Lords Sitting of 10 March 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 Derby.

Prison Population
Lord Janner of Braunstoneasked Her Majesty's Government:
Whether they expect the prison population in the United Kingdom to rise during the next five years; if so, by what number and proportion; and what steps they are taking to enable the prison system to cope with any such increase.
The Minister of State, Home Office (Lord Falconer of Thoroton): My Lords, the Government will continue to provide the places necessary to accommodate those sentenced by the courts by providing additional capacity together with other measures, including reforms to the criminal justice system. They recognise that they must provide for a prospective increase in the prison population over the next five years. They have already announced plans which will increase the capacity of the prison estate by more than 3,000 by the year 2005–6.
Lord Janner of Braunstone: My Lords, does my noble and learned friend accept that our prisons are dangerously overcrowded and are likely to become more so even with the changes that Her Majesty's Government have in mind? Does he accept that the Prison Service is gravely overstressed and overworked? Does he understand that reforms to ensure that prisons are not filled with people who should not be in prison at all but should be on community service are long overdue? In view of the very serious situation, when can we expect really vigorous action?
Lord Falconer of Thoroton: My Lords, whether or not people should go to prison is a matter for the courts. Serious, persistent and dangerous offences will always merit prison sentences. The prison population at the moment is in the region of 72,000. That is not quite up to capacity. We recognise that we must provide more prison places, hence the announcements to which I referred in my main Answer. The question is not whether community sentences are better than custody but rather what is appropriate for the offence and the offender.
Baroness Gardner of Parkes: My Lords, is the Minister aware of the scheme that has operated since 1999 of the National Grid Transco Foundation whereby young offenders are trained while they are in prison to become engineers or forklift truck drivers? That is having a remarkably good effect with only 6 per cent reoffending among the 94 who have been
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trained to date. Does the Minister think that that is a desirable scheme to help more people to become useful members of society?
Lord Falconer of Thoroton: My Lords, I am not aware of that scheme but my noble friend Lady Ashton is aware of it and informs me that it is extremely successful. Such schemes that try to help people in prison learn a skill and provide them with the means of getting a job when they leave are extremely good. One of the matters on which the Criminal Justice Bill, which is currently going through Parliament, focuses is to make sure that people in custody receive training that will help them not to reoffend when they leave. However, they need support when they leave custody to try to ensure that that happens.
Lord Dholakia: My Lords, does the Minister accept that the rising prison population results in intolerable conditions in our prisons? Will he take into account the anomaly that although the crime rate for certain crimes is falling, the prison population is rising? The latest figures available from the Home Office indicate that the custody rate in Crown Courts for indictable offences rose from 45 to 64 per cent and that the sentence length for adults rose from 21 to 26 per cent. Will the Minister examine where within criminal justice sentencing that anomaly arises?
Lord Falconer of Thoroton: My Lords, as I indicated, the number of people going to prison has increased. Capacity is also being increased. The work done by the Prison Service in providing tolerable conditions, education and training programmes and anti-offending behaviour programmes is impressive. One should not lose sight of that. The noble Lord, Lord Dholakia, is right to say that, overall, crime has gone down over the past few years. However, the mix of cases going through the courts needs to be looked at to ensure that it is still the case not only that the appropriate people are going to prison but also that the appropriate people are receiving community sentences.
The Lord Bishop of Worcester: My Lords, does the noble and learned Lord share the encouragement that many of us feel at the rising number of people who are concerned about the rehabilitative function of the Prison Service? Is he glad, therefore, that the Chaplain General gave the General Synod an account of the number of young people with mental health problems now in prison and that the Chief Inspector of Prisons' meeting at the General Synod was one of the best attended? Does he accept that there is now a strong group in our society who support the Government in finding a larger number of appropriate sentences that can really benefit offenders and restore them to a useful place in society?
Lord Falconer of Thoroton: Yes, my Lords, I am encouraged by that. I am extremely grateful for the support of the right reverend Prelate for real steps to try to reduce reoffending; that is, effective community

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sentences but also effective resettlement measures, both within prison and outside the prison gates, particularly in the context of drug-fuelled offending. We know all too well that people who step outside the prison gates without proper support all too readily fall back into the same habits that caused the crime in the first place.
Lord Morris of Aberavon: My Lords, given that a high proportion of the prison population is made up of reoffenders, what priority are the Government giving to examining the causes of reoffending? Are they winning on that front? Despite the increase in education provision in prisons, when does the Minister think that there will be adequate education provision and psychiatric help in prison?
Lord Falconer of Thoroton: My Lords, we have sought to examine closely the causes of reoffending. One can never come to a firm conclusion but the Social Exclusion Unit published a report last year in which it addressed the issues that cause most reoffending. I refer particularly to people in custody. As one would expect, the report refers to lack of employment, lack of good housing, lack of connection with family and a connection with drugs and alcohol as issues that cause reoffending. Addressing those issues helps to reduce reoffending. That is what the Social Exclusion Unit report recommends and that is what the Criminal Justice Bill seeks to promote.
Baroness Sharples: My Lords, are there sufficient centres in prisons for young women offenders?
Lord Falconer of Thoroton: My Lords, on the number of places specifically for young offenders, the number of young women—that is, those under 18—in prison is too high, but the figures have gone down. The number of women overall in prison has gone up.
Lord Avebury: My Lords, does the noble and learned Lord agree that one of the reasons for the steep rise in the number of women prisoners is the huge numbers of drug mules who are being sentenced to comparatively long sentences of up to seven years' imprisonment? Would the noble and learned Lord consider giving courts the power to award suspended sentences to drug mules, with recommendations for deportation so that they do not appear at our airports again?
Lord Falconer of Thoroton: My Lords, that is a matter for the courts, which have always taken an extremely serious view of drug mules. They have a variety of powers and have taken the view that long sentences are appropriate. I have no intention of taking a different view.
Lord Acton: My Lords—
The Lord Privy Seal (Lord Williams of Mostyn): My Lords, we are past allocated time now. We cannot just trundle on with the same Question.

Hospitals: Bed Blocking by EEA Nationals
2.43 p.m.
Baroness Hanham: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In so doing, I declare my interests as a member of a local authority and chairman of an NHS trust.
The Question was as follows:
To ask the Government what action they will take to resolve bed blocking in hospitals arising from Section 54 of and Schedule 3 to the Nationality, Immigration and Asylum Act 2002.
The Parliamentary Under-Secretary of State, Home Office (Lord Filkin): My Lords, we have acted immediately to review the cases that have been presented to us. The issues raised have highlighted queries in relation to the treatment of EEA nationals. People who have exercised their Community treaty rights are entitled to enjoy the same social advantages as national workers. The same rights apply to members of their families, ex-workers, those who are self-employed or were self-employed and students with a right of residence. We accept that the definition of social advantages under Community treaties should include the provision of community care and other social services. The Department of Health has today issued guidance to local authorities to put it beyond doubt that in such cases community care and related support should be provided. Further work is ongoing to assess the position of those who might fall into the categories that I have described. If further action is required in relation to those individuals, we will act immediately. If required, the legislation could be amended by the order-making provisions set out in paragraph 15(a) of Schedule 3.
Baroness Hanham: My Lords, I thank the Minister for his reply. If I understand it, he has probably snatched my question. The point that I wanted to make clear is that under the regulations—Schedule 3 to and Section 54 of the Nationality, Immigration and Asylum Act—local authorities were precluded from providing community care for EEA nationals as well as for other categories that are outlined in the definition. The bed blocking that could consequently result in National Health Service hospitals if local authorities were not able to provide that ongoing community care could have been very serious. Is it clear now that all EEA nationals and anyone else in the categories contained in Schedule 3 or Section 54 will be entitled to care in the community, or will those who have resided here for less than 10 years, which is the guidance at the moment, be precluded?
Lord Filkin: My Lords, for the benefit of the rest of the House who may be interested in what this Question is about, it is essentially about the intersect between Section 54 of the Nationality, Immigration and Asylum Act on benefit shopping and whether that precluded local authorities from action—providing care to people leaving hospital. It is an important Question.

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We have today put out clear guidance from the Social Services Inspectorate that is in line with what I said, making it clear that anyone who has Community treaty rights as a result of working here, being a dependant of someone working here or who is a student is entitled to receive social care under Community treaty rights as distinct from the prohibition in the Nationality, Immigration and Asylum Act.
We also know from discussions with Westminster City Council, which raised the matter, that of the 13 cases to which it referred, 12 are clear to be discharged from hospital and will receive benefit. The one remaining area of uncertainty involves people from another EEA nation who may be in hospital but who have never had treaty rights because they never worked in this country. We are exploring that issue actively with the Department of Health and local authority associations.
Earl Howe: My Lords, I welcome the Minister's assurance that the guidance that is being issued will be clear. Does he share my view that the existing regulations about what local authority support may be provided to which asylum seekers is extremely complex and confusing and that it is essential that National Health Service hospitals are able to take a clear view on this extremely important matter, which we will debate this afternoon when we reach the Report stage of the Community Care (Delayed Discharges etc.) Bill?
Lord Filkin: My Lords, I do not agree with the noble Earl that the guidance is unclear. The area of uncertainty was not about hospitals but about whether a local authority could legitimately provide care. In practice, the position under treaty rights was clear. Having said that—I am glad that this issue has been raised because it allowed us to put out a national clarification—a local authority is perfectly entitled in this regard and the Community treaty rights were clear in the circumstances that I have described. We therefore believe that there is not a significant problem, with the exception of the one small issue that I raised, which we are considering further.
Lord Clement-Jones: My Lords, I welcome the Minister's statement and the guidance. What recommendation does the guidance offer to the NHS and social services about how nationality is trapped in those circumstances?
Lord Filkin: My Lords, rather than boring the House to tedium, I should be happy to place a copy of the guidance issued by the Social Services Inspectorate in the Library. I hope to do so very shortly. In essence, anyone who is an EEA national, who has worked here or is a student, or is the dependant of anyone who has worked here—work includes self-employment for these purposes—is entitled to social care because they attain that right through Community treaty rights.
Baroness Hanham: My Lords, I am concerned by the words "work here" or "have worked here". What about those people under EEA treaties who do not and have not worked here? Will they be entitled to such benefits? They may have come here for a number of reasons; they may never have worked a day since arriving in this country and consequently they fall into the trap that is being laid within the Nationality, Immigration and Asylum Act. Would the Minister be kind enough to respond to that?
Lord Filkin: My Lords, I have responded as far as I am able on that point. I signalled that, as far as we could see, there was not a significant number of cases. I instanced the 12 out of the 13; we were clear within a matter of hours that they fell into the beneficial category about which I spoke.
The area of complexity is a more general area about whether I or anyone else can go to another EEA country and be entitled to receive full and total social security support. People who come to this country to retire sign a declaration that they will be able to support themselves. In that area we are considering further issues carefully and we shall continue to do that over the next week or so.

University Research Funding
2.50 p.m.
Baroness Sharp of Guildfordasked Her Majesty's Government:
What criteria would need to be satisfied for university departments to gain the 6* status proposed in paragraph 2.15 of the White Paper The future of higher education (Cm 5735).
The Parliamentary Under-Secretary of State, Department for Education and Skills (Baroness Ashton of Upholland): My Lords, the Higher Education Funding Council for England (HEFCE) has announced that it will allocate £20 million next year to university research departments that achieved a 5* rating in both the 1996 and 2001 research assessment exercises. HEFCE will consider how to reward the very best performers in future years.
Baroness Sharp of Guildford: My Lords, I thank the Minister for that reply. I welcome the extra money that is being put into the science budget. However, she did not answer my Question. I declare an interest: for the past 20 years of my academic career I have worked in the Science Policy Research Unit and I continue to be a visiting fellow in that unit. Is the Minister aware that already 75 per cent of science funding is concentrated in the hands of 25 per cent of universities? That is a higher proportion than in any other country, including the United States. Is she also aware of research that was undertaken in the early 1990s at the Science Policy Research Unit that indicated that there was little or no evidence of any economies of scale in scientific research other than in departments that share large

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pieces of equipment, such as CERN? Is she worried that the further concentration of funding in large departments will stifle innovative research from smaller departments, and particularly from young, new researchers?
Baroness Ashton of Upholland: My Lords, I believe that I answered the Question posed by the noble Baroness on the criteria. The criteria used by HEFCE are the 1996 and 2001 research assessment exercises. I accept the noble Baroness's point about how research moneys are currently distributed. That is one reason why we have created a capability fund of £18 million. We want to look at distributing more moneys to departments that are rated 3A and 3B in seven identified emerging areas. It is important that universities are able to pursue excellence in research. We recognise emerging excellence departments, those areas of research where we need greater capability and, as is mentioned in the White Paper, the need to focus on teaching and on knowledge transfer.
Baroness Blatch: My Lords, can the Government defend their cuts in the teaching programme that inevitably will have an effect on research programmes in our universities, particularly at Oxford?
Baroness Ashton of Upholland: My Lords, I do not have details of the specific issues raised by the noble Baroness in relation to Oxford. We believe that the settlement for universities and higher education is a good settlement. Within that we believe that we are able to support universities in the pursuit of their teaching programmes, in the pursuit of research and in the pursuit of knowledge transfer—the three strands within the White Paper.
Lord Wallace of Saltaire: My Lords, does the Minister accept that it is possible to have too many new initiatives for the higher education sector and that this may be one too many? I declare an interest: I was a member of one department for the first RAE exercise and a member of a different department at a different university for the second RAE exercise. I believe that the whole 6* status is historically flawed in all kinds of intellectual and financial ways. Can the Minister explain whether there is any intellectual rationale for this odd proposal?
Baroness Ashton of Upholland: My Lords, I am sure that the noble Lord will appreciate that I do not consider it to be an odd proposal. In a global economy, in which we compete with institutions and departments across the world, we must ensure that in our education system we are always in pursuit of excellence. I believe that this is part of that pursuit of excellence. It is a recognition of the enormous amount of work and the fantastic amount of research of an extremely high quality that takes place in our universities.

EU: Common Foreign Policy
2.55 p.m.
Lord Blakerasked Her Majesty's Government:
What progress has been made in developing a common foreign policy for the European Union.
The Minister for Trade (Baroness Symons of Vernham Dean): My Lords, the CFSP has made considerable progress since its launch in the Maastricht Treaty of 1993. The appointment of Javier Solana as high representative in 1999 has further assisted the process. The CFSP plays an important part in helping to bring about stability in the Balkans. However, recent developments in relation to Iraq have demonstrated the importance of Her Majesty's Government's policy, which found effect in the Amsterdam Treaty, that the CFSP must remain intergovernmental.
Lord Blaker: My Lords, I am grateful for that reply. Does the noble Baroness agree that the differing policies of France, Germany and the United Kingdom towards Iraq are in line with the national characters of those countries, as is the policy of France towards Mr Mugabe? As it is unlikely that even the European Commission will have the ability to standardise national characters, is the production of a single European foreign policy likely to prove an unproductive exercise?
Baroness Symons of Vernham Dean: My Lords, that is why in my Answer I stressed that the common foreign and security policy is and should remain intergovernmental. That is why it was designed that way in the Maastricht Treaty and that is why it stayed that way in the Amsterdam Treaty and in the Nice Treaty. In that way, as is right, we all have our say. Of course, on 17th February we managed to formulate an excellent statement at the European Council in relation to Iraq, but yes, there have been differences. Nothing in the CFSP implies that there should not be differences where they are so warranted. Where we can agree, we do, and where we do not agree we are all free to act independently. The CFSP provides for exactly that.
Lord Maclennan of Rogart: My Lords, notwithstanding the present concerns about the great powers of Europe being in disarray, do the Government agree that a concerted foreign policy could be greatly assisted, as has been suggested in some parts of the Convention on the Future of Europe, by the authority of Javier Solana being given greater support? His role could be linked with that of the Commissioner for External Affairs, thus enabling work to be carried out in preparation of common positions on which the governments could indicate agreement and gradually—it cannot be other than gradual—a common policy could be developed.
Baroness Symons of Vernham Dean: My Lords, as the noble Lord will know, those matters are under discussion at the convention where the noble Lord plays an important part, for which we thank him. Many proposals are being put forward, such as for a full-time president of the European Council or a European foreign minister in one single person, but there may be varying degrees of agreement or disagreement to them. However, Her Majesty's Government believe that it is important to rest on the intergovernmental nature of the common foreign and security policy. I cannot stress that too much to your Lordships.
Lord Howell of Guildford: My Lords, my noble friend Lord Blaker has demonstrated that at the moment it is silly to talk of a common foreign policy in the European Union in relation to Iraq. Have the Government had any more luck in pursuing a better common foreign policy in relation to Zimbabwe? Has the noble Baroness noticed the strong, new measures proposed by the US Administration under an executive order from the President for enlarging the sanctions, tying up assets more vigorously and generally carrying forward a strong and an effective opposition to Mr Mugabe? Have the Government succeeded in putting those proposals to their partners in the European Union? Should we take the initiative in such matters rather than follow the American example?
Baroness Symons of Vernham Dean: My Lords, I do not think that it is right to characterise the position with Iraq as silly. Certainly different countries have different policies in relation to the matters currently being discussed in the United Nations. But it was not silly to reach the agreement that we did on 17th February. As I found when I was in the Gulf states only last Monday, it was of enormous importance when discussing those matters between the EU and the Gulf states.
I turn to the question about Zimbabwe. The United States has brought forward an interesting point. We have ourselves continued the targeting sanctions policy on Zimbabwe, which was rolled over on 18th February. It includes arms embargoes, an assets-freeze and a travel ban remaining in place. We shall keep looking for additional ways in which extra leverage can be applied.
Lord Wallace of Saltaire: My Lords, I am impressed by the stress which the noble Baroness has placed on the intergovernmental character of the common foreign security policy. On a day when we welcome the result of the Maltese referendum for joining the European Union, is she confident that we can manage an entirely intergovernmental common foreign policy in an EU of 25? Does the noble Baroness recall that Malta on one occasion postponed the conclusion of a CSCE review conference by several days, insisting that the Maltese position on a conference on security co-operation in the Mediterranean should be accepted by all 34 other governments or the Maltese would not
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agree? Does she think that with 25 members some movement towards a more common foreign policy might be desirable and possibly efficient?
Baroness Symons of Vernham Dean: My Lords, I also welcome the vote in Malta and congratulate them on their remarkably high turnout, which might be the envy of many of us. The noble Lord asked whether I am confident that the intergovernmental nature can be maintained. We are now entering a period of discussion and negotiation—as I have said to the House—on where the Government believe we should stand on the intergovernmental nature. Of course the noble Lord will also know from having read the documents emanating from the European convention that there are some who believe that there should be a further extension of qualified majority voting in a number of different areas. No doubt those matters will be discussed not only when those proposals are issued at the end of the convention consideration, but also in due course I am sure that your Lordships will very much enjoy debating them.

