which is pro-choice and for selection in education, was not consulted. The Secondary Heads Association was consulted. The National Association of Head Teachers was not consulted. The hierarchy of the

971
Anglican and Catholic Churches were consulted but they did not consult their Church schools, nor did the Government. Of the only 187 written replies, 94 were from local education authorities which in turn did not consult their schools; 50 were from schools which happened to know about the process or were some of the lucky 637; 16 were from Churches and other faith organisations; 17 were from education and children organisations; and only 10 came from parents and other individuals. Consultation has been limited and has been arbitrary.
One argument used by the Minister—perhaps it will be repeated today—was an intention to cut down on bureaucracy to schools. There are two responses to that. First, when the law effects real changes to parents, children, LEAs and schools they should know about it. Secondly, a simple letter explaining the nature and import of these changes to local authorities, schools and other relevant interested parties informing them that regulations and codes had been laid—better still, that they were to be laid, thereby giving notice—and access via the website, or hard copies from the department, should have been made available.
I turn to the incompetence of the department. I called the department before Christmas, as did Dr Marks, the education researcher, and Mr Nick Seaton from the Campaign for Real Education. All of us were told by an official at the department that he could not tell us when the documents would be published and when the code would be laid. The code had been laid on 15th November.
Subsequently, we were told that these documents could have been seen on the website, but they disappeared from the website. I was telephoned by a number of schools—three on a particular day—and by the Campaign for Real Education asking me for news of the codes of practice. Eventually, I telephoned the department and spoke to three different officials that morning. They did not know when the code would be produced. Later that day, I was telephoned by an official who told me that it had been published and laid before Parliament on 15th November and that it was then too late to lay a Prayer to Annul.
The official was puzzled as to how I and others had been misled. I was offered an apology, which I accept. Nevertheless, we were misled—and not only us, but schools, too. Those points alone—the poor and patchy consultation and confusion over the introduction of the code—provide good grounds on which to take the regulations away and reconsider the matter further.
Head teachers, teachers and governors will continue to take a jaundiced view of ministerial promises to cut the level of regulation and bureaucracy. Even now, it is not possible to understand what problem the Government were seeking to resolve by introducing admission forums underpinned by copious secondary legislation, plus two volumes of codes of practice. Ministers from time to time boast about the numbers of children or percentages of pupils who receive their first preferences for choice of a school. If there is a problem—and it does not appear that there is—it is
972
that there are not enough good schools and places. Clearly, when one looks at the competition for entry to the city technology colleges and grammar schools, the problem should not be resolved by this over-mighty, over-bearing and complex set of regulations and codes of practice, but by the expansion of those places, which would gain greater pupil and parental support.
Where a school is over-subscribed, playing around with the admissions system will not allow access for more pupils. The system proposed simply removes control from heads and governors and puts it into the hands of admissions forums, but more seriously, into the hands of an unelected, unaccountable, government-appointed adjudicator. Worse, there is no appeal, other than resorting to expensive judicial review to challenge any decision made by an autocratic adjudicator.
Who in the education system, especially heads and governors, has the time to interpret the convoluted legalese of these documents? Why should a third person intervene when, if an admission goes wrong, it is the school governors and the head responsible for the response. Should fault be found to lie with a third party outside the control of the school, will the costs of any litigation, appeals process and where necessary, the remedy, be met by the Government?
Local education authorities will not be obliged legally to operate the model scheme. However, it is clear from reading these documents that there is pressure to do so. I should like it made absolutely clear that they have no obligation whatever to use the model scheme.
Referring to Paragraph 52 of the annex to the code, why should any school be forced to adopt a home school agreement, if the parent is not required to sign it as a condition of access? Why should a school be forced to take a pupil whose parents are not even prepared to sign up to the way in which the school is run?
Paragraph 7(32) actually says:
"Head teachers have no individual role in school admissions".
Head teachers have no individual role in admitting children to their school? No wonder such emasculation is affecting the recruitment and retention of head teachers.
I refer to the Explanatory Note regarding the eighth set of regulations on the list. I use the Explanatory Note because it is impossible to use the legalese of the regulations themselves. It says,
"They [the local education authorities] are to refer their proposed schemes to the Admission Forum established for their area and to have regard to the Forum's advice or recommendations before consulting each governing body to whom a scheme is to apply".
Having regard to the advice is one thing, but the code should make it clear that that advice is not binding. The Explanatory Note goes on,
"Authorities are also required to consult other local education authorities with a view to securing, so far as is reasonably practicable, that their respective proposed schemes are compatible with each other".
My own local authority is bound by Norfolk, Suffolk, Lincolnshire, Hertfordshire, Bedfordshire and Essex. Are we talking about masses of consultation countrywide? In a London authority, there are schools which will have to talk with 40 local education authorities.
As regards those same regulations is Paragraph 2 of the Schedule places a duty on local education authorities,
"in relation to dealing with and determining parents' applications for schools, and paragraphs 3 and 4 place reciprocal duties on participating governing bodies. In particular, where it appears to the authority that a child in their area may be eligible under individual admission arrangements to be offered admissions to more than one school, or is not eligible to be offered admission to any school, they are required to determine … what single offer the parent of that child should receive".
What happens to the legal obligation to take note of the parent's preference?
As regards the second set of regulations, and Regulation 2(5), if a school has met the conditions to earn exemption from the duty to consult, why is it necessary for the local education authority to inform the Secretary of State? The heads, the governors, the parents, the local education authority are the local people. So why do they need to tell the Secretary of State? Why must all those who would have been consulted, had there not been the exemption, have to be notified? If there is no change, what is the point of having to consult?
What on earth is a composite document? It reminds me of a trade union document, as I read this. The composite document has to be produced. They can be separate for primary and secondary. They can be produced, two or more separate ones, for different parts of an area. They have to be produced by the 1st October and made available to anyone who wants them. Who will pay for that and if there is to be no charge, then clearly the cost will fall on the local authority, so what is that cost?
Every governing body must provide specified information no later than such time before the time required for publication of the prospectus, which is 1st October. Where are the schools going to find the time in that very short period from the beginning of the Autumn term to be able to provide all the necessary information?
In the fourth statutory instrument on the list, there is a reference in Regulation 4 to,
"the relevant school organisation".
It would be helpful to know what that relevant organisation is.
There is also further on in the Explanatory Note, a reference to,
"the relevant committee".
It would be helpful to know what that is. Is this covered in the terms of an adjudicator? My understanding was that the adjudicator dealt with those issues that could not be dealt with by the organisational committee. It would be helpful to know what that means.
The fifth set of regulations on the list prescribe: the manner in which an appeal is to be constituted, the duty of the admissions authority to advertise for lay members, the procedure an appeal panel is to adopt when hearing appeals, the relevant considerations which an appeal panel is to take into account, the payment of allowances to appeal panel members and arrangements to indemnify appeal panel members against expenses.
Who pays for all of that and what are the costs?
I turn to the sixth set of regulations. Regulation 6 deals with tenure of members. Regulation 7(5) says:
"the office of chairman and vice-chairman may be held by a person who may or may not be a member of the forum".
Is that really the case?
My final detailed point is about the adjudicator. Any parent may object to the adjudicator about a school where the admissions capacity is lower than the net capacity of schools. I assume that the adjudicator makes this decision alone, that there is no appeal against that and that is an autocratic decision on the part of the adjudicator. Can a parent object to city technology colleges, city academies, specialist schools, schools of partial selection and also grammar schools?
It is worth recording the lengths to which the Government will go in their philosophical objection to selection by ability or even their perception that a school could be selecting by ability. The codes and regulations are littered with prohibitions, checks and unsubtle comments which will exert pressure on parents and schools. Those who will be affected are bright, talented and academically able young people. Those most affected will be those from poorer homes, unable to make alternative arrangements. either by paying for private education or moving house to a better catchment area.
What powers will the adjudicator have over grammar schools? What can a parent complain of and what is the limit of the adjudicator's powers over grammar schools? Delaying preferences on the preference before test requirement will disadvantage many children, again, some of them bright children from poorer homes. Does this requirement apply to CTCs, academies, partial selective schools as well as grammar schools? Why not allow all applications to selective schools, either in part or whole, to take place first, giving all parents of children a level playing field to apply? Then, following allocation to selective places, parents could state their preferences for all the other schools which would also create a level playing field. Again, the children most likely to benefit would be bright ones from poorer homes.
If Ministers are not aware of the deep disquiet among Church schools, they should be. Under present regulations, interviews form part of the admissions process; they have done so for decades. If the Anglican and Catholic hierarchies were concerned about a perception that there was a lack of objectivity—or, worse, a perception that interviews are used to breach the rules on selection—and they knew it not to be the case, they should have stood by their schools and defended them; they should not have deserted them. If