Business
3.2 p.m.
Lord Grocott: My Lords, at a convenient moment after 4 p.m., my noble friend Lady Symons will, with the leave of the House, repeat a Statement on Iraq and Israel/Palestine.

European Parliament (Representation) Bill
The Lord Chancellor (Lord Irvine of Lairg): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That it be an instruction to the Grand Committee to which the European Parliament (Representation) Bill has been committed that they consider the Bill in the following order:
Clauses 1 to 6,
Schedule,
Clauses 7 to 25.—(The Lord Chancellor.)
On Question, Motion agreed to.

Sexual Offences Bill [H.L.]
Lord Falconer of Thoroton: My Lords, I beg to move that the Bill be committed to a Committee of the Whole House.
Moved, That the Bill be committed to a Commit tee of the Whole House.—(Lord Falconer of Thoroton.)
On Question, Motion agreed to.

Community Care (Delayed Discharges etc.) Bill
3.2 p.m.
Report received.
Clause 1 [Meaning of "NHS body" and "qualifying hospital patient"]:
Earl Howe Earl Howe moved Amendment No. 1:
Page 1, line 10, at end insert "other than a person receiving mental health services"
The noble Earl said: My Lords, in moving Amendment No. 1, I make no apology for returning to an issue which we debated in Committee and which is of great importance. Whatever else the Bill does for acute and geriatric patients, it should not apply to patients receiving mental health services.
That might at first seem an odd proposition. Over-extended stays in psychiatric wards are a real concern. That is not good for anyone. A recent survey by the Sainsbury Centre for Mental Health on the quality of care in acute psychiatric wards reached the disturbing conclusion that hospital care was "non-therapeutic". That verdict is reflected in patients' attitude. One will not find many mental health patients who enjoy being in hospital. For many, being an in-patient does nothing to address their underlying long-term needs. The shortage of medium-secure units and long-stay, low-secure accommodation means that patients are frequently placed in conditions with inappropriately high levels of security where the regime is fundamentally unhelpful to them.
I am therefore the first to acknowledge that psychiatric patients should be kept out of hospitals if at all possible. However, sometimes hospital admission cannot be avoided; for example, when a patient is so ill and so incapable of looking after himself that in order to avoid coming to serious harm he has to be looked after in a formal care setting. In a small minority of cases, the patient may be viewed as being a danger to other people.
Once such a patient is in hospital, his discharge requires considerable care. The potential for the person to harm himself or others is a judgment that cannot be made in a hurry. It certainly cannot be made when the patient is first admitted to hospital. Of course there must be joint working between health and social services. That kind of partnership working is becoming well established in many parts of the country. But it takes place against the backdrop of inadequate capacity in specialised community mental health services. The National Service Framework for Mental Health identified lack of capacity as the single largest cause of delayed discharge.
There are unique considerations in the field of mental health. If one creates legal duties that compel one part of the sector to penalise the other, one creates incentives and drivers that could very easily put service users at direct risk. The Minister knows that I am not at all enthusiastic about Part 1 of the Bill. As regards mental health there is an immediate concern about patient safety. I would have only slightly less difficulty
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with the notion of including psychiatric patients if there were greater capacity in hostels and supported accommodation, in rehabilitation services and in 24-hour staffed beds in inner cities. But there is a chronic lack of capacity in those areas. To require local authorities to provide care in short order to psychiatric patients is not just unfair on local authorities, it is also unfair on patients who find themselves pitched out of hospital and who cannot then access the services and support they need.
The pressure to reduce the number and length of hospital stays will mean inevitably that discharges from psychiatric wards are planned and carried out in too much of a hurry. The type of assessment required under Clause 3 is not comparable—in substance or in scale—to the comprehensive community care assessment that local authorities have to carry out for psychiatric patients under other legislation. A full-scale assessment would include provision for primary care, housing and support services of all kinds, including crisis resolution teams. That indeed should be done.
However, once the NHS knows it can free-up its blocked psychiatric beds without penalty by offloading the problem on to local government, it is bound to look for ways to achieve that. The temptation may be to use medication as a means of managing symptoms in order to achieve earlier discharge. That might not be the appropriate solution for some people. But, at the very least, if a patient is placed on medication his condition needs to stabilise before he is discharged and any side effects need to be monitored. None of that can be done in short order. Yet the Bill as it stands is an invitation to cut corners and rush matters through.
Therefore, even if there were not such a capacity problem in the areas I mentioned a moment ago, I would be firmly against extending the scope of the Bill to include mental health patients. If we recognise that well co-ordinated services are the key to helping those with mental illnesses, then the imposition of penalties and therefore tensions and barriers between different arms of those services would be taking us in precisely the wrong direction. We should decide now that for mental health patients this is simply a bridge too far in terms of the risk that it carriers. I beg to move.
Lord Clement-Jones: My Lords, I strongly support what the noble Earl, Lord Howe, said in his excellent exposition of the case for the amendment. There is a clear case for mental health services to be explicitly exempt from the proposed reimbursement regime and from being brought under the scope of the Bill by future regulation. We entirely agree with the noble Earl that it would be inappropriate to apply the scheme to the mental health sector, due to the different procedures from those operating in the acute sector for patient discharge and for working across health and social services to facilitate service users' onward journey.
Under the current draft regulations, the local authority will not be made liable for charges if the patient is awaiting another NHS or community care

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service, such as psychiatric or mental health after-care assessment, but cannot move on because the availability of those NHS services is blocked due to lack of social care provision. However, as the Explanatory Notes make clear, Ministers intend eventually to apply the reimbursement regime to other NHS services, including mental health services.
NHS mental health services now operate in an integrated structure between health and social care, with varying degrees of pooled budgets and legal responsibilities. It is not clear how the financial flows could operate in that context. The duty to levy financial penalties against local authorities would undermine the success of those arrangements. According to the Government's National Service Framework for Mental Health, it is lack of capacity in community mental health services, not inefficiencies in social services departments, that is the key cause of delayed discharges for psychiatric patients.
Moreover, assessment of a psychiatric patient's fitness for discharge and putting together an appropriate after-care package involves complex considerations, including self-harm, risk to others and appropriate accommodation, which can rarely be worked through in a three-day period. Furthermore, there is no provision in the Bill for involvement of specialist advocates and carers in the discharge planning process. There is a risk that pressure to reduce prolonged hospital admissions will concentrate resources on the acute sector of mental health services at the expense of' community care provision. Pioneering community care projects around the country could lose their funding as councils divert money into different services to avoid the penalties.
There is also the danger that the Bill will put pressure on local authorities to accept discharged patients earlier than they should, without proper accommodation or essential support services in place. Medication may be used to manage symptoms to achieve earlier discharge without proper consideration being given to a range of therapeutic interventions. For all those reasons, we strongly support the amendment.
3.15 p.m.
The Parliamentary Under-Secretary of State, Department of Health (Lord Hunt of Kings Heath): My Lords, I first welcome the opportunity to debate mental health issues. Although I recognise that it would be inappropriate to extend the Bill's provisions to mental health patients at the same time as we intend to do for those who are receiving acute care, I cannot agree to the amendment, which would mean that mental health patients would be excluded for all time from the provisions. I am well aware of the pressures and issues that face those running mental health services and the impact that that has on the services' users.
The noble Earl, Lord Howe, is absolutely right to say that over-extended stops in mental health hospitals is a cause of real concern. I echo the point that he cited from the Sainsbury Centre for Mental Health—an
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organisation for which I once worked—describing some aspects of hospital care as non-therapeutic. None the less, many mental health patients continue to require treatment in hospitals. As a matter of general principle, the core of the Bill, which is to allow for effective and speedy discharge when it is safe, ought to extend to mental health patients at some point in future.
I want to make clear, as I did in Committee, that we intend in the first instance to prescribe acute care as the type of care that patients must be receiving to qualify, and then, later, to extend the Bill to other types of care where there is a problem with delay. Mental health is one of the types of care excluded from the Bill by draft regulations that have been circulated. We have chosen to take a pragmatic approach because we do not want to overload local authorities, which are preparing to implement the system as a whole.
There is no automatic decision to expand the scope of the Bill to cover mental health, but if we made that decision at some stage, I assure noble Lords that that would not happen without full and proper examination of whether it would he beneficial to mental health patients and the mental health sector as a whole. We should want to consider whether the level of reimbursement should be set differently to provide the right incentive for mental health patients, and whether the minimum compliance period should be extended to reflect the difficulties described by the noble Earl, Lord Howe, and the noble Lord, Lord Clement-Jones, which may arise when assessing mental health patients or providing services.
The Bill has been drafted to allow for expansion. It does not commit us to do so; nor does it restrict us to extending the reimbursement scheme in its current form, because Clause 8 enables us to make different provision for different cases. That will enable us to avoid the perverse incentives mentioned by both noble Lords. We do not have a timetable in mind for such an extension. The decision whether to apply reimbursement to the mental health sector will he taken after the system has had time to bed down in the acute sector.
However, it would be a mistake explicitly to exclude mental health patients from the Bill. It is much to be regretted when such patients have unduly to extend their stay in hospital because of issues such as those raised by the noble Earl, concerning community services. It is important that we retain the ability to extend the benefits of the Bill to mental health patients at some stage, if that is what is decided.
My department has received representations from many mental health professionals who are concerned that their patients should be included in the Bill's provisions as soon as possible, and who want them to benefit from the more timely provision of services that should result. Although we are not prepared to go down that route, we should enable ourselves later to extend the Bill's provisions to mental health patients. Would it be justified to say that we should ring-fence mental health from a scheme that will start with acute patients and can be extended to other parts of NHS

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service provision—to say that mental health patients should not receive those benefits? That would be unjustified.
I hope that I have given reassurances that if it were decided to extend the Bill to mental health patients, that would not be done without careful discussion and consultation with appropriate stakeholders—many of whom have argued that it should extend to mental health patients right from the start.
Lord Skelmersdale: My Lords, before the Minister sits down, much as I hate this way of releasing beds for other patients in hospitals and, therefore, dislike the Bill as a whole, he talked about extending it to mental health patients when it becomes an Act. I am inclined to agree with him. At some stage it would be a logical, sensible progression. However, the Minister also talked about full and proper examination of the facts before an order for the extension was laid. Will that examination of the facts include consultation with health professionals and the charities involved in this area?
Lord Hunt of Kings Heath: My Lords, it is a fair point. It would be a major step to extend the Bill to mental health patients. I can give the noble Lord an absolute assurance that no such step would be taken without full consultation with the groups that he mentioned.
Earl Howe: My Lords, I am grateful to the Minister for his reply, which was not unexpected, but I fear that I am not persuaded by it. The essence of a solution for unblocking beds in psychiatric wards is partnership working between health and social services and ensuring that we do not discharge patients before they are ready. I cannot accept that we should adopt a suck-it-and-see approach and wait to discover how the legislation works in practice. As it is, the Government are being extremely cavalier about the risks of applying a system of fines and reimbursement to the acute sector, never mind to any other.
But we can be sure of one thing: if Ministers have the legal scope to improve the delayed discharge statistics by extending the Bill to the mental health sector, sooner or later it will happen. No proper heed will be paid to the lack of capacity in community services, low-secure accommodation and so on. No doubt, consultation will take place, but I wonder how heavily those factors will weigh. Local authorities will be seen as the whipping boys, as they are at present.
If I sound cynical, I am sorry to say that I plead guilty. Despite everything the Minister has said, I am very much against leaving our options open on this matter. I submit that in mental health the problems created by the Bill are of a different order from those that may arise elsewhere. The Minister's reference to denying mental health patients the benefits of the Bill seems an extraordinary gloss that many of us would not recognise in what the Bill will actually do to such
1116
patients. The risks for patients and other people are simply too great. I should like to test the opinion of the House.
3.23 p.m.
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 124; Not-Contents, 113.

Division No. 1

CONTENTS

Aberdare, L.

Howe of Idlicote, B.

Ackner, L.

Howell of Guildford, L.

Addington, L.

Hunt of Wirral, L.

Allenby of Megiddo, V.

Jellicoe, E.

Alton of Liverpool, L.

Jenkin of Roding, L.

Ampthill, L.

Laing of Dunphail, L.

Anelay of St Johns, B.

Lucas, L.

Astor of Hever, L. [Teller]

Luke, L.

Avebury, L.

Lyell, L.

Barker, B.[Teller]

McColl of Dulwich, L.

Beaumont of Whitley, L.

MacGregor of Pulham Market,

Biffen, L.

L.

Blaker, L.

Mackie of Benshie, L.

Blatch, B.

Maclennan of Rogart, L.

Bradshaw, L.

McNally, L.

Brightman, L.

Maddock, B.

Brooke of Sutton Mandeville, L.

Mar and Kellie, E.

Brookeborough, V.

Marlesford, L.

Brougham and Vaux, L.

Marsh, L.

Buscombe, B.

Mayhew of Twysden, L.

Butterworth, L.

Miller of Chilthorne Domer, B.

Caithness, E.

Miller of Hendon, B.

Campbell of Alloway, L.

Molyneaux of Killead, L.

Campbell of Croy, L.

Mowbray and Stourton, L.

Carlisle of Bucklow, L.

Moynihan, L.

Carnegy of Lour, B.

Murton of Lindisfarne, L.

Chadlington, L.

Noakes, B.

Chorley, L.

Northesk, E.

Clement-Jones, L.

Northover, B.

Cockfield, L.

O'Cathain, B.

Coe, L.

Pearson of Rannoch, L.

Colville of Culross, V.

Peyton of Yeovil, L.

Cope of Berkeley, L.

Pilkington of Oxenford, L.

Craig of Radley, L.

Rawlings, B.

Crickhowell, L.

Reay, L.

Dean of Harptree, L.

Redesdale, L.

Denham, L.

Renton, L.

Derby, Bp.

Richardson of Calow, B.

Dholakia, L.

Roberts of Conwy, L.

Dixon-Smith, L.

Roper, L.

Eden of Winton, L.

Saltoun of Abernethy, Ly.

Elles, B.

Sandberg, L.

Elliott of Morpeth, L.

Sandwich, E.

Elton, L.

Seccombe, B.

Ezra, L.

Selsdon, L.

Fookes, B.

Sharp of Guildford, B.

Gardner of Parkes, B.

Sharples, B.

Glentoran, L.

Shaw of Northstead, L.

Goodhart, L.

Shutt of Greetland, L.

Gray of Contin, L.

Skelmersdale, L.

Hamwee, B.

Slim, V.

Hanham, B.

Smith of Clifton, L.

Hanningfield, L.

Soulsby of Swaffham Prior, L.

Harris of Richmond, B.

Taverne, L.

Hereford, Bp.

Tenby, V.

Higgins, L.

Thatcher, B.

Hodgson of Astley Abbotts, L.

Thomas of Walliswood, B.

Howe, E.

Thomson of Monifieth, L.

Howe of Aberavon, L.

Trumpington, B.

1117

Vivian, L.

Warnock, B.

Wallace of Saltaire, L.

Wigoder, L.

Walmsley, B.

Wilcox, B.

Williams of Crosby, B

NOT-CONTENTS

Acton, L.

Howie of Troon, L.

Alli, L.

Hughes of Woodside, L.

Andrews, B.

Hunt of Kings Heath, L.

Archer of Sandwell, L.

Irvine of Lairg, L. (Lord

Ashton of Upholland, B.

Chancellor)

Bach, L.

Janner of Braunstone, L.

Barnett, L.

Jay of Paddington, B.

Bassam of Brighton, L.

Jones, L.

Berkeley, L.

Jordan, L.

Bhatia, L.

King of West Bromwich, L.

Blood, B.

Lea of Crondall, L.

Boothroyd, B.

Lockwood, B.

Borrie, L.

Lofthouse of Pontefract, L.

Bragg, L.

Macdonald of Tradeston, L

Brennan, L.

McIntosh of Haringey, L.

Brooke of Alverthorpe, L.

[Teller]

Brookman, L.

MacKenzie of Culkein, L.

Bruce of Donington, L.

Mason of Barnsley, L.

Burlison, L.

Massey of Darwen, B.

Carter, L.

Merlyn-Rees, L.

Christopher, L.

Mitchell, L.

Clark of Windermere, L.

Morgan, L.

Clarke of Hampstead, L.

Morris of Aberavon, L.

Clinton-Davis, L.

Morris of Manchester, L.

Cohen of Pimlico, B.

Orme, L.

Corbett of Castle Vale, L.

Ouseley, L.

Crawley, B.

Parekh, L.

David, B.

Patel of Blackburn, L.

Davies of Coity, L.

Peston, L.

Davies of Oldham, L.

Pitkeathley, B.

Dean of Thornton-le-Fylde, B.

Ponsonby of Shulbrede, L.

Dixon, L.

Puttnam, L.

Donoughue, L.

Ramsay of Cartvale, B.

Dubs, L.

Rendell of Babergh, B.

Eatwell, L.

Richard, L.

Elder, L.

Rogan, L.

Erroll, E.

Roll of Ipsden, L.

Evans of Temple Guiting, L.

Sainsbury of Turville, L.

Falkender, B.

Sheldon, L.

Farrington of Ribbleton, B.

Sheppard of Liverpool, L.

Faulkner of Worcester, L.

Simon, V.

Filkin, L.

Smith of Leigh, L.

Gale, B.

Stallard, L.

Gladwin of Clee, L.

Stone of Blackheath, L.

Golding, B.

Strabolgi, L.

Goldsmith, L.

Symons of Vernham Dean, B

Gordon of Strathblane, L.

Tomlinson, L.

Goudie, B.

Turnberg, L.

Gould of Potternewton, B.

Turner of Camden, B.

Greengross, B.

Varley, L.

Gregson, L.

Wedderburn of Charlton, L.

Grocott, L. [Teller]

Whitaker, B.

Hardy of Wath, L.

Whitty L.

Harrison, L.

Williams of Elvel, L.

Hayman, B.

Williams of Mostyn, L. (Lord

Hilton of Eggardon, B.

Privy Seal)

Hollis of Heigham, B.

Wilson of Tillyorn, L.

Howells of St. Davids, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
3.35 p.m.
Clause 2 [Notice of patient's likely need for community cure services]:
Lord Clement-Jones moved Amendment No. 2:
Page 2, line 7, after "hospital" insert "including independent hospitals which provide health care for which NHS bodies or service providers have responsibility"
The noble Lord said: My Lords, in moving Amendment No. 2, I shall speak also to Amendment No. 14. They are probing amendments, based on what the Minister said in Committee, not just about the position of independent hospitals in the UK in which NHS patients are being treated but also with regard to the fact that foreign hospitals under contract with the NHS could be entitled to charge social services departments for delayed discharge. I think that it was the noble Lord, Lord Lucas—I am sorry that he is not in his place today—who managed, in his inimitable way, to elicit that interesting fact from the Minister.
The situation arises because, as long as they are ordinarily resident in England or Wales, qualifying persons will place such a duty on whatever acute hospital they are in, as long as the care has been commissioned by the National Health Service. The logic of the Bill is that Clause 3, which places a duty on local authorities to pay the NHS, will apply. That is very much the logic of what the Minister said in Committee:
"I should answer the question whether the clause will apply when an NHS patient is sent abroad under the scheme that we have for that purpose. It could apply because the clause says that a qualifying hospital patient means,
'a person being accommodated at—

(a) a health service hospital; or

(b) an independent hospital, in pursuance of arrangements made by an NHS body"'.

The Minister went on to say:
"On that basis, the clause could apply to an NHS patient sent abroad. In that context, the NHS body would be a primary care trust".—[Official Report, 17/2/03; col. 942.]
The Minister nods his head, so, clearly, I have not lost all my senses yet this afternoon and that is a correct interpretation of what he said.
The implications of that ministerial statement are, as, I am sure, the Minister realised at the time, fairly large. It would involve additional administration and costs. It would mean incorporating an independent hospital abroad into legislation for England and Wales to enable it—a foreign hospital, as we should not forget—to charge an English or Welsh local authority. How will that affect the commissioning of hospitals? How will it affect the administration of the Act? What guidance will be given to social services on how to deal with a notice from Baden-Württemberg or wherever an NHS patient is being treated? They may find that a patient whom they had not considered for surgery has had some kind of surgery that has gone wrong or involves community care. The Minister has not foreseen such a situation, and I look forward to hearing what he has to say. It is a matter of some concern to those of us on these Benches, and the Minister should explain in some detail how the system will work.
In drawing up the amendments, we were mindful of the position of hospices. At this juncture, however, we shall not replay the hospice issue; we will return to it

1119
at Third Reading. However, the issue underlying our probing amendments is so important that we wished to treat it by itself and get a reply on it from the Minister. I beg to move.
Lord Hunt of Kings Heath: My Lords, this question caused great excitement in our debates in Committee. Although the interjection made by the noble Lord, Lord Lucas, was helpful, the noble Baroness, Lady Barker, also took part in the debate on this important issue. I shall deal first with hospices, before turning to independent hospitals and the position of NHS-funded treatment overseas.
As regards hospices, I shall be meeting the noble Baroness, Lady Finlay, to discuss the issue she raised in Committee. I am sure that that will inform any debate at Third Reading. Essentially, Amendment No. 2 repeats the point made in Clause 1(1). The qualifying patient may be accommodated in,
"an independent hospital in pursuance of arrangements made by an NHS body".
The key words are,
"in pursuance of arrangements made by an NHS body".
Hospices would be treated just as any other independent hospital. If the Bill applied to patients in hospices, patients would have to be in the hospice,
"in pursuance of arrangements made by an NHS body".
The Government intend the Bill to cover any patient whose care is arranged and funded at an independent hospital by the National Health Service.
I turn now to patients who receive NHS-funded treatment in hospitals overseas. This issue needs to be put into perspective. A small number of patients—approximately 200—have been treated either in France or Germany as part of efforts to reduce the length of time that they may have to wait for treatment in the United Kingdom. We do not expect a dramatic expansion in numbers of people receiving treatment overseas due to limits on capacity in European hospitals to treat extra patients. However, we accept that some overseas treatment can be effective—when the patient agrees and the treatment offers value for money—in reducing the length of time that a patient waits for elective treatment.
Currently, patients treated abroad fall within the scope of the Bill, similar to NHS patients being treated by private providers. The reason is that the definition used of a "qualifying hospital patient" in Clause 1 includes people being treated at an independent hospital as defined in the Care Standards Act 2000. As noble Lords know, the Act does not specify that independent hospitals must be located in the UK.
I want to reassure noble Lords on how this might work. Patients selected for overseas treatment are carefully screened to check that there are no reasons, such as social care or housing needs, which would complicate their discharge. Furthermore, patients receive extra rehabilitation, which can be extended if required, as part of the in-patient stay. The overseas hospitals are all clear that patients should not be discharged until they are able to carry out daily life
1120
activities, unaided, in their own home. Therefore, patients treated overseas are unlikely to have social care needs on return to the UK. However, should the patient's condition change and community care needs become necessary, it is highly unlikely that an assessment could not wait until the patient returns to the UK. That would not therefore need to be done abroad.
As a point of good practice, the lead commissioners of Kent and Medway already advise local hospitals to alert social services that patients are going abroad under the scheme and inform them of their expected return date. Therefore, social services are involved from the beginning. The commissioners take NHS trusts through the possible situations that may arise so that they are prepared in advance.
On the basis of the operation of the scheme so far, the best information is that it is highly unlikely that a patient treated overseas will require an assessment of community care services before he returns home. The care taken should ensure that patients are more fully recovered before returning home. However, should the scenario arise, it would not be fair to separate this group of NHS acute patients from others. Each trust or PCT which is sending patients abroad retains the responsibility for co-ordinating patient discharge requirements, just as though the patient had been treated in the UK.
Turning to the issue of practicalities raised by the noble Lord, of course I recognise that it would be more complicated for social services to carry out an assessment overseas if that really were required. Therefore, the Government will obviously be considering whether to allow a longer minimum period for overseas assessment. That can be done through regulations under Clause 4. Clause 8 allows that regulations make different provision for different cases and circumstances.
I emphasise that the Bill does not mean that reimbursement charges will be paid to overseas hospitals. Any payment for delays caused by social services will go to the NHS trust or the primary care trust which had commissioned the treatment in the first instance.
In conclusion, I confirm what I said in Committee about the provisions of the Bill extending to patients treated overseas. Based on the experience of the 200 patients, the problems suggested by the noble Lord seem unlikely. The Bill as drafted extends to patients treated overseas because of the construction made in Clause 1.
3.45 p.m.
Lord Clement-Jones: My Lords, I do not know whether to be reassured or surprised by the Minister's reply. He has erected a rickety structure around the proposition that patients treated abroad are brought within the ambit of the Bill. In a sense, that exemplifies the ramshackle nature of the Bill.
The Minister said that although a limited number of patients will be treated abroad, some of them could be affected. Moreover, the intention is that only

1121
patients who are not expected to have any complications will be treated overseas and that extra rehabilitation is provided for those patients. That means that those patients receiving treatment overseas will have treatment different from patients treated in independent hospitals in England and Wales. There is a special provision. Presumably, teams of lawyers will write contracts with the independent hospitals in Baden-Württemberg or wherever. They can carry on their activities unaided. Therefore, different discharge provisions apply to patients who leave those independent hospitals, as opposed to other independent hospitals.
A whole series of exceptions is building up in order to make the Bill work. That exemplifies a key issue expressed by Members on the Opposition Benches. Every time the Minister replies, even to an innocuous probing amendment such as this, contradictions in the Bill emerge. But the Minister relies on the fact that it is highly unlikely that these patients will not be fully recovered—and there will be another exception. Under the regulations, instead of ensuring that care is available after three days, a longer period of time may be specified. There will be another set of provisions which relate solely to those patients treated in hospitals abroad.
I have elicited enough information from the Minister, but it does not reassure me. It may give rise to a series of future amendments at another stage. In the mean time, with some perplexity, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Barker moved Amendment No. 3:
Page 2, line 10, at end insert—
"and
(c) has consulted with the patient (and in the case of a carer in relation to assessment under the Carers (Recognition and Services) Act 1995 (c. 12) and the Carers and Disabled Children Act 2000 (c. 16) to ascertain their views and preferences, informed them of the reason for the notification, and obtained their informed consent or in the case where a patient lacks the mental capacity to give such consent, has recorded on the file what steps have been taken to ensure that the patient's best interests have been duly considered"
The noble Baroness said: My Lords, this long batch of amendments returns to an issue on which we spent a considerable amount of time in Committee; that is, the issue of consent. In introducing the amendments, it is important to begin by saying that the Bill omits any reference to consent, either on the part of a patient or a carer, when placing a duty on the NHS to refer a patient to social services. That is a flaw which features increasingly in community care legislation.
People have the right to refuse social services assistance other than in certain specific circumstances, such as individuals sectioned under the Mental Health Act. While most people will welcome the intervention of social services when they need them, and will welcome early intervention, there are those who will not do so. For whatever reason, certain people will want to make their own arrangements and they should
1122
have the right to refuse. Thus what lies behind the amendments, in particular Amendment No. 3, is to ensure that people, should they not wish to use them, have the right to refuse to be referred to social services.
We think that the issue of consent is extremely important. Nothing in Clause 2 indicates who is to make the decision that community care services are likely to be required, or even how such a decision is reached. Given that under the framework being set up by the Bill, hospitals are likely to prefer all patients to come under the responsibility of social services—bearing in mind the penalty system that is to come into force—it is probable that, without a specific recommendation that the views of an individual must be taken into account, all patients will be referred regardless of their wishes.
During our debates in Committee the noble Baroness, Lady Andrews, made a helpful concession about the need to consult with patients. I recognise that the provision was not included before. However, I doubt whether noble Lords are under any illusions about the key difference between consultation and the necessity to obtain consent. Fears were expressed from the Government Benches during our earlier debates that people would have to consent to the individual care package being offered to them. However, the amendments reflect our contention that people should give their consent to any arrangements made with social services on their behalf. In that we and the Government hold distinctly different views.
The notion of consent is important. Noble Lords on these Benches feel that going ahead without the express consent of a patient could contravene their right to confidentiality and could be seen as a breach of Article 8 of the European Convention on Human Rights, which as noble Lords know confirms respect for the right to private and family life, home and correspondence.
The second issue dealt with in my amendments and those standing in the name of the noble Earl, Lord Howe, is the right to carers' assessments. In Committee we discussed at length the need for an independent assessment of carers' needs and we recognise that the Bill has been changed during its passage through another place. In response to our probing in Committee, Ministers made much of the hospital discharge workbook and the good practice contained in it. While no one on this side of the House would dispute the fact that the work book contains a great deal in the way of good practice, it does not constitute a statutory obligation or impose statutory guidance on the NHS. Indeed, I believe we had reached this point in our earlier discussions when the noble Lord, Lord Campbell of Alloway, made his welcome intervention on the issue of guidance and the NHS. Would that the noble Lord were in his place today to join in my arguments with his characteristic vigour.
We believe that the issue of consultation, together with assessment, is key to ensuring that what happens to older people and their carers is not just quick, but is also timely. It would reflect good practice. That is why