975
the Church hierarchies believed that interviews should be banned, they should have convinced the governors, heads and parents of their own schools and not done a deal with the Government.
There is an excellent article by John Clare in today's Telegraph. I know that everyone wants to go to a party, and so I shall not read it out in full. It states:
"The head teachers complain that they were neither informed nor consulted—and nor were Catholic parents or governing bodies.
'We believe good, conscientious, Catholic parents who are trying to bring their children up in the faith in the face of enormous odds will be aghast when they realise what their bishops have done', said one Catholic head teacher … 'We believe that parents have a right to an interview and an opportunity to represent at interview their commitment to Catholic education and how they meet the criteria of the school"'.
The article continues:
"'Although we write to parish priests for references, our experience has shown that these references alone are frequently not reliable', he said. 'Without an interview if would be more difficult for us to determine the degree of practice and commitment.
There is a serious danger"'—
this is an important point—
'"that the references from priests would determine which applicants would be offered places, and the admissions process would be less reliable. In many cases, parents would be relying on the reference-writing skills of their priests, and there would certainly be a significant rise in the number of appeals"'.
And of course the schools would be held responsible.
Popular schools draw their pupils from a wide catchment area, particularly popular Church schools. It is true that at least one London school has to liaise with 40 local education authorities and independent schools. The way in which this system overlays those procedures is absolutely monstrous and unacceptable—but the voice of such schools was not heard in the consultation process.
It would take a genius to interpret the rules and regulations governing "class-size prejudice". The code of practice, which is meant to be an explanatory document, does not help.
I have merely scratched the surface of the points I wish to make about these regulations. I know that there is to be a party and that there are some fairly anxious noble Lords behind me, so I shall not labour the issue. But let the Minister be in no doubt that what I have said is but a fraction of what I would have said had there been more time.
Finally, I cannot do better than to quote from a letter sent to the headmaster of a former grant-maintained school. After listening to a speech made by David Bell, the head of Ofsted, the headmaster of another school said:
"His [David Bell's] statement that schools are now more autonomous than ever before beggars belief. My experience, and I am now in my 26th year of headship in the maintained sector, is exactly the opposite: we now have less autonomy than ever. LEAs may no longer have the whip-hand but central government certainly does. The system is now tightly controlled by a system of regulation so complex, overbearing and labyrinthine that to call it Byzantine would be a serious understatement".
Those are not my words. As a Member of the Opposition, the House would expect me to say something like that, but those are the words of the headmaster of an exceptionally good school who feels absolutely outraged by what the Government are doing in these regulations and codes of practice. I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the regulations laid before the House on 2nd December 2002 be annulled [SI 2002/2953]. —(Baroness Blatch.)
6.45 p.m.
Baroness Sharp of Guildford: My Lords, we on these Benches share the unease of the noble Baroness, Lady Blatch, at the peremptory consultation procedure in regard to the codes of practice that underlie these regulations. The time allowed for consultation was totally inadequate and the time of year at which it was undertaken was most inconvenient for all heads. We cannot expect to have proper consultation on codes of practice as important as these at that time of the year and over so short a period. It was thoughtless of the department to proceed in that way. If it intends to introduce these kinds of procedures, the department should give a little more thought to the best way of consulting people. If the Government want to get codes of practice and regulations that have a reasonable chance of being implemented onto the statute book, they should carry with them those who have to implement the regulations. Nowadays we seem to place more emphasis on the whole idea of ownership, and that is an issue that the department should think about to a greater extent.
Having said that, I have read through the regulations and I believe that they implement the Act we passed last year. As the noble Baroness, Lady Blatch, said, they embody all the bureaucratic details that we predicted because of the degree to which the department is trying to micro-manage them, but, broadly speaking, the regulations derive from the changes brought about by the Act. We had lengthy discussions on those changes during the debate and we on these Benches are broadly supportive of them.
We are glad to see the more inclusive arrangements for admissions. We supported the whole concept of admissions forums, but I have one question for the Minister. I understood at the time the Bill was passed that admissions forums would relate to a local area, not necessarily to an LEA area; for example, that in Surrey we would take a group of schools within Guildford and establish an admissions forum to cover the Guildford area. This has been happening within Surrey, where we have tended to work with schools on admissions in local areas which have been broken down to provide geographical cohesion. It is quite clear that the regulations are concerned with LEA-wide admissions forums rather than in terms of breaking down areas, and I wonder whether the Minister wishes to say anything about that.
Regulation No. 2897 seems unnecessary. It relates to the publication of the information that LEAs, heads and governors are required to produce. Do we really

977
need to tell LEAs that they must publish the names and addresses of schools; that heads have to publish the names and addresses of governors and so on? That seems to be teaching LEAs, heads and governing bodies to suck eggs. However, the Government have made it quite clear that they do not trust them to do these things and have decided that it is necessary to go into this kind of detail.
I am sad about that because, as I said, there are aspects of the regulations which we welcome—particularly in relation to the inclusion arrangements. We also welcome the fact that these arrangements cover simultaneously a whole range of schools—voluntary aided and voluntary controlled, foundations and CTCs. I know that the Conservatives are not happy to see this, but we are pleased with the more comprehensive regulations and, in particular, with the attention given to looked-after children and children with special needs in regard to admissions regulations.
Sadly, we accept that, ultimately, the regulations have to be detailed and bureaucratic. They fit in with the whole ethos that the Government are pushing forward. It is sad, but we on these Benches are prepared to hack the Government in bringing the regulations forward.
Lord Pilkington of Oxenford: My Lords, I can assure the House that I shall not keep anyone from their social engagements. I shall be brief. I wish to speak to these regulations because I have been approached by many people, through the various posts I hold, to express the deep distress that they feel about the way in which this issue has been carried through.
I need not dwell on what my noble friend and the noble Baroness, Lady Sharp, have said about the consultation period. It was—I use the word advisedly—a disgrace. I am a governor of a Roman Catholic school, surprisingly. The Roman Catholic hierarchy had not a chance to consult each other because such a short time was allowed for consultation immediately before Christmas. I cannot speak for my own Church, but the same case applied. I am president of the National Grammar Schools Association which represents almost all the grammar schools. Not a word was sent to us. I am also a member of the National Association of Head Teachers. I seem to be unfortunate in the Government's spotlight as regards this matter.
I speak for four Roman Catholic schools of some excellence. The regulations will hit denominational schools hard as interviews are forbidden. As the Minister knows, denominational schools take their pupils from a very wide area. People from Downing Street go to Fulham, for example. The scope is even wider in the country. Priests in very large Catholic churches cannot know in detail the family situation. There may be six masses in the morning in an urban area with hundreds of people attending. How can a little cyclostyled letter, which is often what it is, give the headmaster the knowledge that he needs? The headmaster of a Catholic school, but not in London, I hasten to say, asked me this. The Government have
978
done something which is quite wrong to denominational schools in the interests not of religion but of bureaucracy and interference.
The Government profess that they are not hostile towards grammar schools. They say that it is up to the communities. If they want to vote against them, that is all right, but the Government want to be counted out. These regulations do enormous harm to grammar schools because there is selective entry and the regulations make it impossible for parents to have second choice of the most decent school in the area. In essence, if a pupil fails to gain entry to a grammar school it goes to the school with the least pupils. That is not parental choice. It is an awful dilemma for parents. I cannot understand how a decent, democratic government can do this sort of thing when they are not prepared to abolish the schools themselves.
I wonder how these much-vaunted specialist schools can exist without interview or approach. For example, I may wish to go to a language school, but it would not know whether I know French from Dutch or whether I am interested in languages. What if I want to be a plumber and I find myself at a language school? How are the Government going to organise that?
These proposals are a disgrace. I rarely become passionate about these things. I have been approached by so many people. There is a lack of consultation; lack of care for parental choice; bureaucracy and control from the centre. The only people who will benefit are of the independent sector because those who have money and who cannot get their child into the school of their choice will choose other schools. The Labour Party's policies kept me in a job and gave me a pension for 40 years and the same will apply to my successors.
Lord Lucas: My Lords, I declare an interest as editor of the Good Schools Guide. I am enormously disappointed by these regulations. They do nothing for parents, as my noble friend Lady Blatch and the noble Lord, Lord Pilkington, have said. They make life more difficult for parents. They reduce choice in a practical sense and they inhibit the free exercise by parents of their choice which, in the end, is what drives schools' policy. It is difficult for parents and ultimately it will be damaging for schools in taking this route.
The regulations are a monument to bureaucracy. It is astonishing to have regulations which go into the detail of prescribing the order of examinations in which GCSE results are to be published. Does one have to go after every jot and tittle in regulations such as these and leave nothing for the schools as to how they choose to express themselves. They have to study the regulations to make sure that they have not put an English exam where it should not be, say, after biology rather than at the beginning. Why do these things need to be specified? The situation is the same throughout the regulations. There is far too much unnecessary detail.
I also find it sad that these are such backward-looking regulations. Last week value added examination results were published nationally for the

979
first time. But there is no requirement in these regulations to publish value added data at all. We have the old-style results, but there is nothing about value added. But schools generally have a great deal of value-added information, which would be of great interest to parents beyond the examination results published in the league tables. If we had value-added results on the same basis as the publication of straight examination results published by schools, parents would have a great deal more information about how schools were performing in individual subjects and a greatly improved ability to compare schools, particularly when they have different catchment areas because the raw figures are always distorted by the quality of intake. But by not providing school by school value added results one is again making things much more difficult for parents seeking to choose between schools.
My own particular hobby-horse is the Internet. The year 2005 is supposed to be the time when we have electronic government. The composite prospectuses are to be published by local education authorities. They cannot pretend that they do not have the money and that they are not on the Net. The prospectuses do not have to be published on the Net or made available in an electronic form, yet nothing is being done to make it easier for parents to gather information on schools and compare them. It is astonishing how backward-looking the Government are and how full of froth and air on electronic government when the chance occurs to put something into practice. There is not even a requirement to publish e-mail and web addresses for schools. I find that astonishing and extremely disappointing.
Lord Graham of Edmonton: My Lords, I am grateful to the noble Baroness, Lady Blatch, for drawing attention to the absence of my colleagues. They have been invited to No. 10 in order to tell the Prime Minister many things. I never intended to go. The first time I went there was in the company of Pierre Trudeau, John Conteh and Robert Morley. I am sure that my colleagues who have gone to No. 10 tonight will have an equally good evening.
The intriguing thing is that although my colleagues are absent, how is it that 25 Members of the Conservative Benches are here for regulations of this kind?
Lord Pilkington of Oxenford: My Lords, I am grateful to the noble Lord for allowing me to reply. I am surprised that he asked that question coming, as he does, from the same city and when he knows the disaster which will occur to parents choosing a school. He and I had the advantage of a system where he went to a grammar school as I did. Why does the noble Lord believe that we should not worry about this matter?
Lord Graham of Edmonton: My Lords, one is always looking for pegs on which to hang a speech. I come from Newcastle upon Tyne and I was born on Scotswood Road. I passed the 11-plus to go to a
980
secondary school. It was not a secondary modern. I went to an elementary school and then passed the exam. But because my dad was means-tested and I was the eldest of five kids, I could not go. Two years later I got the chance to sit an examination to go to a technical school. I passed that exam, but I could not go. It was only when the Open University arrived in the late 1960s that I had the opportunity of testing what I had always felt—that I had a degree in me. The noble Baroness, Lady Carnegy, had the same privilege as I did to sit on the governing council of that university and I know that she will speak highly of that body.
Everyone has spoken with a detailed knowledge of the regulations. The noble Baroness, Lady Blatch, has asked many questions. I have every confidence that my noble friend Lord Davies of Oldham will be able to respond to them. I was somewhat puzzled because the first part of her statement deal with the discourtesy contained in the consultation procedure. I shall remind the noble Baroness of many issues raised when she was the Minister on this side of the Chamber. Whenever issues of this kind were raised there were constant complaints about the quality of the consultation which had taken place. I can remember my noble friend Lady Blackstone, my noble friends Lord Peston, Lord Morris and others raising these kind of issues, but not in detail. I think that the noble Baroness, Lady Blatch, was out of order when she talked about the incompetence of the department in this procedure. That may well have been the case, but I do not think that it is on for any Member of this House to castigate the civil servants who are here to look after our interests.
7 p.m.
Baroness Blatch: My Lords, I am grateful to the noble Lord, Lord Graham of Edmonton, for giving way. I cannot remember a single occasion since I have been a Member of this House when only 25 days were given for a consultation process. Nor can I remember such arbitrary handing out of the documents to be considered, which will impact on every parent and child in the land.
Secondly, I was not looking for a debate on which to hang my speech. I have spent a lot of time this weekend that I would rather have spent with my daughter working on these documents. It has taken a lot of hard work, and I positively resent what the noble Lord, Lord Graham of Edmonton, has said. We care about this issue passionately. If the noble Lord, Lord Graham of Edmonton, goes back to the statute book, he will find that I had this kind of debate when the Bill was going through Parliament.
Finally, when I have to make three calls to the admissions section of a department which professes not even to know what I am asking, I have the right to call that incompetent.
Lord Graham of Edmonton: My Lords, I was referring to my speech, hanging upon the peg given by the allusion that I was an ex-grammar school boy. I was not. On the competence of the department, I have no doubt that the Minister who is here to defend the department will have answers to all those questions.
Forty years ago tonight, I was leader of Enfield council. During that period, I had the pleasure of serving on the governing body of a local school with lain McLeod. He and I had a good rapport on all matters relating to the London borough of Enfield. In the middle and late 1960s, we were plunged into the process of comprehensive education. There is a great deal of understanding across the Chamber—but not with the noble Baroness, Lady Blatch—about the difficulties of managing a situation to which Enfield is no stranger. Because we have some excellent schools and because of the Greenwich decision, it is possible for pupils to have places in Enfield schools to the detriment of Enfield parents who wish their children to go there. That is a fact of life. It is not made any easier by the language used by the noble Baroness, Lady Blatch, this evening.
Some Enfield children are unable to go to Enfield schools because children from Barnet, Haringey and Waltham Cross have made a case to go to them. The Latymer School Edmonton in Enfield is a first-class school, which was top of the recent published lists because of the quality of its education and results. I simply say to the noble Baroness, Lady Blatch, of course she is the master of her own language, but it does no good in trying to get an understanding, not only from the Ministers but from the people out in the country, when she castigates the decisions that have been made.
The noble Baroness, Lady Blatch, talked of the simplicity with which these matters could have been put right. In my experience, which is not as great as that of the noble Baroness, Lady Blatch, or of many others, it is a constant problem. Some thirty years ago, as a Member of Parliament, parents would plead with me that their child deserved a place in a certain school. It was impossible.
The authority in Enfield has changed hands—it now has a Conservative majority. The same kind of problems and anguish that were visited on Enfield parents in the past few years will continue because there are far too many children for the places available. We will hear from the Minister on the detailed points, but I do not think that the debate or the issue is enhanced one bit by the language used by the noble Baroness, Lady Blatch.
Lord Mowbray and Stourton: My Lords, I have always regarded the noble Lord, Lord Graham of Edmonton, as a friend of mine, and I have great admiration for him, but I think he is being a little unfair w hen he says that we are looking for something on which to hang a speech.
982
I do not like making speeches; I bored your Lordships in years gone by when I was younger, time and time again, and I do not want to bore you again, but I feel very strongly about the Christian ethos in our schools. For quite a long time, when Roman Catholics were a small minority, I and my family fought for the right for Catholics to be educated in Catholic schools. We fought hard and have been very successful. I am occasionally asked to make the odd speech and give the odd prize at the odd Catholic school, so I know a little about this. The bishops of the Anglican and Roman Churches seem to have been hustled—that is the only word that I can think of—into agreeing something which, if they think about it, cannot be right. I find it very hard to understand that a school should have to take children without going into the ethos of their backgrounds.
One of the troubles in this country today is that so many people and so many children quite often do not realise what is wrong and what is right. It could be said that I am out of touch but, as your Lordships know, there are people who think some things are quite all right which we were brought up to think were sinful and wrong, and we know it in our hearts.
We will never get back a question of ethos if we once lose it. To think of denying it to these schools by trying to hustle them to stop interviews is quite impossible, as people in this House, with all their background knowledge, common sense and Christianity, should realise. Indeed, I do not mind what religion people follow—believing and following one's beliefs are the only things that are important. But to tell me that we are looking for something to hang a peg on is not good enough.
Lord Desai: My Lords, I am happy to say that I was not educated in this country, so I do not really have to display the variety of backgrounds that we have seen. I could have come from or not gone to one school or another. But in the 38 years that I have lived here. I have found education, especially school education, to be the most class-ridden and prejudice-ridden subject that I have ever come across. I am astonished by that. It is not as if the old education system—whatever that was—of the glorious 1950s, 1960s and 1970s actually did the country much good. That was when we were known as the sick man of Europe. Therefore, whatever ethos or manners that the school system taught, it was a derided, class-ridden system that harmed the country no end.
In trying to repair the system, we sometimes need elaborate regulations. I am surprised that people say that these are very elaborate—that is the legalese that we have to use. We pass Acts that contain Henry VIII clauses which require us to lay orders before Parliament, and it is not surprising that those orders are very detailed. That is the way that the law functions.
I refer to some recent reforms which sought to remove burdens by annulling certain regulations. I refer to the Delegated Powers and Regulatory Reform Committee and documents of up to 300 pages in length that were drawn up just to keep pubs open on New