1123
we have taken certain elements of the Community Care and Health (Scotland) Act 2002 and the Carers and Direct Payments (Northern Ireland) Act 2002, both of which place duties to provide assessments for and make available information to carers.
Taken together, the amendments would add up to good practice while not presenting a threat either to the NHS or to local authorities. We believe, too, that the rights conferred by them would root out the bad practice which still exists, notwithstanding all the force of earlier legislation for carers passed by this Government and their predecessors. That is why we believe that the amendments would be of great benefit and that they should be included on the face of the Bill. I beg to move.
Earl Howe: My Lords, I should like to speak to Amendments Nos. 5, 6, 20, 31 and 32 tabled in my name, as well as to Amendment No. 3, to which, in the spirit of solidarity, I have added my name to that of the noble Baroness, Lady Barker.
Like the noble Baroness, I very much welcome the appearance in the Marshalled List of government Amendment No. 7 and I look forward to hearing what the Minister has to say about it. Until now the Minister has stuck to the line that an explicit legal requirement to consult the patient about a Clause 2 notice is unnecessary, but I am delighted that she has felt able to revise her view. However, I would say with respect that that change of view is essential.
This is an instance where one could argue with perfect cogency that existing legislation and good practice are quite sufficient to ensure that patients will be consulted as regards what will happen to them; ergo, there is no need to clog up the Bill by reinforcing those requirements. But that is the clinical argument which misses the point about the balance of the Bill as currently drafted and the messages it will send out. The Minister knows that one of the things I find distasteful about the Bill is that, amid all the process and procedure it will impose on NHS trusts and local authorities—as well as all the time constraints—the patient's right to speak is nowhere acknowledged. That balance is wrong.
The Bill is all about speeding up discharges and getting patients out of the door as quickly as possible. We must not allow patients to become, or to risk becoming, the property of the system. Although the Minister may still insist that her amendment is unnecessary in strict terms, I say to her that that is why it is not.
As the noble Baroness, Lady Barker, emphasised so forcefully when introducing her amendment, there is still an important gap here; that of patient consent. I am sure the Minister is aware that no little controversy rages about the fuzziness of the rules surrounding the disclosure of confidential patient data between doctors and staff within the health service. That debate has not been concluded and no doubt has some way to run. However, I simply do not think that we should countenance a situation whereby a duty is imposed on
1124
the NHS to refer a patient to an authority outside the health service without at the same time ensuring that the patient's rights of confidentiality are respected. That is basic.
A national service framework provision on patient-centred care specifically relates to this area. But Clause 2 as currently drafted, combined with Amendment No. 7, show that the wording does not reflect the NSF provision which speaks of,
"enabling older people to make informed choices, involving them in all decisions about their needs and care".
One can argue that a Clause 2 notice does not involve detailed decisions relating to future care—it involves an initial decision as to whether a patient requires, or is likely to require, the assistance of social services—but the disclosure of confidential patient data follows automatically from a decision to notify. Once social services have been notified, it is then their legal duty to assess the patient and prepare a care package for him. It is impossible to ask a local authority to carry out such a duty without allowing it free access to the patient's medical history.
But these are private matters. I have said that we must not allow patients to become, or risk becoming, the property of the system. If we say to the NHS that it has carte blanche to disclose confidential medical details to social workers, that is exactly what we will be doing.
The Minister said that a Clause 2 notice formalises what already happens in many parts of the country. It would be instructive to hear from her what existing regulations or guidance allow a hospital to inform a local authority about a patient without that patient knowing about it. If that does happen, it should not. The fact that it may or does happen is no reason to enshrine the practice in legislation.
The Minister has made it clear that patients ought not be allowed a veto. I understand what underlies that viewpoint in the NHS. Patients have rights, but those rights are not all encompassing. We do not say that every citizen of this country has the right to receive from the NHS any medical treatment that he or she may demand, but we surely do say that patients have the right to refuse medical treatment. Why should not we also say that patients have the right to refuse the opportunity to become clients of social services?
Most people would not want to turn down that opportunity, but some might. Are we really saying that the requirement of the NHS to free-up blocked beds is so urgent, so overriding, that we cannot allow patients to exercise that choice? Surely not.
My amendments go further than those of the Minister in several respects, not only on the issue of the initial consent in Clause 2 but also on whether the patient is consulted about the care package eventually offered to him. As the noble Baroness, Lady Finlay, said so well in Committee, the NHS insists on consent—and, indeed, properly informed consent—in almost every other area of patient treatment, why not here as well?

1125
If unamended, the Bill will mean that care packages have to he put together in a hurry; it will mean patients being forced or cowed into accepting things that they do not want. I do not believe that that is acceptable. Why. at the very least, do we not specify explicitly that the patient should be consulted about the care package and what that package is likely to involve for him?
Now that the Government have taken the welcome step of conceding the principle of consultation as regards Clause 2 notices, it is surely no giant leap to concede the principle of consultation during the later stages of the process. Many would regard that kind of consultation as being of equal importance. It will do something to guarantee that the patient is not treated as a parcel. The "like it or lump it Bill" is not an attractive tag to attach to this legislation, but if they are not careful the Government will find that that is exactly the tag it will acquire. I ask the Minister to go further than she has; I hope that she will.
4 p.m.
Baroness Pitkeathley: My Lords, it is important for carers as well as for patients that discharge planning starts upon, or preferably before, admission. Carer organisations have made this point time and again and it is good to note that so many noble Lords have taken the issue on board.
The Government's amendments provide adequate safeguards for carers. I have a slight concern about the word "reasonably" in Amendment No. 7, but the needs of carers are sufficiently covered in these amendments, especially when the requirements of other Acts of Parliament relating to carers and the guidance in the discharge workbook are taken into account.
The Lord Bishop of Hereford: My Lords, I support this group of amendments. They go to the heart of what many old people and the organisations that represent them have found unacceptable in the Bill. To he admitted to an acute hospital is a traumatic experience. Elderly people will be confused, uncomfortable, ill at ease and bewildered by what has been going on. The sense that they are no longer in control of their own lives is inevitably there for patients in an acute hospital.
At the end of the episode of treatment, it is absolutely vital that people are properly consulted and give their consent. I agree with the noble Earl, Lord Howe, that Amendment No. 7 is to be welcomed but simply does not go far enough. Informed consent must be written on the face of the Bill.
In representing those who try to offer the ministry of the Church in hospital, I am often frustrated by the new patient confidentiality arrangements. Parish clergy wish that they could gain access to lists of patients and all the other things that we used to be able to do but no longer can. That can be frustrating. I recognise that it is necessary to defend the rights of patients to privacy and their ability to decide about their own future. Age Concern has raised the question
1126
that this issue could potentially breach Article 8 of the European Convention in regard to respect for private and family life, home, correspondence and so on.
As the noble Earl said, not many people will want to refuse the opportunity of discussing what is going to happen with social services. Almost all will be grateful for the opportunity of at least knowing what options are open to them. But it is very important that consent is forthcoming. It is self-evident that the amendment would be a significant humanising of the Bill and would meet the objection made by so many people that the Bill does not treat elderly patients fully as human beings. The word "commodities" has been used. I know that the Minister does not like that word and resists it.
I strongly support this group of amendments. If we are to take the pastoral needs of elderly patients seriously, they must be allowed to give consent.
Baroness Andrews: My Lords, I am grateful to noble Lords who have spoken in the debate. This is an important issue and I am grateful for the conditional welcome that has been given to the Government's Amendment No. 7. I shall speak first to Amendments Nos. 3, 5 and 6 and place Amendment No. 7 in that context.
The current position is that, in exercising their functions, the NHS and social services must give all proper information to a person so that he can make an informed decision about whether or not to accept care or services. These are fundamental duties which stem from the fact that they are public bodies. Technically, therefore, there is no need to make provision for consultation on the face of the Bill.
However, bearing in mind what the noble Earl, Lord Howe, said—that we have to be careful not to be too clinical and to lose our humanity in the process—we are happy to respond to the concerns expressed in Committee and we have brought forward the Government's amendment. It will place a duty on the NHS to consult the patient and, where appropriate, his carer, prior to issuing a notice to the local authority of the patient's likely need for community care services upon discharge under Clause 2. We are all keen to avoid wasting the time of the NHS and social services by initiating assessments which are not required or involving patients in assessment without their prior knowledge. The Government's amendment will avoid that and reinforce the existing good practice which dictates that the patient must be kept informed and consulted at all stages of the assessment process.
The noble Earl is right, this would have happened in any case, but we are happy to put it on the face of the Bill. We are confident that it will make a difference and we are grateful for the support it has received.
A point was raised about the nature of a Clause 2 notice and the question of confidentiality and privacy. In Committee, I stressed that a Clause 2 notice is a very basic notice which simply requires the basic details about a patient—name and address and so forth. With regard to whether this is likely to breach Article 8 of the ECHR, I am told that the matter has been checked

1127
and our advice is that no breach of Article 8 is implicit in the provision and we are confident, therefore, that we can protect the confidentiality of the patient.
I turn now to the issue of carers. I am grateful for the support of my noble friend Lady Pitkeathley. There is no one in this House who speaks with more authority about the work of carers and the implications that the Bill will have for them.
The requirement to consult a carer is slightly circumscribed in that the NHS body has to consult a carer only if it knows who the carer is and if it is reasonably practical to find out. This avoids any question of accidental or avoidable delay, which we want to minimise as much as possible in the Bill.
In addition, the Bill will be backed up by practical provisions. The guidance will emphasise the importance of consultation. The good practice workbook emphasises, in a whole chapter on patients and carers, what we mean by consultation and the importance of it. There is already a great deal of good practice in the process from which other local authorities can learn.
Noble Lords have rightly said that there is a difference between "consult" and "consent". It is important to be clear about the difference and to understand the implications of putting "consent" on the face of the Bill—which explain our difficulty with it. The Bill does not prevent a patient from refusing to co-operate with the NHS or social services in an assessment. That is the inviolable human right that patients have. But to give a person the right to prevent the NHS from taking the first step to inform local authorities that, in its judgment, for the well-being of the patient there may well be a role for social services on his or her discharge, would be counter-productive. It would do nothing to ensure that the patient would receive the most appropriate care available. It would require extra and unnecessary bureaucracy. It would not reduce delays.
I state again that, if the person involved does not want help from the social services—no matter how great his or her need, or for whatever reason—it cannot be forced upon him or her. Surely that is the most important point to bear in mind. There has to be a way of initiating contact with the social services which takes account of the patient's feelings. I believe that the requirement that we seek to add via Amendment No. 7 is sufficient to ensure that that proper balance is maintained.
I turn now to Amendments Nos. 15, 16, 20—to which the noble Earl spoke—and 23. The amendments propose that local authorities should consult with parents and carers during the assessment process. The problem that we have is that we are alarmed that such a provision would cut across the existing assessment process.
Clause 3(11) clearly ties assessments carried out in accordance with the duty in Clause 3(3) to assessments carried out under Section 47 of the National Health Service and Community Care Act 1990. We are very clear that there should be no difference in the type or
1128
standard of the assessment to which a person is entitled. We have spent a great deal of time on the single assessment process. The amendments would differentiate an assessment carried out in accordance with Clause 3(3) from other Section 47 assessments. We are concerned about this. We believe that it would introduce confusion into the Bill which might hold up assessments, cause duplicate assessments or cut across assessments. So we do have a problem.
A point which should reassure the noble Earl is that social services are public bodies exercising public functions. They are bound by fundamental duties which require them to give all the information necessary for someone to make an informed decision. That includes information about the cost of care. I know that the noble Earl is concerned about this. Local authorities have received statutory guidance to provide information about costs and as part of the care planning process for a number of years. But, more importantly, the single assessment process requires them to give all information including costs. That is important.
I turn now to some of the points made about the importance of consent in this context. The noble Earl used strong language, as did the right reverend Prelate the Bishop of Hereford, about patients being forced or cowed into choices that they did not want to make. It was suggested that they would be treated as parcels or commodities.
My noble friend said in Committee, and I reiterate, that nothing could be further from the intention or, we believe, from the practice which is presently in operation. The single assessment process which was introduced three years ago has at its heart the concerns that we have for the patient, the patient voice, what it is that we can understand when we listen to patients, and what they need.
The Bill is not about reducing or minimising the voice of the patient or what we provide according to what patients see as their need. I reiterate that because it has been stated several times in this Chamber that there is a problem. I stress that the Bill makes no difference to a patient's rights with respect to consent. Patients have a right not to consent to receive services and an absolute right not to have services forced upon them.
Amendments Nos. 30 and 31 seek to place an equivalent duty on the NHS to consult patients and carers and to gain a patient's consent to services being provided following his or her discharge. These amendments are not necessary. Just as with the treatment provided by the NHS in hospital, a patient also has the right to withhold consent to services provided by the NHS in another setting. The Bill does not alter the existing requirement of the NHS to gain consent.
Likewise, we believe that Amendment No. 32 is unnecessary. It requires the NHS to inform the patient and his or her carer of the proposed discharge date. We believe that this is a matter of detail which does not sit appropriately on the face of the Bill. Moreover, it is absolutely clear in the discharge workbook, and we

1129
shall make it clear in the statutory guidance, that the patient is to be provided with this information so that he or she and his or her family are in no doubt about the discharge date.
But the amendment would place an entirely new duty on the NHS to gain the patient's consent to discharge. We must address this very serious question. At present, no NHS patient has a right under existing law to prevent his discharge by withholding consent. It would surely be inappropriate for such a right to be given when we consider that it would effectively give a patient the legal right to remain in a hospital bed indefinitely.
The decision regarding the date of discharge must take into account all the medical and social facts. The guidance makes it plain that it must be taken in consultation with the patient and with all relevant parties.
I turn finally to government Amendments Nos. 22, 23A and 58. I apologise to the House for the fact that these amendments were laid late and there were mistakes in them. Noble Lord will have received a letter to that effect, but I reiterate that we are very sorry about the drafting errors and we hope that the amendments will clarify what is in the Bill.
The amendments add a definition of "carer" to Clause 9, which is in the part of the Bill dealing with interpretation. There have now been a number of amendments to the original Bill dealing with carers, and the term now appears in more than one clause. It was felt that the drafting would be simpler if reference was made in the body of the Bill simply to "carer" and if the term was then defined in the interpretation clause, rather than leaving it in Clauses 3 and 5. The other two amendments are consequential on this.
I hope, in view of the noble Earl's remarks, that he will not in fact be disappointed that we cannot accept some of his amendments. I hope that he will accept our views about the difficulties that they would cause and will feel able not to move them.
Baroness Barker: My Lords, I am somewhat disappointed. I believe that there is a fundamental difference between consultation and consent. When we talk about good practice, it is important to recognise, as the noble Baroness, Lady Pitkeathley, has done on many occasions, that there is an awful lot of bad practice, particularly in relation to carers. When patients and carers become one part of this equation, which is essentially a financial transaction, the pressure on them to accept practices which, in other circumstances, they would not accept—such as having information about them, however minimal, passed to social services—becomes extremely difficult for them to stand up to.
The Bill is, in many ways, incomplete. One of its great omissions is a thorough articulation of exactly what people's rights to confidentiality are. Had I chosen an example, I think I would have chosen the same one as the right reverend Prelate the Bishop of Hereford about the clergy's access to patients. It is no longer the case that clergy of any faith, any
1130
denomination, can have access to the information held about patients. I believe that that is right, and also that patients should not have any of their details, however minimal, passed on to another body without their consent.
I take the Minister's point about the defective drafting of one or two of the latter amendments, but I do not think that her argument applies in relation to Amendment No. 3. This is a fundamentally important issue, and I would therefore like to test the opinion of the House.
4.22 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 142; Not-Contents, 131.

Division No. 2

CONTENTS

Aberdare, L.

Hamwee, B.

Addington, L.

Hanham, B.

Allenby of Megiddo, V.

Hanningfield, L.

Alton of Liverpool, L.

Harris of Richmond, B.

Ampthill, L.

Hayhoe, L.

Anelay of St Johns, B.

Henley, L.

Astor of Hever, L.

Hereford, Bp.

Avebury, L.

Higgins, L.

Barker, B.

Hodgson of Astley Abbotts, L.

Beaumont of Whitley, L.

Howe, E.

Biffen, L.

Howe of Aberavon, L.

Blaker, L.

Howe of Idlicote, B.

Blatch, B.

Howell of Guildford, L.

Bradshaw, L.

Jellicoe, E.

Brittan of Spennithorne, L.

Jenkin of Roding, L.

Brooke of Sutton Mandeville, L.

Jopling, L.

Brookeborough, V.

Laingof Dunphail, L.

Brougham and Vaux, L.

Listowel, E.

Burnham, L.

London, Bp.

Buscombe, B.

Lucas, L.

Caithness, E.

Luke, L.

Carlisle of Bucklow, L.

Lyell, L.

Carnegy of Lour, B.

McColl of Dulwich, L.

Chadlington, L.

MacGregor of Pulham Market,L.

ChalkerofWallasey.B.

Mackie of Benshie, L.

Chan, L.

Maclennan of Rogart, L.

Clement-Jones, L. [Teller]

McNally, L.

Cope of Berkeley, L. [Teller]

Maddock, B.

Craigavon, V.

Mar, C.

Crickhowell, L.

Mar and Kellie, E.

Dean of Harptree, L.

Marlesford, L.

Derby, Bp.

Marsh, L.

Dholakia, L.

Mayhew of Twysden, L.

Dixon-Smith, L.

Miller of Chilthorne Domer, B.

Eden of Winton, L.

Miller of Hendon, B.

Elles, B.

Mowbray and Stourton, L.

Elliott of Morpeth, L.

Moynihan, L.

Elton, L.

Murton of Lindisfarne, L.

Finlay of Llandaff, B.

Naseby, L.

Flather, B.

Newby, L.

Fookes, B.

Nicholson of Winterbourne, B.

Fowler, L.

Noakes, B.

Freeman, L.

Northbrook, L.

Gardner of Parkes, B.

Northesk, E.

Geddes, L.

Northover, B.

Gilmour of Craigmillar, L.

O'Cathain, B.

Glentoran, L.

Onslow, E.

Goodhart, L.

Oxford, Bp.

Gray of Contin, L.

1131

Palmer, L.

Shutt of Greetland, L.

Park of Monmouth, B.

Skelmersdale, L.

Patten, L.