983
Year's Eve. Why do we draw up such documents? I do not know, but if you are going to do it, you must do it properly.
I have read the regulations and I wish to comment on them in some detail. They have one common theme; that is, to try to simplify the admissions procedures for primary and secondary schools. Many people talk about parental choice. It is a fallacy to believe that somehow choice can be permitted in a system in which the market does not apply. We are not talking about buying cheese or bananas but rather school admissions. If, as my noble friend Lord Graham said, a school is popular, it cannot raise the price of admission as that system does not apply in the schools we are discussing. There must be some kind of rationing mechanism in order to allocate places in schools where too many children apply for the available places. How can one do that? Obviously, one cannot do it without consulting other schools. As has been said, a popular Church school in west London is in consultation with 40 different local authorities surrounding it. That is the way such matters should be handled. We want to be just to the people who want to send their children to the best schools, but without being unjust to other people who also want to send their children to those schools. That is a difficult outcome to achieve.
I believe that the admission forums mentioned in Regulation No. 2900 are an excellent idea. The regulation seeks to co-ordinate admission policies of different schools in a wide catchment area to take into consideration the needs of an entire community. If a child cannot go to his school of first choice, the knowledge of all those running the various schools in the community, that of the local education authority and so on, can be co-ordinated to offer the second best choice to the particular pupil concerned. I do not see what is wrong with that as it is obvious that not every pupil can attend their school of first choice in a system which is based on rationing and not on the market. If people are suggesting that we abolish rationing and completely privatise primary and secondary education, that is a different matter. One hears stories of young mothers with small children staggering to a church to attend services when they are not interested in the relevant religion. They attend the services as that makes their child eligible for admission to the relevant Church school. Some people attend such services not through religious conviction but because they want their children to jump the admission queue for a certain school. Distortions occur when people claim to belong to certain religious sects when they are interested only in sending their children to certain schools. We have clearly reached a point when the present system will no longer function unless we take great care to improve it. As I say, I genuinely believe that the admission forums mentioned in Regulation No. 2900 are an excellent idea.
As the noble Baroness, Lady Sharp, pointed out, an interesting aspect of the matter is revealed in the relevant Explanatory Note. Like the noble Baroness, I prefer to use the Explanatory Note to Regulation
984
No. 2900 as a background to my remarks rather than the body of the regulation itself. It states that one of the roles of an admission forum is,
"to monitor the admission of excluded children, looked after children, children with special educational needs and children who arrive outside the normal admission round; and to consider any other admissions issues arising".
When we talk about admissions we talk about parental choice, Church schools and grammar schools as if the only thing that the education system is supposed to do is to cater for those who are considered to be the brightest and the best and the rest can go hang. As my noble friend Lord Graham succinctly said, he was not given the best chance in his early days as, due to the way in which the education system was structured, it did not give the bulk of the people the best chance. What we are trying to do is improve everyone's chances.
Noble Lords may wonder why I am discussing secondary school education as I do not usually speak on that matter. I lived in Islington for 25 years and was chairman of the campaign for the advancement of state education. I used to publish a magazine from my house to advance the case of state education. Islington co-ordinated the running of secondary schools to improve quality. I was also chair of Islington Labour education group for a number of years. All my children attended local state comprehensive schools. I took a great interest in secondary schools as a manager and as a governor. Therefore, I am not a johnny-come-lately to the secondary school debate.
As I say, the admission forums are a good mechanism to look after the interests of excluded children. I am also impressed by Regulation No. 2899, which is inclusive, as the noble Baroness, Lady Sharp, said. I refer to appeals against expulsion. I refer to the welcome procedure outlined in the Explanatory Note which enables parents,
"to appeal against school admission decisions, including decisions refusing permission to children already admitted to a school to enter the school's sixth form…to appeal against the authority's decision to admit a child who, at the time decision was made, has twice been permanently excluded from a school".
Exclusion from schools has made the headlines in recent times. It is to be welcomed that the Government are laying down detailed instructions on the matter.
I refer to the co-ordination of admissions to primary schools. I do not see what is wrong with that. I refer to the Explanatory Note to Regulation No. 2903 which states that local education authorities,
"are to refer their proposed schemes to the Admission Forum established for their area and to have regard to the Forum's advice or recommendations before consulting each governing body to whom a scheme is to apply".
That is a welcome proposition which will improve the way in which our schools are run. I refer also to the welcome proposition that local education authorities are to,
"designate the single day in each year on which their determination as to the single offer of a primary school place which the parents of children in their area are to receive is to be communicated".
Those are good policies.

985
Regulation No. 2901 concerns how objections to admission arrangements should be dealt with. The Explanatory Note to Regulation No. 2901 states,
"in circumstances where the admission authority for a school have determined an admission number for any relevant age group which is lower than the number indicated by the net capacity assessment method set out in guidance".
It is interesting that that relates to the parents' right to object, where parents may think that they have been unjustly handled. If the school has capacity but someone is not admitted, the parents are right to object because, after all, total capacity is the only rationing criterion one can use when prices cannot be used.
There are a number of good detailed recommendations that we should definitely welcome because they will immensely improve the state of our schools.
The Earl of Listowel: My Lords, I shall speak briefly on a particular point arising from an observation in the letter of the angry head teacher quoted by the noble Baroness, Lady Blatch. Before I do so, I thank her for the opportunity to consider this important matter again.
I spoke to the head teacher of the Star Primary School in Newham near Canning Town this morning. She had taught for 30 years and been a head teacher for 18 years. From what she said, my clear impression was that she felt that head teachers were more in control now than they had been in the past. If I understood her correctly, she put that down to their having more control over the spending of the money that they received.
That may have been peculiar to that head teacher's position, because she was in an education action zone and various other zones. It is a deprived area—it has a high level of free school meals—so it is a beneficiary of many additional funding streams. Perhaps there is another issue about increased regulation if head teachers are more in control of funding. I look forward to hearing in the debate some more clarification on that subject.
Lord Brennan: My Lords, the small group of my Labour colleagues who will speak tonight will enjoy two distinctions in the parliamentary history of this House. The first will be our unique numerical presence—small but powerful—and the second will be the fact that each of us, at different lengths, has something important to say.
I speak as a volunteer, not a conscript, to make three points. Access to education is the objective of all decent families for the benefit of their children, but that access needs to be achieved in a way that balances the autonomy of schools and the ability of people to exercise a choice to try to get into good schools.
First, I am dismayed by some of the comments made about the faith background to the regulations and how they may affect faith schools. I attended the debate on the Bill on admission forums, and I do not recall anyone suggesting that the relevant part of the Bill or
986
the regulations would act as a vehicle to undermine, in broad terms, the ability of faith schools to regulate the number of pupils from their own faiths.
Baroness Blatch: My Lords, that is why the schools are also very cross. I too was present at those debates, and I think that I supported the noble Lord in what he said then. However, I can tell him that nothing in those debates indicated that interviews as part of the process of faith schools were to be abolished. One of my questions is to ask where in the legislation is the basis for banning interviewing as part of the process, rather than it simply being in the code of practice.
Lord Brennan: My Lords, to return to the point that I was making, I do not regard the regulations as some back-door opportunity to subvert the right of faith schools to regulate in decent proportion those numbers of children in their schools from their own faiths. If I am wrong, I invite the Minister so to state. If I am right in thinking that the regulations are not such a back door, I am sure that he will make that abundantly clear.
My second point goes to the issue of interviews. I understand from my own experience that, in times past, admission to faith schools has not been solely determined by interview. Therefore, we do not have a state of affairs in which an existing system of admission by interview is being abolished, to repeat the phrase used by the noble Baroness.
I wish to make a practical point as a lawyer. It seems to me an illusion to think that faith schools throughout this country can manage entry by interview alone. The numbers will be enormous, and the practicality of it fraught with difficulty for the schools and the teachers. As a lawyer, I am afraid to say that the interviews, especially for those who were disappointed, would become the vehicle for appeals and, perhaps even worse, judicial review.
It is an ideal that children and their families should be interviewed, of course, but it is hopelessly impractical. I simply do not recognise the validity of any suggestion that the bishops in my Church, the Catholic Church, have deserted their faith schools or been hustled into something that they do not approve. That is simply not the case as I understand it.
On my third proposition, I invite the Minister to give his express views. Autonomy for schools and choice for parents need to balance, in terms of regulation. The one must be fairly set against the other. I must confess that having nine sets of regulations seems a volumetrically excessive attempt to achieve that balance. They are so complex in their detail as to suggest that there may be trouble with them. I invite him to confirm that, in view of the comments made by the Opposition, in the course of the coming year the implementation of the regulations will be reviewed, and that changes will be made if necessary In introducing such a new system of debate about admissions, it would be wrong to give the impression to people that the system was fixed and irrevocable.

987
Those are my three points. First, will the Minister confirm that the standards of faith schools will not be subverted by the regulations? Secondly, interviews are not the only route. Thirdly, in due course the effect of the regulations should be reviewed. The objective that I first described should be the objective at the end of such a review. Is the system working fairly, so that people are being given a choice—so that parents who want their children to go to faith schools know that they will go to such schools? I would not dream of voting for any regulations that subverted that democratic principle.
Lord Pilkington of Oxenford: My Lords, I share the noble Lord's view. I do not think that anyone said what he suggested they had done of Roman Catholic bishops; it was that they did not have much time. I am sure that he will support me when I say that Roman Catholic parents who cannot afford independent schools should have the same rights as parents who can afford independent schools to send their children to the faith school of their choice.
Lord Brennan: My Lords, I heard the intervention, but I must confess that I did not entirely follow it. I understand that the present set of regulations seeks to allow a reasonable opportunity for parents to make application to the school of their choice. Irrelevant to that is the ability to pay or not, which I am afraid reflects the economic facts of life.
7.30 p.m.
Lord Pilkington of Oxenford: My Lords, I do not want to help the people in Downing Street any more; many others have done that for them. My point was that a person who could afford independent Catholic education could send their child to Downside, Ampleforth or wherever. However, if the child's education were dependent on a chit from the parish priest, very devout Catholics could fail to get into the state school of their choice. That is where I support the noble Lord on review.
Lord Brennan: My Lords, I confess that I still do not understand the comparison between a rich person who can pay for their child to get into a school and those who are not rich and need to approach a priest for a chit, as the noble Lord called it. The fact is that in times past entry to Catholic schools and other faith schools has worked with reasonable efficiency. I do not accept that the regulations are cloaked with the dire effects that Opposition Members have suggested.
Baroness Park of Monmouth: My Lords, I have listened to this debate with great interest. Everyone seems to agree for different reasons that this is an important issue. It is therefore difficult to understand—this is the point that still worries me—why there was not time for consultation, particularly of the people who would have to operate the
988
arrangement and those who will have to suffer from it or—this may be so—benefit from it. If this is worth doing, it is surely worth proper consultation.
Lord Davies of Oldham: My Lords, I am grateful to all noble Lords who participated in this debate. It is far better to be here than at some rumoured party at No. 10. I have enjoyed every moment of the debate.
I hope to respond adequately to the wide range of points. I shall begin with consultation, which was raised last—it was also raised first, by the noble Baroness, Lady Blatch. I shall endeavour to answer the wide range of questions raised by the noble Baroness. Should I fail in any respect, I assure her that I shall write to her with the answers to any questions that I may have omitted to answer. At the start of this debate, I was in the blissful state of hoping that we were engaging in a limited debate to which I could give extensive time and consideration to the noble Baroness's every question. However, she will recognise that I should need to speak for three-quarters of an hour to respond adequately—I must respond to a number of other contributions—which would bring considerable criticism on me.
I shall deal first with consultation. We sought to ensure that admissions for 2004 should work on the basis of the new arrangements. Working back from 2004, we are fiercely constrained by parliamentary procedures and time limits in terms of the stage at which we must table the code. Our difficulty involved the 40 days of parliamentary time available for praying against the code. I give a straightforward apology to the noble Baroness, who should have been informed that the code was to be laid. I gather that such an undertaking had been given but it was not fulfilled. That is a straightforward apology.
It was necessary to lay the code on 15th November in order to meet the parliamentary timetable, and it was up to the Opposition in this place and another place to pray against the code if they wanted to do so. Laying the code at that date in order to get the principles in place for January and therefore the implementation of the new arrangements meant that the timetable for consultation was more limited than we should have wished. We recognise that that placed considerable pressure on people who wanted to respond.
We set out so far as we could to meet the needs of those who deserved to have been, and should have been, consulted. We were aware of those who have a direct interest in the matter. We targeted admission authorities because they would have the most direct interest in the changes to the regulations, and we consulted LEAs as the admission authorities of community and voluntary controlled schools. We consulted a representative sample of foundation and voluntary-aided schools that were responsible for admission to their schools, and a smaller sample of other non-admission-authority schools. We are open to the criticism that we did not have a consultation process that meant that every school in the country was consulted directly. That would have been a gargantuan task. Our process of consultation involved