Smith of Clifton, L.

Peyton of Yeovil, L.

Steel of Aikwood, L.

Pilkington of Oxenford, L.

Stewartby, L.

Rawlings, B.

Strange, B.

Reay, L.

Swinfen, L.

Redesdale, L.

Taverne, L.

Rennard, L.

Tebbit, L.

Renton, L.

Thatcher, B.

Richardson of Calow, B.

Thomas of Gresford, L.

Roberts of Conwy, L.

Thomas of Walliswood, B

Roper, L.

Thomson of Monifieth, L.

St.John of Bletso, L.

Tope, L.

Saltoun of Abernethy, Ly.

Tordoff, L.

Sandberg, L.

Vivian, L.

Scott of Needham Market, B.

Waddington, L.

Seccombe, B.

Wallace of Saltaire, L.

Selsdon, L.

Walmsley, B.

Sharp of Guildford, B.

Warnock, B.

Sharples, B.

Weatherill, L.

Shaw of Northstead, L.

Williams of Crosby, B.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Goldsmith, L.

Alli.L.

Gordon of Strathblane, L.

Andrews, B.

Goudie, B.

Archer of Sandwell, L.

Gould of Potternewton, B.

Ashton of Upholland, B.

Grabiner, L.

Bach, L.

Greengross, B.

Barnett, L.

Gregson, L.

Bassam of Brighton, L.

Grocott, L.[Teller]

Berkeley, L.

Hardy of Wath,L.

Blackstone, B.

Harrison, L.

Blood, B.

Hayman, B.

Boothroyd, B.

Hogg of Cumbernauld, L.

Borrie, L.

Hollis of Heigham, B.

Bragg, L.

Howells of St. Davids, B.

Brennan, L.

Howie of Troon, L.

Brooke of Alverthorpe, L.

Hoyle, L.

Brookman, L.

Hughes of Woodside, L.

Bruce of Donington, L.

Hunt of Kings Heath, L.

Burlison, L.

Irvine of Lairg, L. (Lord

Carter, L.

Chancellor)

Chandos, V.

Janner of Braunstone, L.

Chorley, L.

Jay of Paddington, B.

Christopher, L.

Jones, L.

Clark of Windermere, L.

Jordan, L.

Clarke of Hampstead, L.

Judd, L.

Clinton-Davis, L.

King of West Bromwich, L.

Cohen of Pimlico, B.

Lea of Crondall, L.

Corbett of Castle Vale, L.

Lockwood, B.

Crawley, B.

Lofthouse of Pontefract, L.

David, B.

Macdonald of Tradeston, L.

Davies of Coity, L.

McIntosh of Haringey, L.

Davies of Oldham, L.

[Teller]

Dean of Thornton-le-Fylde, B.

MacKenzie of Culkein, L.

Desai, L.

Mackenzie of Framwellgate, L

Dixon, L.

Mason of Barnsley, L.

Donoughue, L.

Massey of Darwen, B.

Dormand of Easington, L.

Merlyn-Rees, L.

Dubs, L.

Milner of Leeds, L.

Eatwell, L.

Mitchell, L.

Elder, L.

Molyneaux of Killead, L.

Evans of Parkside, L.

Morgan, L.

Evans of Temple Guiting, L.

Morris of Aberavon, L.

Falconer of Thoroton, L.

Morris of Manchester, L.

Farrington of Ribbleton, B.

Orme, L.

Faulkner of Worcester, L.

Ouseley, L.

Filkin, L.

Parekh, L.

Gale, B.

Patel of Blackburn, L.

Gilbert, L.

Paul, L.

Gladwin of Clee, L.

Peston, L.

Golding, B.

Pitkeathley, B.

1132

Plant of Highfield, L.

Stallard, L.

Ponsonby of Shulbrede, L.

Stone of Blackheath, L.

Puttnam, L.

Strabolgi, L.

Ramsay of Cartvale, B.

Symons of Vernham Dean, B

Rendell of Babergh, B.

Tomlinson, L.

Richard, L.

Turnberg, L.

Rogan, L.

Turner of Camden, B.

Roll of Ipsden, L.

Varley, L.

Rooker, L.

Warner, L.

Sainsbury of Turville, L.

Wedderburn of Charlton, L.

Sawyer, L.

Whitaker, B.

Sheldon, L.

Whitty, L.

Sheppard of Liverpool, L.

Williams of Elvel, L.

Simon, V.

Williams of Mostyn, L. (Lord

Slim,V.

Privy Seal)

Smith of Gilmorehill, B.

Woolmer of Leeds, L.

Smith of Leigh, L.

Wright of Richmond, L.

Resolved in the affirmative, and amendment agreed to accordingly.

Iraq and Israel/Palestine
4.33 p.m.
Baroness Symons of Vernham Dean: My Lords, with the leave of the House, I shall now repeat a Statement being made in another place by my right honourable friend the Foreign Secretary. The Statement is as follows:
"I should like to make a statement on Iraq and Israel/Palestine."
"On Friday last, 7th March, I attended a ministerial meeting of the Security Council in New York—the fourth such since late January. I have placed copies in the Library of the House of the chief inspectors' latest reports, together with the text of the speech which I gave to the council, and a copy of the amended second resolution of which the UK is a co-signatory.
"The Security Council's meeting on Friday took place four months after the adoption of SCR 1441. This gave Iraq a 'final opportunity' to comply with a series of disarmament obligations. Significantly, during the hours of intensive debate last Friday, not a single speaker claimed that Iraq was in compliance with those obligations. Neither did a single speaker deny that Iraq has been in flagrant breach of international law for 12 years.
"Dr El Baradei's and Dr Blix's reports were about the continuing work of the inspectors. I pay tribute to them and to their teams.
"The first issues concern the International Atomic Energy Agency. As the House will be aware, nuclear facilities are intrinsically more difficult to construct and less easy to conceal than facilities for producing biological or chemical weapons. Dr El Baradei reported that,
'after three months of intrusive inspections, the IAEA had found no evidence or plausible indication of the revival of a nuclear weapons programme in Iraq.'
That is welcome.

1133
"As for UNMOVIC, on the other hand, Dr Blix reported movement in some limited areas: for example, the partial destruction of prohibited Al Samoud missiles. This is, however, only the tip of the iceberg of Iraq's illegal programmes.
"The full extent of that iceberg was revealed in a document compiled by UNMOVIC entitled Unresolved Disarmament Issues: Iraq's Proscribed Weapons Programmes, which was made publicly available late on 7th March. I have also placed copies of this document in the Library of the House. I commend it to all honourable Members. It sets out, in 173 pages of painstaking detail, the terrible nature of the weapons Saddam has sought with such determination to develop. It is a chilling catalogue of evasion and deceit, of feigning co-operation while in reality pursuing concealment.
"The sheer scale of Iraq's efforts to develop these weapons and to hide them can only be grasped by reading the whole document, with great care. But, from 29 separate sets of unresolved issues, let me give the House one illustration—anthrax. It is easily inhaled. The death rate in humans on untreated victims may be 90 per cent or more. Only tiny amounts are needed to inflict widespread casualties. Contrary to Iraqi assertions, the inspectors found evidence of anthrax where Iraq had declared there was none. Again, contrary to Iraqi assertions, UNMOVIC believes there is a strong presumption that some 10,000 litres of anthrax were not destroyed in the early 1990s and may still exist. Iraq also possesses the technology and materials to allow it to return swiftly to the pre-1991 production levels.
"Let me now deal with the issues of inspections and more time. I recognise the temptation to believe that the inspections are working and all that is needed is more time. But Saddam is the master of playing for time. Frankly, as anyone can see from reading the UNMOVIC document, to continue inspections with no firm end date will not achieve the disarmament required by the Security Council. This is the suggestion in the recent memorandum from France, Germany and Russia. But, as the memorandum acknowledges, this cannot be achieved without Iraq's full, active and immediate co-operation,
"Once more last Friday, the Iraqi Permanent Representative to the United Nations claimed that Iraq had no more weapons of mass destruction. It is the same old refrain that we have heard from the regime for the past 12 years. Yet whenever the inspectors have caught them out, the regime have first protested, then conceded the point, but then mendaciously claimed that there is no more.
"So the choice before us is whether we stand firm on our objective of disarmament, or settle for a policy that, in truth, allows Saddam to rebuild his arsenal under cover of just enough co-operation to keep the inspectors tied down for years to come.
"Let us not deceive ourselves. The alternative proposals before the Security Council amount to a return to the failed policy of so-called containment.
1134
But the truth is that containment can never bring disarmament, nor is it the policy of the United Nations, as expressed in Resolution 1441.
"Dr Blix reported on some further recent activity by Iraq, in respect mainly of the Al Samoud missiles. What has caused it? It is not our policy that has changed, nor international law, nor diplomatic pressure. The only thing that has changed is the willingness of the United States and the United Kingdom to deploy their armed forces for the sake of achieving the objectives set by the United Nations.
"The reality is that Saddam responds only to pressure, and the clear conclusion to draw from this is that we must further increase the pressure on him. We must put him to the test.
"The Government have made plain all along their desire to secure a peaceful outcome to the crisis. It is for this reason that I took the initiative in the Security Council last Friday to circulate a revised version of the UK/US/Spain draft second resolution. "This specifies a further period beyond the adoption of the resolution for Iraq to take the final opportunity to disarm. Negotiations on its detail have continued over the weekend. We are examining whether a list of defined tests for Iraqi compliance would be useful in helping the Council to come to a judgment."
"What we are proposing is eminently reasonable. We are not expecting Saddam to have disarmed in a week or so; but to demonstrate by that time the full, unconditional, immediate and active co-operation demanded of him by successive UN resolutions since 1991. I profoundly hope that the Iraqi regime will, even at this late stage, seize the chance to disarm peacefully. The only other peaceful alternative would be for Saddam Hussein to heed the calls of a number of other Arab leaders to go into exile and hand over to a new leadership prepared to conform with the Security Council's demands. But if it refuses to co-operate then the Security Council must face up to its responsibilities.
"In the event that military action does prove necessary, then the international community 'will have a duty to build a secure, prosperous future for the Iraqi people. Last Thursday, I met the UN Secretary General, Kofi Annan, to discuss the humanitarian situation and the involvement of the United Nations in any reconstruction of Iraq. At that meeting, I proposed that the UN should take the lead role in co-ordinating international efforts to rebuild Iraq and that this should be underpinned by a clear UN mandate.
"As the crisis enters this phase, there are fears that in securing Iraq's compliance with international law we may exacerbate tensions across the region. Emotions are inflamed by the situation in Israel and the Occupied Territories where, tragically, there seems to be no end to the spiral of killings. Since September 2000, over 2,300 Palestinians have been killed and over 700 Israelis. We mourn the loss of life on all sides.

1135
"But we cannot allow the cycle of violence to destroy hope for a better future. There are some grounds for optimism. The international community today shares our vision of a lasting settlement, as set out in a series of SCRs: a viable Palestinian state based on the 1967 boundaries; and an Israeli state free from terror, recognised by the Arab world.
"We actively encourage both sides to meet their obligations. We are playing a full part in the international effort to help the Palestinian Authority to build more democratic institutions and a sound civil administration. I chaired a meeting in London on 14th January to discuss these issues with Palestinian leaders, representatives from the region and the quartet. The United Kingdom hosted further meetings, this time attended by Palestinian representatives in person between 18th and 20th February. I have spoken to Chairman Arafat on two occasions in the past week. I greatly welcome his decision to nominate Abu Mazen for the post as Prime Minister of the Palestinian Authority. I hope this nomination is approved by the Palestinian Legislative Council. Abu Mazen has a fine track record in peace negotiations with Israel. We very much hope that this appointment, and other reform measures being taken by the Palestinian Authority, will help to restore a meaningful peace process, as set out in the road map devised by the quartet.
"Likewise, we look to Mr Sharon and his new team of Ministers to work with the international community in restoring hopes for peace. I shall be talking to the new Israeli Foreign Minister, Silvan Shalom, tomorrow.
"A lasting settlement in the Middle East would remove one great threat to security in the region and the wider world. In confronting the danger from Iraq's weapons, the UN can remove another.
"Irrespective of the choice the Iraqi regime makes, we must not let Saddam turn his 'final opportunity' to disarm into endless opportunities to delay. If he refuses to disarm peacefully, then the only sensible course for the international community is to compel him to do so by force".
My Lords, that concludes the Statement.
4.45 p.m.
Lord Howell of Guildford: My Lords, we are all grateful to the noble Baroness for repeating this full and detailed Statement from the Secretary of State for Foreign and Commonwealth Affairs.
This is a dangerous time for us and for the rest of the world. We all want peace, but many of us fear that as the evidence mounts of Iraq's hideous and terrible weapons, Saddam Hussein is inviting war, unless there is full compliance at the last moment—of which there is, sadly, little sign. Does not the evidence of new plans for building unmanned aircraft capable of spraying chemical and biological agents—the so-called MIG 21 RPV project—confirm that the moment of appalling revelation and truth is fast approaching? The more one
1136
studies the small print of the latest expanded UNMOVIC statement—the working document published on Friday, to which the Foreign Secretary referred—the clearer that becomes on almost every page.
This is not a time for point scoring, but I hope that the noble Baroness will not feel that I am being too reckless in observing that unity of purpose, both internationally and within our own leadership, is crucial. Divisions and disunity send a fatal message to Saddam to hold out against UN resolutions. Indeed, they have probably already sent that fatal message, possibly with disastrous results.
We on these Benches hope very much that the second resolution will be passed. Will the noble Baroness say a little more about the legal situation? Is a second resolution essential for the legal validation of any subsequent action, or would that vary depending on how the voting went? For example, a vote might get a Security Council majority but still face a French veto; or it might get a French, Russian and Chinese veto, which would be a majority of the countries among the permanent members; or it might fail to get the basic nine countries needed. We should know something about what legal advice the Government are receiving on those various circumstances, since that will enable us to judge more clearly the rights and wrongs of the path being taken.
The Foreign Secretary mentioned in his Statement a "further deadline" in the UK draft now being circulated. Does that mean a deadline to a fixed date still, or has the concept of the fixed date been abandoned?
I should make it crystal clear that, whenever the vote comes in the Security Council, this House should have a debate immediately afterwards—not before, but after the Security Council has voted. That is absolutely essential.
Looking further ahead into the crisis, will the noble Baroness say a word on Iraq reconstruction, which President Bush has promised will be "a dramatic and inspiring example of freedom"? How are we contributing to working with Americans and others under a UN mandate, if that is what it is to be, to bring about this vision of a "prosperous future", as the Foreign Secretary has just called it? Will she give us some more detail on that?
As for Israel and Palestine, we welcome all moves towards a viable Palestine and a secure Israel and hope that Chairman Arafat's appointment of a Prime Minister will help on his side. On the Israeli side, we can only note once more the futility of disproportionate violence, however great the provocation. So can Ministers continue to urge the new government in Jerusalem to reaffirm their wobbling commitment to the goal of a Palestinian state, and can they urge the Americans not to delay too long in taking new initiatives in line with the road map rather than holding off on the road map until the Iraqi crisis is over, whenever that may be?