989
all those most directly affected as admission authorities. We did the best for them in our time frame to ensure that the consultation was carried out.
We acknowledge all of that. The Act was passed, as noble Lords will recall, in July last year. The time frame in which to implement the regulations has been more limited, which imposes constraints. As the noble Baroness, Lady Sharp, suggested, the regulations and the code fulfil the concepts, ideas and themes of the Bill that was before the House last summer and which passed into law at the end of the summer. She said that within the framework there now appeared to be only a reference to local education authorities, rather than to sub-divisions of such authorities, which would be more appropriate in terms of admission arrangements. I give her that assurance. We recognise her example from the Guildford area and that, more widely across the country, it might be appropriate if the admission authorities were a sub-division of the local forum and not the local authority in total.
We are dealing with a code, the regulations prior to the code and a framework that was embodied in the Act, which was duly passed by both Houses. We are committed to ensuring that the admission arrangements work to the best possible extent for all parents and children in an area. That is our objective.
Inevitably, the moment at which one uses the word "admission"—to say nothing of "selection", which was raised earlier in our debate—the House responds with considerable passion; those are fundamental issues in education. That is perhaps why we had a larger number of participants in this debate than would normally be expected for such orders. Views have been expressed with considerable passion. I respect those views entirely; I entirely respect the views of my noble friends Lord Graham and Lord Desai, who emphasised why we regard certain processes of selection as unacceptable. However, that does not apply simply to us; I need not reiterate the old and obvious fact that it was Conservative administrations who ended selection in more authorities than Labour governments have done. There is consistent emphasis from the Conservative side on choice, but they also know that parental choice does not hold sway in relation to selection but the decision of the school about whether the student should be accepted by the school authority.
There was a word from the noble Baroness, Lady Blatch, about headmasters and headmistresses not being involved in the selection process. That is merely because the regulation refers to the legal concept of the governing body being responsible as a legal entity for admission. The headmaster and headmistress play their part within the framework of the governing body and under the arrangements that the governing body makes.
Baroness Blatch: My Lords, the code states that head teachers have no role in the admissions process. Those are the words in chapter 7 of the code, and there is a full stop at the end of the sentence.
Lord Davies of Oldham: My Lords, the code seeks to emphasise there that we do not expect individual
990
students to be interviewed by head teachers and then be selected by them. Heads play their part in governing bodies. It is absolutely clear that heads are involved in a school's admission policy. How could they possibly exercise their dual authority and responsibilities to a school if they did not influence the governing body significantly in relation to the school's admissions process?
Another dimension of this debate which aroused considerable passion was whether the regulations suggested to Catholic authorities that interviews were no longer permissible. That is not the case with regard to the ethos of Catholic schools. The Government were approached by the Catholic authorities, which, like the Anglican Church, took the view that interviews were no longer regarded as the best basis for admission to faith schools. The code merely responds to that initiative. As the noble Lord, Lord Mowbray, indicated, better ways exist than interviews to ensure that the ethos of schools is protected and there are better ways of ensuring that the requisite information is received in evaluating the student. I give way to the noble Baroness.
Baroness Blatch: My Lords, I am grateful to the Minister. Of course, everyone involved in the process must have regard to the code. The code refers to all the Acts of statute that must be obeyed and by which everyone is obliged to act. Where in statute does it say that interviews cannot, should not and may not take place? The code cannot ban them; they must be banned in legislation. I cannot find that in the regulations and I do not believe it was set out in the Bill that became an Act. Therefore, will the noble Lord tell me which law a school will be breaking if it includes interviews as part of its admissions process?
Lord Davies of Oldham: My Lords, the school will be offending the code, which derives from last year's Education Act. It was not the first education Act to have implied a code of this kind, and this is not the first code that we have had. The code is a derivative of its predecessor, which embraced a large number of the same concepts. For a considerable period of time—ever since the introduction of the School Standards and Framework Act 1998—we have had to have admissions procedures.
We are cogniscant of the fact that admissions procedures arouse controversy. Nevertheless, 96 per cent of parents are offered a place for their child at a school for which they have expressed a preference. That is good news but we know that we can do better than that. Our research shows that parents find the process of choosing and applying for school places less stressful and easier when admission arrangements are co-ordinated. That is the basis of the new code and that is why it was presaged in the Act passed last year.
It was felt that, through the construction of admissions forums, more effective communication could take place with people in a locality so that they would better understand the co-ordination of admission arrangements. That would result in one obvious benefit. Parents fill in one form for all the

991
available schools and they include their order of preference. Instead of parents having to weigh up whether or not a school is likely to offer their child a place, holding that position against an alternative choice and often being in considerable distress in balancing one possibility against another, we are now ensuring that there is co-ordination in the admission arrangements of a local authority area. That benefit from the code was presaged in the Bill which became an Act and it was generally approved of in the House.
We recognise that a number of questions have been raised about many other parts of the regulations. If the noble Lord will forgive me, I have a considerable argument to deploy in respect of the admissions forums regulations. I shall also seek to answer the questions properly addressed to me, many of which came from the noble Lord's Front Bench. I emphasise that the admissions forums regulations make provision for the establishment of forums, which will ensure that co-ordination exists across the local areas. I emphasise once again to the noble Baroness, Lady Sharp, that local devolution will ensure that such areas can be smaller than the local authority.
With regard to the question raised by the noble Baroness, Lady Blatch, about co-ordinating arrangements and the legal obligations in respect of parents' preferences, of course the obligations will be honoured. Parents express a preference. The LEA simply sets up a co-ordinating scheme in deciding which single offer should be made where a child is eligible to be admitted to more than one school. Of course, a place will usually be offered at the school which the parent has ranked the highest. That is why the majority of places across the country are allocated according to the first choice of the parents involved. Controversy inevitably occurs where that does not obtain.
There will also be a single offer date. All parents will find out the results of their application and will receive an offer of a place at the same time. That is significantly better than our current arrangements and is the basis upon which the code is established.
The regulations also clarify the conditions under which a proposal to vary an admission number, following approval of statutory appraisals, need not be referred to the schools adjudicator. Therefore, we are ensuring that the admission arrangements for each school and the numbers involved are public and are recognised as part of the overall provision for the local authority.
The objection to the adjudicator's admission numbers—a matter addressed to me by the noble Baroness, Lady Blatch—replicates the existing provision whereby parents can object to standard numbers variations through the statutory proposal system. The adjudicator will consider such an objection, as he does all others. Therefore, we are not changing the role of the adjudicator with regard to the crucial matter of the numbers which each school makes available.
992
The noble Baroness, Lady Blatch, also raised questions on a number of other issues. I shall deal with one aspect, which my noble friend Lord Brennan emphasised strongly. The noble Baroness also referred to the article in today's Daily Telegraph. That is not based upon fact. Nothing is imposed by this Government that makes issues connected with the interview process compulsory for Catholic schools. We have been involved in consultation on the best procedures for selection and for ensuring that the ethos of schools is maintained.
The noble Baroness, Lady Blatch, also asked about the adjudicator's powers so far as concerns grammar schools, colleges of technology and academies. The powers of the adjudicator are not extended by these regulations; it is not possible to remove selection. As she recognises, the only way that selection can be removed is through a ballot sought by parents—a process which, as she knows only too well, thus far has been pursued on only one occasion.
The noble Baroness also raised the question of additional burdens on schools and reference was made to the LEA composite prospectus. That is not an additional burden and there is no new requirement here. LEAs already publish prospectuses with all their schools' admissions arrangements and this regulation merely updates that.
I take on board the point made by the noble Lord, Lord Lucas, that we should have additional information on the basis of "value added" with regard to schools. We could not make that provision now because at present we do not have a full range of value-added statistics. The noble Lord will know that in certain areas the statistics relating to schools were first published only recently. However, in due course, value-added information will become available and the noble Lord is right to say that it should be made available. He is also right that we should encourage the development of modern technology, such as websites, so that parents can consult and obtain the information that they need on-line. All that lies a little way in the future. However, we recognise the validity of the case that the noble Lord makes and shall seek to respond to it as and when we can.
Lord Lucas: My Lords, the first question that I asked of the Government when they were first elected in 1997 was whether they would reply to my Written Questions by e-mail. I received a similar reply to the one that the Minister has just given. They still cannot do it. I hope that the Department for Education and Skills can do better.
Lord Davies of Oldham: My Lords, I take on board what the noble Lord has said. I have heard him mention that he received such a reply before. I was not seeking to repeat it verbatim. I was expressing the intention that as much as possible we seek to make education information available on-line. He will be aware of the enormous drive to put computers in schools. We shall make the information available to parents as rapidly as we can, although he will recognise

993
that the quality of the information with regard to value added requires a substantial amount of work. For that reason it is bound to come out in discrete areas.
A noble Lord: Is the noble Lord going to sit down?
Lord Davies of Oldham: My Lords, as ever I am seeking to be fair to participants in the debate as well as to colleagues who have joined us a little late. I am mindful of the fact that if I were unfair to the noble Baroness, Lady Blatch, in my attempt to answer her questions, she would upbraid me the moment she gets to the Dispatch Box, so perhaps I am saving time by answering the questions as fully as I can.
We have had an interesting debate on the code. As I have indicated, we would have wanted wider consultation before the introduction of the code. We did our best to consult all the major parties. The noble Baroness always makes the point that all schools should be consulted on everything at all times, while at the same time saying that all schools should have the minimum amount of bureaucracy, mail and paper coming through their doors. I shall leave that small contradiction for another day.
I appeal to the House to recognise that in the code the Government are implementing legislation that was duly considered at great length last year—I participated in one or two of the debates—and passed by this House and the lower House. The code merely implements the principles that that legislation brought into force.
Baroness Blatch: My Lords, there are many happy bunnies on the Government Back Benches. They have all been to their party—
A noble Lord: My Lords—
Baroness Blatch: My Lords, perhaps I can tell the noble Lord a story. I was approached by the Minister's Chief Whip and asked to keep all the speeches on this side of the House to a minimum. We tried to arrange it so that I would speak, then my noble friend Lord Pilkington, followed by perhaps one or two others. I was told that the speech from the Front Bench opposite would be brief so that everyone could go to their party uninterrupted. However, there has been the most successful filibuster that I have ever witnessed.
Lord Davies of Oldham: My Lords, perhaps the noble Baroness would recognise that a 21-minute opening speech may also be considered part of the filibuster.
Baroness Blatch: My Lords, the Minister and the Chief Whip knew that there were nine regulations and a code of practice and that they could not be dealt with quickly. I could have talked for another 20 minutes because I am unhappy about so much in the regulations.
I agree with my noble friend Lord Pilkington that the consultation was a disgrace. It was not right, at the beginning of term, to give primary and secondary
994
schools nine regulations and two voluminous codes of practice to respond to in 25 days. The Minister has just told my noble friend Lady Park of Monmouth that the reason for that was to put the regulations in place by 2004. The Minister's code of practice says that the LEAs will be obliged to have co-ordinated schemes for the 2005 intake, so there was no hurry for the consultation to take place. As a result of consultation the time was extended, so they could have had more time and it would have been possible for there to be a better response.
I know that the noble Lord, Lord Brennan, speaks for the Catholic Church, and for Catholic church schools. I implore the noble Lord to talk to some of the heads, particularly of the London schools, which would not entail a long journey. They are outraged because they did not know about this matter. I was one who was told that the code had not been published when it had been. The heads did not know about it and when they looked at the website it was not there. They regard the matter as important for some of the reasons given by my noble friend Lord Pilkington. They are very cross that a response was given by the head of the Catholic Church and the head of the Anglican Church without any consultation with them whatever. I speak for them and I believe that they should be supported. There is no one else to speak up for them. The Government will not, nor will the Liberal Democrats, so I shall; I am not ashamed to do so.
The Minister made one point that I welcome. He said that the article in the Daily Telegraph was not about making anything compulsory for faith schools. That is not the case. I welcome that. The article was written because John Clare of the Daily Telegraph, myself and the heads of the faith schools believe that from now on they will not be allowed to interview for admissions. That is not in law; it is not in the regulations; it is in the code of practice only and codes of practice are not law. They explain the practice and they refer to statutes but they are not law. Therefore, it will be possible for faith schools, if they wish, to have regard to the code of practice and to take the view that admissions should form part of their process. I welcome what the Minister said, that nothing in that is compulsory and therefore we need not be concerned.
The Minister did not say what are the limited powers of adjudicators or what powers they had over grammar schools. It would be helpful if he could write to me on that point.
I suggested a way of keeping down bumf for schools: a letter to all schools and all relevant bodies telling them that there were to be laid before Parliament nine regulations and two codes of practice and that if they were interested they could gain the information from the website—it would be helpful if that were continuously on the website—and if they wished they could have hard copies. The Minister said that the relevant people who had a direct interest were informed, but that is not right. The National Grammar Schools Association was not informed and a large tract of the regulations deals with admissions to grammar schools.
The answer was extremely disappointing so I wish to seek the opinion of the House.
7.58 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 70; Not-Contents, 130.

Division No. 1

CONTENTS

Anelay of St Johns, B.

Luke, L.

Arran, E.

Lyell, L.

Astor, V.

MacGregor of Pulham Market,

Blackwell, L.

L.

Blaker, L.

Mar, C

Blatch, B.

Marlesford, L.

Bridgeman, V.

Mayhew of Twysden, L.

Brooke of Sutton Mandeville, L.

Montrose, D.