1137
Meanwhile, we support the Prime Minister's line, eloquently advanced as it was by the Foreign Secretary at the United Nations at the end of last week. We pray that others, too, will understand the need for firm and prompt action before Saddam reaches that fatal crossroads where fanaticism and weapons of mass destruction meet and the entire world then suffers.
4.50 p.m.
Lord Wallace of Saltaire: My Lords, we on these Benches also thank the Minister for repeating the Statement and for allowing us to practise our speed-reading skills. The Statement is accompanied by several supporting documents and a 173-page background paper which we are recommended to read with care before we comment on the Statement. It is a good test of whether we are wide awake in the middle of the day.
I am puzzled by the very clear difference of emphasis between the report that Hans Blix and Mohamed El Baradei gave to the United Nations last Friday and the tone of the Foreign Secretary's speech. The Foreign Secretary said:
"It's the same old refrain we've heard from the regime for the past 12 years".
Hans Blix and Mohamed El Baradei said that, under pressure—and we on these Benches have always supported the concept of coercive diplomacy—the Iraqi regime has begun to make useful concessions. "As of today", Hans Blix commented,
"Iraq has … accepted that … missiles and associated items be destroyed and has started the process of destruction under our supervision.
Just in case anyone had not noticed, he added:
"We are not watching the breaking of toothpicks. Lethal weapons are being destroyed".
Mohamed El Baradei said:
"In the last few weeks, Iraq has provided a considerable volume of documentation relevant 10 the issues I reported earlier as being of particular concern".
All of us accept that Iraq has not yet come into full compliance. However, it has begun to move significantly. The policy of coercive diplomacy appears to be working. I therefore have to ask the Minister whether it is now the Government's conviction, as it now appears to be the conviction of the American Administration, that coercive diplomacy is not working, that regime change is the only answer, and that we are therefore committed to war; or whether a continued policy of coercive diplomacy—over a matter of months, as Hans Blix said, not weeks or years—is the appropriate way forward.
How important do the Government regard the passing of a second resolution? The phrase "unreasonable vetoes" has been used. Does the Minister think that three vetoes, should that happen, could be regarded as unreasonable?
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We all recognise that this is not just about Iraq and weapons of mass destruction. It is, as the US administration has said from the beginning, also about the broader politics of the Middle East, the war on terror and the Arab/Israeli situation. I was surprised to read the following in the New York Times this morning:
"Now, officials say, Bush has changed his mind and regards the pledge made in December"—
the pledge to publish the road map after the Israeli elections—"as unrealistic". The article continues:
"Among the angriest allies is Britain's prime minister, whose aides say he has pleaded with Bush to be more involved in the Israel-Palestine dispute".
In the following paragraph of the report, an unnamed European official is quoted as saying:
"Let's face it, the Road Map is dead".
Have we reached a point where the US Administration are no longer interested in bringing pressure to bear on the Israeli Government to make parallel progress on the Arab/Israeli conflict? Are we now pursuing a different policy from that of our American allies?
I turn to the question of the wider war on terrorism and how we can come to terms with the Muslim world. Some weeks ago, I asked a topical Question about the American treatment of prisoners, including the alleged treatment of prisoners on Diego Garcia. I was surprised to see, in a very well-sourced article in the New York Times, the following:
"American officials have acknowledged that the CIA has interrogation centers"—
in a number of places, including—
"at a base on Diego Garcia in the Indian Ocean".
That appears to contradict the Government's response to my Question of some weeks ago. I would be very grateful if the Minister can tell me if she has further information on that as well.
4.55 p.m.
Baroness Symons of Vernham Dean: My Lords, I thank both noble Lords, Lord Howell of Guildford and Lord Wallace of Saltaire, for their remarks. I very warmly thank the noble Lord, Lord Howell, for his remarks about my right honourable friend the Foreign Secretary and his comments last Friday at the United Nations Security Council. I thought that the Foreign Secretary's statement was excellent. It took on the argument and answered the points, some of which were erroneous, made in the Security Council. I agree very much with the noble Lord's comment about this being a very dangerous time. I reiterate that we all want peace; he is quite right on that. I think that he was right also in his judgment that the choice here is the choice of Saddam Hussein.

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The noble Lord, Lord Howell, raised the question about the RPVs. I appreciate that he has not had these documents long. However, page 14 of the document to which my right honourable friend referred in his Statement—"Unresolved Disarmament Issues"—contains the following statement:
"Recent inspections have also revealed the existence of a drone"—
which is indeed the RPV 20 to which the noble Lord referred—
"with a wingspan of 7.45 metres that has not been declared by Iraq. Officials at the inspection site stated that the drone has been test flown".
The report goes on to say that further investigation is required into the drone. Nevertheless, the noble Lord is right that that is one of the unanswered questions—of which, as he said, there are many in almost every page of this document. When the noble Lord, Lord Wallace of Saltaire, says that he is puzzled by the difference in tone between the comments of Hans Blix and those of the Foreign Secretary, I would urge him to read this document very carefully. It is this document that provides the evidence. I fully concede that the position of Dr Blix and Dr El Baradei must be very difficult. They will not want to be seen to be going too much towards one side of the argument or the other. However, this document provides the evidence. It is this document that my right honourable friend thought was so important to bring to the attention today of both Houses of Parliament.
Hans Blix did say that Iraq had begun to take some useful steps. The point, however, is that Saddam Hussein always does. He always begins to take a few useful steps, but he always does so at the last minute. I remind the noble Lord, Lord Wallace of Saltaire, that UNSCR 1441 demands the full, active and immediate co-operation of the Iraqi regime—not a few useful steps at the last minute. In no way could anyone claim that we have had full, active co-operation, and not a single speaker at the Security Council did so last week.
So we turn to the second resolution—a resolution on which the Prime Minister is working tirelessly, as is my right honourable friend the Foreign Secretary. The noble Lord, Lord Howell, asked about the legal questions. Iraq's obligations are unambiguously set out in existing Security Council resolutions passed over the past 12 years. Iraq has consistently been in breach of them. Resolution 1441 sets out in detail the council's requirements and it makes plain to Iraq that failure to comply now will have serious consequences. The words "serious consequences" have real meaning. The United Kingdom is committed to ensuring that any military action in which we engage anywhere in the world is carried out in accordance with international law. We have made very clear our strong preference for a second resolution in the event that Saddam continues to defy the UN. But we have also made clear that we must reserve our position in the event that a second resolution proves to be unattainable. The legality of the use of force in any particular case would depend on
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all the circumstances at the time. I do not believe that that is any different as a policy from the policy espoused by the noble Lord's own political party.
The noble Lord asked about a deadline. There is a date stated in the draft resolution which has been circulated. Operational paragraph 3 states that Iraq will have failed to take the final opportunity afforded in the resolution unless on or before 17th March 2003 the council concludes that Iraq has demonstrated full unconditional immediate and active co-operation. That matter is now under negotiation. It is being discussed by my right honourable friends, by our allies, by those with whom we agree and by those with whom we disagree, many of whom are also close allies. We must await the outcome of those negotiations.
The noble Lord asked about a further debate in your Lordships' House after a second resolution. We discussed the possibility of that. Indeed, I believe that it was referred to in the debate when we last discussed the matter a week last Wednesday. That would be a matter for the usual channels. If that is your Lordships' wish and that is what the usual channels decide, the Government would be happy to take that forward.
As regards the UN mandate on humanitarian issues, my right honourable friend's Statement mentioned that he had had discussions with Kofi Annan, the United Nations Secretary General, last week. We shall be guided by a number of considerations in the event that there is a decision to launch military action, which is not decided. I refer to considerations of maintaining the territorial integrity of Iraq and that the Iraqi people themselves, in consultation with the international community, should generate ideas for future political arrangements for Iraq. Moreover, we would expect a successor regime to be a significant improvement on the existing one in terms of good governance and respect for human rights. We also believe that the United Nations should be at the centre of any transitional administration for Iraq. I hope that those four important points are useful to the noble Lord.
I hope that your Lordships have noted the determination of my right honourable friend, as set out in his Statement, to take forward the issues concerning Israel and Palestine. The road map is very important. I say to the noble Lord, Lord Wallace of Saltaire, that we do not believe that there is any sense in which the road map is dead. I spoke to the Foreign Secretary this morning and I believe that he has recently discussed the matter again with Secretary of State Powell. I shall return to the points the noble Lord raised about Diego Garcia.
The noble Lord, Lord Wallace of Saltaire, asks whether it is now the Government's view that diplomacy is not working. I say baldly to the noble Lord that the Government's view is that diplomacy has never worked in relation to Iraqi disarmament of its weapons of mass destruction. I say to the noble Lord that the only reason that we have inspections going on in Iraq at the moment is the credible threat of military force, and that military force has been put

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there by the United States and the United Kingdom. When the noble Lord talks of a little more time for diplomacy, it is important that he recognises that diplomacy would not and has not delivered results. The UN SCR that we are now discussing—a second one—is designed to add that extra pressure.
I was asked about unreasonable vetoes. I say to all your Lordships that we are still negotiating on these issues. My right honourable friends the Prime Minister and the Foreign Secretary have worked tirelessly and continue to work tirelessly, as they should—that is their responsibility—at the United Nations to try to get a resolution that will enhance the possibilities of peace. The alternative is that we have to look very seriously at the possibility of taking forward military action. From the beginning no one has hidden that from anyone. I say to all your Lordships that the tireless effort of my right honourable friends deserves to be supported, as the noble Lord, Lord Howell, made clear, in your Lordships' House, across government and, I believe, by the people of this country.
5.5 p.m.
Lord Wright of Richmond: My Lords, I note what the Minister said about the road map. However, is she aware that recent statements by President Bush hardly give one encouragement that the road map is anything other than dead? The most positive comment that I think he has said is that success in Iraq, whatever that means, could lead to peace between Israel and the Palestinians. I have seen no evidence at all that the Americans have seriously taken on board the real importance of tackling the Arab/Israel problem without reference to Iraq. It is a serious problem. I have argued before in this House that I think it is the most serious problem in the Middle East and that it needs urgent attention. I hope that the Minister can give us some reassurance that the Americans have taken that on board.
Baroness Symons of Vernham Dean: My Lords, I am well aware of the concern of the noble Lord, Lord Wright of Richmond, on that matter which I believe is echoed by many noble Lords on all sides of the House, as we have discussed on many occasions. I remind the noble Lord—I am sure that he does not need reminding, erudite as he is in these matters—that last year President Bush espoused the two-state solution based on the 1967 borders. That was an important statement made last year by the President of the United States. The noble Lord may feel that some impetus has gone out of the discussions on the Middle East peace process. I point out that there have been very recent elections in Israel. Only in the past few days the Prime Minister of Israel has appointed a new Secretary of State for Foreign Affairs, Silvan Shalom. My right honourable friend said in his Statement that he hopes to talk to the new Israeli Foreign Minister tomorrow. The Statement makes clear that we wish to take forward the road map, which is not just an initiative of the United States but also involves the United Nations, the EU and the Russian Federation.
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We believe that it is the best way forward. We shall continue to argue our case vigorously, as the Prime Minister and Foreign Secretary have done, and as they do, both publicly and privately, with our allies in the United States.
Lord Turnberg: My Lords, one aspect that has not been touched upon so far in our discussions is the role of other countries in the region in perpetuating the conflict between Israel and the Palestinians. 'The question I should like to ask my noble friend the Minister concerns the build-up of personnel and arms, including, I understand, several hundred short and medium-range missiles, in southern Lebanon on Israel's northern border. Those could, if fired, reach almost every part of Israel. They are put in Lebanon not by the Lebanese but by Syria and Iran. Will the Government exert pressure on those countries to prevent them taking advantage of any conflict in Iraq as a pretext to launch an attack on Israel which would do nothing to help resolve the dispute and could serve only to exacerbate the problem for suffering Palestinians and Israelis?
Baroness Symons of Vernham Dean: My Lords, of course, the Government recognise that the role of other countries in the region is enormously important. We certainly did when we invited representatives of Jordan, Egypt and Saudi Arabia to attend discussions in London in January on the democratic institutions in Palestine. My noble friend's point on the role of other countries is well taken. He asks whether we can exert pressure on those other countries. We make clear our view about the use of weapons in any circumstances not just in circumstances that might involve our military engagement in Iraq. This is a fundamental issue and one to which we return often in our bilateral relations with all these countries; that is, that there needs to be a scaling down not only of the spiral of violence within Palestine and Israel but also the potential for that violence with their neighbours.
Lord Maclennan of Rogart: My Lords, in the Statement that the Minister read to us, the Foreign Secretary said that it was not international law that had changed. Are the Government able to say what advice they are currently receiving on international law? Have they observed the declaration by 17 leading public international lawyers last week, which stated that the use of force allegedly in self-defence against Iraq without an imminent and present threat would not be other than a serious violation of public international law, or the statement by Mr Mark Littman today that the approach would be a personal violation of international world peace, for which individual Ministers would hold responsibility? Can she also say why it was felt necessary to emphasise in the Statement that we cannot have years to ensure compliance although Hans Blix made it plain that he was not seeking days or years but months in order to reach assurance of compliance? The supporting evidence for that was set out in the 173 pages to which the Minister referred, and that is what led Dr Blix to that central conclusion.
Baroness Symons of Vernham Dean: My Lords, much as we respect Dr Blix, it is not up to him to rewrite the terms of UNSCR 1441. UNSCR 1441 is clear—it demands immediate and full co-operation from Iraq. It is Dr Blix's job to report but he has not taken on the responsibility of the United Nations Security Council to decide what to do in the face of a material breach. I repeat to the noble Lord that not a single member of the United Nations Security Council last week was able to argue that Iraq is fully complying, is complying immediately or is doing so with co-operation.
I turn to the legal point that the noble Lord raised. I hope that I answered that in the response that I gave to the questions raised by the noble Lord, Lord Howell of Guildford. However, for the sake of absolute clarity, I make it clear to the noble Lord that we are committed to ensuring that any military action that we in the United Kingdom undertake, wherever it is in the world, is carried out in accordance with international law.
Lord Eden of Winton: My Lords, will the Minister say a word or two more about the threat of international terrorism? The Statement had little to say about that. Does she also agree that whatever may be one's hopes for and views of the United Nations organisation, where there is a credible threat to international peace and where it is perceived that the security of one's own country is in danger, it is wholly within the sovereign responsibility of the individual country to take whatever action it deems necessary to protect itself?
Finally, I refer to the United Nations organisation generally. Despite what is clearly an internationally orchestrated hate campaign against America and this country, does not the real threat to the United Nations organisation come from Saddam Hussein himself, who is in breach of resolutions, rather than from those who seek to take action to uphold integrity and to protect world peace?
Baroness Symons of Vernham Dean: My Lords, the Statement was about Iraq and Israel/Palestine. I take the noble Lord's point that Iraq has a long record of support for terrorism, including support for radical groups such as the Syrian Muslim Brotherhood, Palestinian terrorist groups such as Abu Nidal, which we have discussed in your Lordships' House, and the activities of the MEK against Iran. It also makes payments to suicide bombers' families and supported the assassination of political opponents in Iraq and abroad. Saddam Hussein tried to sponsor the assassination of ex-President Bush and the Emir of Kuwait in 1993. As UNSCR 687 makes clear, Iraq threatened to make use of terrorism and infamously held human beings as hostages and shields during the Gulf War. Of course these issues are interlinked.
The noble Lord referred to a hate campaign against the United States and ourselves and went on to say that the real threat came from Saddam Hussein. Yes, the real threat does come from Saddam Hussein; that is absolutely right. What is so difficult about this issue
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is the fact that Saddam Hussein has and will continue to have a pattern of behaviour by which he makes small concessions at the last moment. Those small concessions appeal to good people such as the noble Lord, Lord Wallace of Saltaire, who said, "Wait a little longer because it is all starting to work. If we wait a little longer, it will all come right in the end". That is the perfidious nature of the way in which Saddam Hussein operates. It is bound to appeal to good men and women who do not want war—none of us wants war—and who argue that if only we waited a little longer, it would all come right. I do not believe that the evidence is there to substantiate that wish.
Lord Lloyd of Berwick: My Lords—
The Earl of Onslow: My Lords—
Lord Redesdale: My Lords, the Minister gave the impression that the only—
Noble Lords: Cross Bench.
Lord Lloyd of Berwick: My Lords, in dealing with the legal position, the Minister referred to the concluding words of Resolution 1441. Is it not the case that the expression "serious consequences" was a compromise formula that falls short of the usual expression "use of force"?
Baroness Symons of Vernham Dean: My Lords, there are always compromises in United Nations Security Council resolutions. I dare say that if we went through with a tooth-comb, we should find many compromises. I do not believe that when nations signed up to the terminology of "serious consequences", they had much doubt about what they were signing up to.
Lord Redesdale: My Lords, the Minister gave the impression—
Lord Chalfont: My Lords—
The Earl of Onslow: My Lords—
Lord McIntosh of Haringey: My Lords, we should hear from the noble Lord, Lord Redesdale, and then from the noble Earl, Lord Onslow.
Lord Redesdale: My Lords, the Minister gave the impression from the answer in which she invoked the name of my noble friend that the only situation that we are now looking at is that of war, which seems to go against the many Government Statements that there is a prospect of peace. Although she will deny that, will she say what an unreasonable use of the veto involves? In an interview, the Prime Minister said that it might be unreasonable for one of the permanent members of the Security Council to use its veto. However, since