Brougham and Vaux, L.

Montrose, D

Burnham, L.

Mowbray and Stourton, L.

Byford, B.

Murton of Lindisfarne, L.

Caithness, E.

Newton of Braintree, L

Carnegy of Lour, B.

Noakes, B

Chalker of Wallasey, B.

Northbrook, L.

Colwyn, L.

Norton of Louth, L.

Cope of Berkeley, L.[Teller]

O'Cathain, B.

Courtown, E.

Park of Monmouth, B.

Craigavon, V.

Pearson of Rannoch, L.

Dean of Harptree, L.

Peel, E.

Denham, L.

Pilkington of Oxenford, L.

Dixon-Smith, L.

Renton, L.

Eccles of Moulton, B.

Roberts of Conwy, L.

Eden of Winton, L.

Rotherwick, L.

Elliott of Morpeth, L.

St. John of Bletso, L.

Elton, L.

St John of Fawsley, L.

Feldman, L.

Seccombe, B.[Teller]

Fookes, B.

Selborne, E.

Gardner of Parkes, B.

Shaw of Northstead, L.

Geddes, L.

Skelmersdale, L.

Hanham, B.

Stewartby, L.

Henley, L.

Strathclyde, L.

Home, E.

Trefgame, L.

Howe, E.

Vivian, L.

King of Bridgwater, L.

Waddington, L.

Lucas, L.

Wakeham, L.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Carlile of Berriew, L.

Addington, L.

Carter, L.

Alli, L.

Chan, L.

Andrews, B.

Chandos, V.

Archer of Sandwell, L.

Christopher, L.

Ashley of Stoke, L.

Clark of Windermere, L.

Ashton of Upholland, B.

Clarke of Hampstead, L.

Bach, L.

Cohen of Pimlico, B.

Barker, B.

Corbett of Castle Vale, L.

Bassam of Brighton, L.

Crawley, B.

Berkeley, L.

Davies of Coity, L.

Bernstein of Craigweil, L.

Davies of Oldham, L.

Borrie, L.

Dean of Thomton-le-Fylde, B.

Bragg, L.

Desai, L.

Brennan, L.

Dixon, L.

Brooke of Alverthorpe, L.

Dormand of Easington, L.

Brookman, L.

Dubs, L.

Burlison, L.

Eatwell, L.

Campbell-Savours, L.

Elder, L.

996

Evans of Parkside, L.

Mackie of Benshie, L.

Evans of Temple Guiting, L.

Mallalieu, B.

Evans of Watford, L.

Masham of Ilton, B.

Farrington of Ribbleton, B.

Massey of Darwen, B.

Faulkner of Worcester, L.

Merlyn-Rees, L.

Filkin, L.

Miller of Chilthorne Domer, B.

Fyfe of Fairfield, L.

Mitchell, L.

Gale, B.

Morris of Aberavon, L.

Gavron, L.

Morris of Manchester, L.

Gibson of Market Rasen, B.

Nicol, B.

Gilbert, L.

Orme, L.

Gladwin of Clee, L.

Patel of Blackburn, L.

Golding, B.

Pendry, L.

Goldsmith, L.

Pitkeathley, B.

Gordon of Strathblane, L.

Plant of Highfield, L.

Goudie, B.

Prys-Davies, L.

Gould of Potternewton, B.

Radice, L.

Graham of Edmonton, L.

Ramsay of Cartvale, B.

Grocott, L.[Teller]

Randall of St. Budeaux, L.

Rea, L.

Hardy of Wath, L.

Rendell of Babergh, B.

Harris of Haringey, L.

Rogers of Riverside, L.

Harrison, L.

Roper, L.

Hayman, B.

Sawyer, L.

Hilton of Eggardon, B,

Scotland of Asthal, B.

Hogg of Cumbernauld, L.

Sharp of Guildford, B.

Hollis of Heigham, B.

Shutt of Greetland, L.

Howie of Troon, L.

Simon, V.

Hoyle, L.

Simon of Highbury, L.

Hughes of Woodside, L.

Smith of Clifton, L.

Hunt of Chesterton, L.

Stallard, L.

Hunt of Kings Heath, L.

Symons of Vernham Dean, B.

Irvine of Lairg, L.(Lord

Taylor of Blackburn, L.

Chancellor)

Temple-Morris, L.

Jones, L.

Thomas of Macclesfield, L.

Jordan, L.

Thornton, B.

Kennedy of The Shaws, B.

Tordoff, L.

King of West Bromwich, L.

Turnberg, L.

Layard, L.

Varley, L.

Lea of Crondall, L.

Walker of Doncaster, L.

Lipsey, L.

Warwick of Undercliffe, B.

Listowel, E.

Whitaker, B.

Lofthouse of Pontefract, L.

Wilkins, B.

Macdonald of Tradeston, L.

Williams of Mostyn, L.(Lord

Mcintosh of Haringey, L.

Privy Seal)

[Teller]

Winston, L.

MacKenzie of Culkein, L.

Woolmer of Leeds, L.

Mackenzie of Framwellgate, L.

Young of Old Scone, B.

Resolved in the negative, and Motion disagreed to accordingly.

Education (Determination of Admission Arrangements) (Amendment) (England) Regulations 2002
8.9 p.m.
Baroness Blatch Baroness Blatch had given notice of her intention to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 2nd December 2002, be annulled (S.I. 2002/2996).
The noble Baroness said: My Lords, there is a sore temptation to help all noble Lords to work off their wonderful party this evening, but I shall resist it.
Motion not moved.

Education (School Information) (England) Regulations 2002
Baroness Blatch Baroness Blatch had given notice of her intention to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 2nd December 2002, be annulled (S.I. 2002/2897).
Motion not moved.

Education (Variation of Admission Arrangements) (England) Regulations 2002
Baroness Blatch Baroness Blatch had given notice of her intention to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 2nd December 2002, be annulled (S.I. 2002/2898).
Motion not moved.

Education (Admissions Appeals Arrangements) (England) Regulations 2002
Baroness Blatch Baroness Blatch had given notice of her intention to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 2nd December 2002, be annulled (S.I. 2002/2899).
Motion not moved.

Education (Admission Forums) (England) Regulations 2002
Baroness Blatch Baroness Blatch had given notice of her intention to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 2nd December 2002, be annulled (S.I. 2002/2900).
Motion not moved.

Education (Objection to Admission Arrangements) (Amendment) (England) Regulations 2002
Baroness Blatch Baroness Blatch had given notice of her intention to
998
Her Majesty praying that the regulations, laid before the House on 2nd December 2002, be annulled (S.I. 2002/2901).
The noble Baroness said: My Lords, I have one opportunity to say my last word. I hope that the Minister will write to me on the points that were not met when he responded to the debate. I hope also that he will correct some of his remarks. As a former Minister, if I gave information that was not correct I was always instructed by the then Chief Whip, my noble friend Lord Denham, to explain why I misled the House. We received information tonight that was incorrect. I would be grateful for a correction.
Lord Davies of Oldham: My Lords, we will of course obey the conventions of the House.
Motion not moved.

Education (Co-ordination of Admission Arrangements) (Primary Schools) (England) Regulations 2002
Baroness Blatch Baroness Blatch had given notice of her intention to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 2nd December 2002, be annulled (S.I. 2002/2903).
Motion not moved.

Education (Co-ordination of Admission Arrangements) (Secondary Schools) (England) Regulations 2002
Baroness Blatch Baroness Blatch had given notice of her intention to move, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 2nd December 2002, be annulled (S.I. 2002/2904).
Motion not moved.
House adjourned at eleven minutes past eight o'clock.