1145
France, China and Russia have considered the use of the veto, on what basis does the Prime Minister make that assertion?
Baroness Symons of Vernham Dean: My Lords, I do not believe that I gave that impression. I have gone out of my way to preface virtually everything that I have said with phrases such as, "in the event of war" and "we hope that war will be avoided". A moment or two ago, I stressed again that we all hoped that there would he peace. I referred to the noble Lord, Lord Wallace of Saltaire, because he made a passionate point to noble Lords and I was responding to him in debate. It seems entirely reasonable to do so. The noble Lord said that I should deny his suggestion; I do deny it, but I do so because that is true.
The noble Lord referred to the use of an unreasonable veto. We are negotiating now. There could be no more crucial time in our international relations—certainly not in my experience, as a Minister of nearly six years' standing in your Lordships' House. We maximise our chances of success, which I, as a Government Minister, wish to see, by wishing our negotiators well and not by trying to predict failure of individual parts of this negotiation. I will stick with my colleagues; that is the right thing to do and that is my responsibility. It may not satisfy the noble Lord, but my answer to him is that my approach is far more likely to help to deliver the answer that I believe all noble Lords want.
The Earl of Onslow: My Lords—
Baroness Dean of Thornton-le-Fylde: My Lords—
Lord McIntosh of Haringey: My Lords, I said that the noble Earl, Lord Onslow, would speak next, followed by the noble Baroness, Lady Dean of Thornton-le-Fylde.
The Earl of Onslow: My Lords, the noble Baroness, Lady Dean, should speak first and I shall speak after her.
Baroness Dean of Thornton-le-Fylde: My Lords, my mother often said that gentlemen are born, not made.
As the noble Lord, Lord Howell of Guildford, said, we live in dangerous times. We all want to see the United Nations come through this dire situation intact for the future. On no fewer than three occasions during her responses, the Minister spoke of negotiations taking place on the second resolution. I wholly agree with and support that. If what the newspapers say is true, I gather that the noble Baroness, Lady Amos, is, as we speak, on her second visit to Africa as part of such a negotiation process. Therefore, does the Minister agree with me that it was most injudicious, possibly even reckless, for a Minister in the Department for International Development to undertake such a trip in the knowledge that the Secretary of State for International Development has said that she would resign if a second resolution were not signed? Surely that takes away some legitimacy,
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integrity and ability of the noble Baroness, Lady Amos, to negotiate a peaceful solution to this dreadful situation. We all know that Hussein will not back down until we are knocking on his door.
Baroness Symons of Vernham Dean: My Lords, I agree with my noble friend Lady Dean that this is a dangerous time and that negotiations on a second resolution are at a crucial stage. I am sure that the whole House joins me in wishing my noble friend Lady Amos Godspeed in her discussions with colleagues in three African countries. She has great experience in Africa; she has good relationships with those in Africa; and I believe that she will be able to talk to people in terms of partnership based on experience and on her relationships. I do not believe, as I have read in some newspapers, that she will try to induce support through unwarranted pressure. I am sure that my noble friend will make an excellent case to those to whom she speaks.
I am sure that my noble friend, Lady Dean, will understand if I say that I do not wish to add to the column inches on discussions on her second point. However, I agree with everything that she said about unity of purpose at this difficult time.
The Earl of Onslow: My Lords, does the Minister agree that there would be catastrophic effects on the future peaceful behaviour of the world if America were forced to back down by an unholy alliance, a French self-seeking movement? For the French Foreign Minister, whose views on Napoleon are, "What a pity he did not succeed at Waterloo", to be giving lectures to the rest of the world on American behaviour strikes some of us francophiles as rather unpleasant. The consequences of the Americans being forced to hack down will mean allowing a man to get away with starving babies to death, letting them wither at the breasts of their mothers and then shooting their mothers—that is Ann Clwyd speaking, not me. I am also reminded of the speech made by the noble Baroness, Lady Nicholson, on the Marsh Arabs. Those messages should be brought home to the French and the Russians time and time again. The consequences of doing nothing are far worse than the consequences of doing something.
Baroness Symons of Vernham Dean: My Lords, I believe that we are at a serious juncture, not just in terms of what is happening in relation to Iraq, but also in terms of the future health of international relations, as the noble Earl said. It is a crucial, difficult time. I have not read the French Foreign Minister on Napoleon, although from previous discussions with the noble Earl I know that he has—I believe he may have learned it off by heart. That makes the position of my right honourable friend on the United Nations Security Council last Friday so important; it was important for him to answer the points raised so forcefully by Mr de Villepin. He did so clearly in his excellent speech, a copy of which is in your Lordships' Library. I commend it to your Lordships.
Lord Chalfont: My Lords, does the Minister agree that in some of the comments made about the

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problem, far too much emphasis is placed on the present, dangerous and real as those dangers may be, and not enough emphasis is placed on the future? As the noble Lord, Lord Howell of Guildford, said, surely we shall be faced with a grave danger in the future if weapons of mass destruction, which we now know to be in the possession of Saddam Hussein, come together with international religious fanaticism, making the world a hideously more dangerous place than it is now. Then it will be too late to do anything about it. Is the Minister aware that despite some of the demonstrations and other protestations that have been made about the policies of the Prime Minister, many people closer to the matter believe that the Prime Minister is behaving with great intellectual clarity and great political courage?
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lord, Lord Chalfont, for those closing remarks. The noble Lord is concerned that there is too much emphasis on the present. There is bound to be such an emphasis at the moment because we are facing a situation in which Saddam Hussein has to decide whether he will disarm his weapons of mass destruction peacefully or whether he will force a military conflict on the rest of us.
Of course, there are concerns about the spread of weapons of mass destruction and fanaticism, as the noble Lord characterised it, or the terrorism spoken of in other parts of your Lordships' House. The great worry must be about weapons of mass destruction slipping into the hands of groups who have allied themselves with the destruction of the United States or with attacks upon the United States and this country. Those issues are important. I also believe that an enormously important issue is the future of Iraq, as the noble Lord, Lord Howell of Guildford, mentioned. The integrity of the state of Iraq, its future stability, the immediate humanitarian needs of the country and the longer-term reconstruction are all matters that my right honourable friend has discussed not only in New York last week, but also, as one would expect, in contingency planning, as we discussed in our debate on Iraq about 10 days ago. They are important issues for the future.

Community Care (Delayed Discharges etc.) Bill
5.29 p.m.
Consideration of amendments on Report resumed.
Baroness Barker Baroness Barker moved Amendment No. 4:
Page 2, line 10, at end insert—
"( ) a patient has limited mental capacity, a procedure exists to appoint an independent advocate."
The noble Baroness said: My Lords, we now make the transition from important international matters to rather more mundane domestic matters. Nevertheless,
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I believe that we return to an issue that is important and which deserves the fair consideration of this House.
With Amendment No. 4 we turn to an issue that was debated, although not to any great extent, during Committee stage—mental incapacity. Frequently, noble Lords make the point that in this country we do not have comprehensive legislation about the care of people who have reduced mental capacity—legislation that would enable a health or welfare attorney to be involved in decision-making when people are mentally frail and cannot take decisions for themselves.
Amendment No. 4 attempts to ensure that people who lack the capacity to make an informed decision are not just automatically referred to social services. Currently, there is a gap in the legal definitions of "capacity" and "protection". This is one of many instances where we address that gap. At present if a patient is unable to give consent—and I am very glad that the House took the decision that consent was required—relatives can be consulted, but no one can consent on the patient's behalf to such a referral. It is good practice to consult with relatives and carers about their knowledge of what a patient might want.
The amendment allows for existing statutory procedures for advocacy and surrogate decision-making to be brought into the framework of discharge planning. As we have said previously, fines will make a significant change to the context in which decisions about discharge take place. We on these Benches are concerned that the most vulnerable people in our society do not become—in the words of many noble Lords—"commodities".
Most patients and many carers do not realise that if they disagree with a decision they have the right to request a panel review, in particular, when the decision is that they no longer require NHS continuing care and that their discharge will be "safe". We debated the matter in Committee. Ministers talked about the issue being addressed by guidance and by common law pre-suppositions. However, the majority of good practice issued by the Department of Health is general guidance, which is not issued under Section 7 of the Local Authority Social Services Act 1970. There is no specific provision in the National Health Service Act 1977 which clarifies the status of such guidance.
As regards the issue of consent, in Committee, the noble Baroness, Lady Andrews, said that informed consent is a legal doctrine that has been developed by the courts over a number of years, particularly in the context of medical experimentation. It is hard to see how it applies to the situation of delayed discharges and the patient's onward journey into further care. It is therefore important to remember, as the noble Baroness said, that the NHS does not have the right to force services on to a patient. That is correct in so far as surrogate decisions can be made when a patient lacks the required mental capacity.
We all know in this country that there is a growing incidence of dementia, in particular of Alzheimer's disease. It is important that those people are subject to specific protection when the complex issue of

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discharge and future care is being considered. That is important because the Alzheimer's Disease Society has reported incidents of patients being discharged from hospital having suffered a lack of personal care.
The Alzheimer's Disease Society's report of, I believe, two years ago, cited incidents of people with Alzheimer's leaving hospital malnourished. It was not that they had not been given food, but they had not been fed. The food would be brought and left at the end of their beds. It would be assumed that because they had not touched it they did not want it. They did not touch it because they did not know it was there and what it was. That occurrence is not widespread but is on the increase. In that context it is important that we should consider having a requirement for an advocate for someone who does not have the mental capacity to make the informed choices that they would otherwise make. For those reasons, I beg to move the amendment.
Baroness Andrews: My Lords, I am very sympathetic to the noble Baroness's intention in tabling the amendment. She spoke about patients with Alzheimer's disease. That and of her appalling cases of bad practice must be addressed. They go beyond the issues of advocacy and to the heart of good nursing care and good care in hospitals in general. The amendment addresses the reality that there will be cases where patients are unable to express a preference for themselves. The normal way to proceed in such cases is for the NHS or the local authority to act on the preferences expressed by a carer in the same way that they would on the patient's own wishes.
There is no statutory guidance to the 1977 Act because the NHS does not issue statutory guidance: directions are issued and action is taken in that way. It is not surprising, therefore, that there is no statutory guidance per se. However, there is a long-standing principle in common law that public bodies must act in the best interests of people whose capacity to consent or understand the reason for certain treatment is diminished. It is reasonable to expect that the NHS and councils will continue to abide by that principle. Nothing in the Bill undermines it.
The point that this may not always work has already been recognised. We have put a new premium on patient involvement because we believe that that is better than appointing advocates for different purposes. The Department of Health already recommends that the NHS and councils should consider making independent advocacy available to service users. That can he where there appears to be a conflict of interest or opinion between the patient and their carer, or where the person involved needs this kind of support—for example, if the patient suffers from dementia or has a learning disability. Therefore, in the cases cited by the noble Baroness a procedure already exists.
In Committee, I spoke about the development of patient advice and liaison services. It is very important to recognise that it is a new development, which is definitely accessible and available in the NHS and does not need to be searched for. I know that the noble
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Baroness has some personal experience of the usefulness of such services. Where appropriate, PALS can refer to independent or specialist advocacy services. For hospital patients with a concern about their assessment for social care, they can provide a first point of contact. However, local authorities are required to inform people of what to expect in dealing with them and to provide information about their entitlement to services and how to complain. That is set out clearly in our Better Care, Higher Standards, published in 1999, and in Fair Access to Care Services, issued in May 2002.
I am pleased to be able to say that progress with PALS has been sustained across the country. We now know that 90 per cent of the country is covered by the service. Obviously, it will be monitored to make sure that it is working as well as we expect. However, I hope that the noble Baroness will accept that, in the absence of a specific advocacy service, we have acted to put in place an accessible and useful procedure for the patients and their families under these circumstances.
Baroness Barker: My Lords, I thank the noble Baroness for her characteristically thoughtful reply. I do not wish to go over the many arguments about PALS that have taken place in your Lordships' House. I shall ask the Minister about the independent complaints advocacy service. My understanding is that ICAS is at the moment in a pilot phase. I think there is an issue about its continuance. Perhaps the noble Baroness can write to me on that.
Baroness Andrews: My Lords, I am advised that the ICAS will be in place nationally on 1st September,
Baroness Barker: My Lords, I hear what the noble Baroness says; I am not sure in what form it will be in place, but that may be a discussion for another day.
I remain concerned that a service that has more to do with helping people to find their way in a practical way around the NHS day to day—as is PALS—is perhaps not the level of service needed. I have listened to what the noble Baroness said; I shall study her reply; and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 5 and 6 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 7:
Page 2, line 22, at end insert—
"( ) Before giving a notice under this section the responsible NHS body must consult—

(a) the patient; and

(b) if the body is aware of the identity of a person who )s a carer in respect of the patient and it is reasonably practicable to consult him, that carer."

On Question, amendment agreed to.
Baroness Andrews Baroness Andrews moved Amendment No. 8:
Page 2, line 23, leave out subsection (4).
The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 9 and 25. In some respects, the amendments are a tidying-up measure. In others, they are a response to concern expressed by noble Lords for greater clarity. In any event, I apologise to your Lordships' House that they were not available earlier.
The tidying-up elements derive from the fact that additions to the Bill have made Clause 2 over-long. Moreover, it has become more difficult to follow all the steps with reference to a Section 2 notice, the circumstances in which it will be issued and withdrawn and, indeed, the circumstances under which a fresh assessment will be made. So the three amendments bring those elements together in a new clause that includes within it the provisions of what was previously Clause 3(7). Amendment No. 25 therefore removes the repetition between existing Clauses 2 and 3 and the new clause.
The new clause also contains two changes that have been made to clarify the conditions under which Section 2 notices will be withdrawn. Again, that is in response to concerns raised in Committee. Given the possibility for confusion when reading between old and new clauses, perhaps I should explain what the changes involve. I shall try to do so as clearly as possible.
New Clause 2(3) now gives NHS bodies a blanket power to withdraw the Section 2 notice. That replaces and widens what was formerly in Clause 3(7). The regulation-making power under new subsection (3) enables regulations to set conditions under which a notice may be withdrawn. Those are circumstances in which the NHS will need to use its judgment about whether the services originally prescribed continue to be appropriate—in large measure, because they are no longer sufficient to meet the changing needs of the patient. That was previously covered in Clause 3(7) by the term, "change of circumstances".
However, under Clause 3(7), the regulations were limited to prescribing circumstances in which the notice might be withdrawn. We have now gone further. New subsection (5)(b) specifies that the regulations must also contain reference to circumstances in which the notice must be withdrawn.
There are a relatively limited number of examples of such circumstances, but we have been concerned that if it were only left to the NHS judging—or remembering—to withdraw notices, it might not happen. For example, we want to remove the possibility of a patient having died or left hospital without social services having been informed, entirely through oversight.
Sadly, that is not such a far-fetched example; such things have happened; but we believe that the new provision will ensure that there is a clearer requirement for proper communication between health and social care partners. As I said, circumstances that may be specified in the regulations as falling within the category that would require early discharge include a
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rapid recovery or significant change in home circumstances—for example, a patient being taken care of by a relative who had not previously been identified.
Noble Lords will also note the term "fresh notice" in new subsection (4)(b). That has been included in response to concerns that the previous term used in Clause 3(7)—"further notice"—was insufficiently clear. The subsection covers instances in which the notice would cease to have effect before the patient was discharged. Examples include where circumstances take a turn for the worse and the patient deteriorates or has a relapse that keeps him in hospital; or where his home circumstances are no longer appropriate—perhaps following the death of a spouse or a carer having to leave for some reason. In those circumstances, a fresh notice may need to be issued. That provision leaves the NHS and social services in no doubt of their duty.
The final change in new subsection (5)(a)(ii) is also proposed in response to earlier suggestions that we had not been as specific about the nature of a withdrawal of a notice as we had been about initial notification. That change will ensure that the regulations will require a similar clarity of communication in the manner in which notices are to be issued and withdrawn. Under that subsection, the NHS will have to be clear about the circumstances that dictate withdrawal of a notice and ensure that social services are fully informed.
The amendments are slightly complicated, but I hope that noble Lords will accept that we have tried to respond to legitimate concerns to clarify and expand on Clause 3(7). I beg to move.
5.45 p.m.
Earl Howe: My Lords, I am most grateful to the Minister for explaining the amendments, which are welcome because they address at least some of the concern that I and other noble Lords expressed in Committee about the Bill's lack of fairness in its treatment of local authorities. It cannot be reasonable or right that a local authority, having been served a Section 2 notice, should proceed to put together a care package—with all the time and effort that that involves—only to discover that, unbeknown to it, there has been a change of circumstances and the patient no longer requires community care services after all, or requires different community care services. There must be proper communication and a duty on the NHS body to communicate to ensure that local authorities do not incur nugatory costs. I am pleased that that point has been recognised.
Of course, we do not have the draft regulations before us, but the Minister's comments suggest that there will need to be a tight procedure in hospitals to determine whether a patient's circumstances have changed—and, if so, in what way—so that the original Section 2 notice does not simply run on by default for longer than necessary. I hope that the Minister will confirm that regulation will specify a procedure to

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review Section 2 notices at set intervals—perhaps daily—and for the conclusion of those reviews to be recorded, along with the reasons for them.
If there is not such an automatic trigger or process for formal review, hospitals will let matters run on, ignoring what the local authority may be doing to organise a care home place, home care, or whatever, and leaving the withdrawal of the Section 2 notice until the last minute. The regulations must force the hospital to be proactive rather than reactive. I hope that the Minister will agree to ensure that that is done.
What happens if the NHS body fails to act as it should where Section 2 notices must under the regulations be withdrawn? What happens if the local authority incurs fruitless costs and has legitimate cause for complaint against the hospital for not having informed it of the change of circumstances? Can that matter be brought before a dispute panel? Will the local authority be able to claim reimbursement of its costs from the hospital? Frankly, I do not see why it should not be able to. The system is being set up to try to relieve the NHS of unnecessary costs. Why should the principle not be recognised when local authorities are affected by it as a result of NHS negligence?
Baroness Barker: My Lords. I thank the noble Baroness for her further clarification. It is extremely welcome, particularly at this time, when health and social care agencies are learning the lessons of the Climbie inquiry. I wish to ask two questions. The first, which we discussed to an extent in Committee, is the form that the notice will take. Will it be given by consultants, or will it be appended to patients' notes? The second relates to the issue of a named person. Sometimes, when discharges go wrong, a key factor is lack of understanding between the care agencies as to who they should deal with in an acute hospital—for example, is it a consultant or a discharge officer? Is it possible to take the welcome clarity a step further?
Baroness Andrews: My Lords, I understand that the form of notice is still under discussion. I shall let the noble Baroness know as soon as we know the outcome of deliberations. The person responsible for discharge is named in the regulations, so I hope that the noble Baroness is satisfied on that point.
I cannot answer the question raised by the noble Earl, Lord Howe, on the set intervals for review under the regulations, not having had advance sight of the regulations. But we will come back to him on the matter, as we will on reimbursement. I commend the amendment to the House.
On Question, amendment agreed to.
Baroness Andrews Baroness Andrews moved Amendment No. 9:
After Clause 2, insert the following new clause—
"NOTICES UNDER SECTION 2: SUPPLEMENTARY
(1) A notice under section 2 remains in force until the patient to which it relates is discharged, unless it has previously ceased to have effect by virtue of subsection (2) or (3).
(2) The responsible NHS body may withdraw the notice by giving notice of withdrawal to the responsible authority.
(3) Regulations may prescribe other circumstances in which the notice ceases to have effect.
(4) If the notice ceases to have effect before the patient is discharged—

(a) no further steps under section 3, (Duties of responsible NHS body following notice under section 2), or 4 resulting from the notice shall be taken and no liability (or further liability) to make a payment under section 4(4) shall accrue; and

(b)the responsible NHS body may (subject to section 2(1)) give a fresh notice under section 2 in relation to the patient;

but paragraph (a) does not affect any liability which accrues before the notice ceases to have effect.
(5) Regulations may provide for—

(a) the form and content of—

(i) notices under section 2; and

(ii) notices of withdrawal under subsection (2), and the manner in which such notices are to be given;

(b) circumstances in which notices under section 2 must be withdrawn; and

(c) determining the day on which a notice under section 2 or a notice of withdrawal under subsection (2) is given (including provision prescribing circumstances in which a notice under section 2 is to be treated for any specified purpose as having been given on a day other than that on which it was in fact given)."

On Question, amendment agreed to.
Clause 3 [Duties arising where a notice under section 2 is given]
Baroness Barker Baroness Barker moved Amendment No. 10:
Page 2, line 39, at end insert "and there has been a decision made that the patient will not require continuing NHS health care other than services provided by the NHS under section 3(8), and a record made of why the patient is considered not to meet each of the criteria for such care, and the patient has been informed of his right of review of this decision."
The noble Baroness said: My Lords. NHS continuing care has been an important issue for several years but has come to prominence in the past two weeks because of the report by the health ombudsman, NHS Funding for Long Term Care. Many discharged patients simply do not receive the continuing NHS-funded care to which they are entitled. In many cases, either the local authority or an individual ends up paying for care when the responsibility should lie with the NHS. At present, people can be treated very differently even though their circumstances—for example, the state of their health—may be similar.
It is unfortunately necessary for me to talk at considerable length about the matter. There is increasing confusion between terms with different meanings, such as NHS continuing care and nursing care. It is important that the distinction is clarified. When the discharge of a patient is reviewed, there should be an assessment for continued NHS care, with a record of how any decision has been reached, prior to any assessment by social services. This amendment, combined with a later one on the single assessment process, is designed to achieve that. Unless the initial decision is correctly made, social services could take responsibility for people who should remain the responsibility of the NHS. Although that applies

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equally to people who require NHS care when they are at home, it is particularly applicable to care in nursing homes.
The issue is much wider than delayed discharges. But it is essential that Parliament looks at the matter, particularly during consideration of this Bill, given the ombudsman's report. The report highlights the deficiencies in deciding when a person should be fully funded by the NHS in a nursing home and remain its responsibility, even if he or she no longer needs to be in hospital. Local authorities need to be clear that the NHS criteria used locally should be in line with the law and guidance and properly adhered to in the decision-making process. If that does not happen, local authorities might take responsibility for people whose needs are beyond the scope of a care package. They may incorrectly face fines if there is a delay in provision of social care.
We suggest that an independent body be given powers to scrutinise the criteria for NHS continuing care and its application. That would achieve consistent criteria and consistency of criteria application across the board. Such a change would be in line with the health ombudsman's recommendation to ensure that the NHS keeps clear records on how initial decisions are made on whether continuing NHS healthcare is needed. The Bill should be used to establish a duty to carry out an independent scrutiny of the criteria for NHS continuing care and its application. The Bill would also establish a clear path for patients who disagree with a decision that they do not require continuing NHS healthcare and a fast-track dispute system for patients.
The boundaries between NHS continuing care, which is free of charge at the point of use, and care provided either by social services or a self-funder are grey. However, it is a huge issue with huge ramifications for the NHS, social services and patients. The health ombudsman made clear in her recent report that there may be a widespread problem and considerable financial loss to individuals, given the cost of paying for care that should be funded by the NHS. The role of social services as a provider of long-term care is limited by statute to accommodation and ancillary services. It should not provide care services that relate to healthcare needs. Although nursing care provided by registered nurses is now the legal responsibility of the NHS, the funding regime provides only a contribution to free nursing, which is often absorbed in higher nursing-care needs; otherwise, the costs of long-term healthcare are in the main met inappropriately and sometimes unlawfully by social services charges.
In 1994, the then health ombudsman found that the NHS had retreated too far from providing long-term care. As a result of those findings, new guidance was issued by the Department of Health in HSG 1995/08. That set out the framework within which the then health authorities were to develop their own criteria for continuing care. When concerns came to light that some criteria were operated over-restrictively, further guidance in the form of an executive letter was issued.
In 1999, the Court of Appeal in the Coughlan case found that although the law allowed social services departments to take responsibility for some nursing care when a person was in a care home, it depended on whether it was,
(i) merely incidental or ancillary to the provision of the accommodation which a local authority was under a duty to provide",
and/or,
(ii) of a nature which it could be expected that an authority whose primary responsibility was to provide social services could be expected to provide".
The Court of Appeal was clear that just because a resident at a nursing home does not require in-patient treatment at a hospital does not mean that his or her care should not be the responsibility of the NHS. Some, because of their health needs, should be regarded as wholly the responsibility of a health authority. The Court of Appeal went on to say that the difficulty is in identifying the cases which are required to be placed in that category on their facts in order to comply with statutory provision.
The issue is the degree of care that can be described as being only ancillary or incidental. Noble Lords will know, because they have spent many hours during the passage of different Bills discussing it, how difficult it is to draw that distinction. However, in her report, the ombudsman made two important findings: first, the guidance issued by the Department of Health is unclear; and, secondly, the local policies operated by health authorities include criteria that may be applied differently to people who have similar needs.
We have tabled the amendment now because, when people are being discharged from hospital, it is of fundamental importance that there should be an assessment of their continuing NHS care needs. They should have a right to appeal against any judgment not just on the basis of the application of the criteria but on the basis of the criteria themselves. In another place, on Report, the Minister, Jacqui Smith, said:
"the first decision that should be made in the assessment process is whether patients are eligible and entitled to NHS continuing care … If patients want to dispute that, they can appeal to the continuing care panel".—[Official Report, Commons, 15/1/03; col. 741.]
Although that is a welcome assurance, the health ombudsman's report indicates that there are two further issues: the decision that a patient does not require continued NHS healthcare could be flawed if the criteria are too restrictive; and the application of those criteria may be incorrect.
The ombudsman's report refers to the cases of people who are being denied continued NHS care when their healthcare needs are almost identical to those cited by the Government as making them eligible for the highest band of nursing care. It would be a positive step to have records of how decisions are made and to have clarity in the Bill about the dividing line between NHS-funded care in nursing homes and continuing care. At the moment, there is great

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confusion, and people are being treated differently—almost by lottery—from others who have exactly the same condition.
There is one more reason for addressing the issue now. Throughout my speech, I have spoken about health authorities, and all existing legislation refers to health authorities. However, the question of who is responsible for making the assessment for NHS continuing care is of key importance. It will no longer lie with health authorities—in future, it may lie with foundation hospitals—and it is important that the process by which the decision is made is clear and complies with national criteria. That is why we move the amendment. I beg to move.
6 p.m.
Baroness Chalker of Wallasey: My Lords, I support the amendment moved by the noble Baroness, Lady Barker, because of recent experience of trying to help an old friend who has faced exactly the circumstances that the noble Baroness described.
The greatest problems are found in cases of mental ill health, in which there needs to be the continuing prescription of fairly heavy drugs to prevent self-injury or injury to others. Social services are fond of declaring that they do not have the resources to look after such persons and that they do not have placements into which they can securely be put. In the case of a person who is sectioned and must remain in locked accommodation with nursing care, there is an ongoing battle that is revisited every six months or so by the social work department because the NHS is unwilling to pay and social services say that they do not have the money. We should not allow such a circumstance to continue. It has created great trauma in the case of a man who has tried four times—on home leave or when they tried to let him go home from hospital—to commit suicide in front of his wife. The social worker said that he needed neither nursing care nor secure care, when the consultant psychiatrist claimed that he did. That shows how bad circumstances have become.
I shall not pursue the matter at length, but, many years ago, when I dealt with such cases, we usually found an easier way to resolve matters. That may have been because I was in another place, not here. Now, it is becoming a fight. In the case to which I referred, the carer has a sick husband—a highly intelligent sick husband—to look after and suffers greatly. The carer also looks after her 94 year-old mother. In such a circumstance, the case outlined by the noble Baroness, Lady Barker, is at one with the reality faced by ordinary people, particularly in the case of mental ill health. I hope that the Minister will respond favourably to the amendment.
Earl Howe: My Lords, I support Amendment No. 10 and have added my name to it. I am grateful to my noble friend Lady Chalker of Wallasey for the vivid light that she was able to cast on an important issue.
The recent report by the health ombudsman makes for a shocking read. I am sorry to say—it emerged clearly from what the noble Baroness, Lady Barker,
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said—that the Department of Health comes out of the report with little credit. Since 1995, four edicts of one kind or another have emanated from Richmond House: the 1995 guidance; an executive letter in 1996; interim guidance following the Coughlan judgment; and yet more guidance in 2001. Despite all that, the ombudsman found that at local level the criteria to determine eligibility for NHS continuing care were being followed wrongly; the criteria were, in any case, not in accordance with central guidance: health authorities had done little or nothing to remedy that; and the Department of Health, in its turn, had done nothing to hold health authorities to account for their shortcomings.
In the Coughlan hearing, the Court of Appeal found that the earlier guidance was unhelpful, because it did not provide unequivocal pointers by which the rules could be correctly implemented, hence the revised guidance that followed. But in her report, the ombudsman says:
"The long awaited further guidance in June 2001 gives no clearer definition than previously of when continuing NHS healthcare should be provided: if anything it is weaker … I would find it even harder now to judge whether criteria were out of line with current guidance. Such an opaque system cannot he fair".
That is an appalling indictment, and it is perhaps not surprising that, despite having no formal jurisdiction over the Department of Health, the ombudsman took it upon herself—unusually—to recommend that the department took certain remedial actions.
One thing is clear: the system is an utter mess. 'We need to hear from the Minister how he thinks the system of reimbursements foreshadowed by the Bill can be brought into operation smoothly and efficiently, if the procedures for assessing a patient's eligibility for continuing NHS care are in such a shambles. The answer is that it cannot. Step 1 must be to sort that out. Even if the Department of Health were to agree with the ombudsman and decide to promulgate fresh, crystal-clear guidance, the process for drafting the guidance, consulting on it, finalising it and training people up to follow it would, at best, take several months: it cannot be done in a hurry.
Therefore, for the Government to say that they are prepared to countenance only a six month delay on the implementation of the Bill, instead of the year that the House insisted upon three weeks ago, I would suggest is pie in the sky. How can a system like that be allowed to commence when the chances of a hospital making a mistake about the need for social service involvement are so high? The financial consequences of such an error—to the local authority certainly, but more importantly to the patient—are potentially so serious that it would be irresponsible to bring the Bill into force without first resolving the issue of continuing care. I put that to the Government today as they decide what to do about the amendment made in your Lordships' Committee.
On 15th January in another place, Jacqui Smith said:
"The first decision that should be made in the assessment process is whether patients are eligible and entitled to NHS continuing care".—[Official Report, Commons, 15/1/03; col. 741.]

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I could not agree with the Minister more. That is exactly what should happen. That is why Amendment No. 10 has been tabled. Apart from the main thrust of her criticisms, the health ombudsman was concerned that in the hospitals she looked at there was no documentation to establish how the hospital reached the conclusion that the patient did or did not fall within the criteria for continuing NHS care. Proper recording procedures in every trust are surely essential. That recommendation, too, has been followed up in the wording of Amendment No. 10.
If the provisions of the Bill are to work, the whole system must be transparent and clear to everyone—practitioners, social services and patients. Transparency of decision-making depends on clear and consistent guidance being in place. Without that, we are at severe risk of encumbering and penalising local authorities unfairly, and pauperising patients without justification. That is the issue. I hope that the Minister will take note.
6.15 p.m.
Lord Hunt of Kings Heath: My Lords, this is an important matter. It may be helpful if I respond to this group of amendments by first explaining to noble Lords how the Government are responding to the ombudsman's report. I believe that it sets the context in which we can discuss these amendments. In response to the noble Baroness, Lady Chalker, I recognise that the problems concerning the boundary between health and social care, disagreements between statutory authorities which have a direct impact on the service that people receive and the risk—as the noble Baroness describes it—of people falling through the net between different statutory authorities, must be tackled with vigour.
One reason for introducing the Bill relates to delayed discharge, ensuring that health and social care work together and that there are no gaps. I believe that the introduction of the single-assessment process is one of the great foundations of trying to ensure that there is no gap between social care and the health service and that people are not treated in the way that the noble Baroness described. Certainly, I accept that the report of the ombudsman is serious and that my department should pay a great deal of attention to it.
Perhaps I may now turn to a number of recommendations made by the ombudsman. The first question is: will the department recommend that all continuing care cases since 1996 are reviewed? In August 2002, in response to a case featured in the ombudsman's report, the Department of Health instructed all strategic health authorities to review previous continuing care criteria and agree new criteria across their boundaries. The department has reiterated to strategic health authorities their responsibility to review continuing care criteria and agree with local councils one set of criteria within their area.
On 27th February, Sir Nigel Crisp, Permanent Secretary at the Department of Health, issued an instruction to the NHS to complete its work, to agree
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with local councils one set of criteria for continuing care in line with the guidance issued by the department in June 2001 and to report back to the department by 28th March with details of the final criteria agreed. Each strategic health authority is required to report back to the department by that same date with details of whether continuing care criteria, in use since 1996, were consistent with the Coughlan judgment. If the criteria were not consistent with that judgment, when was that identified and what action has been taken? In addition, the strategic health authority was asked to give an estimate of the number of people who may have been wrongly assessed under criteria not consistent with that judgment. The ombudsman's report has been sent to all strategic health authorities and social service inspectorate regional offices.
As regards the current guidance and the critique of it by the ombudsman, the Government are to consider the recommendations. We shall review the guidance carefully. The ombudsman's report acknowledges the difficulty of setting fair and easily comprehensive criteria. In Coughlan, the court stated that a clear line between responsibilities of the NHS and local authorities was difficult to draw. Each case should be judged on its own particular circumstance. We shall be looking at those matters very carefully.
In respect of monitoring and checking criteria, I said that all strategic health authorities have been sent copies of the report directly. We expect them to agree new criteria which reflect the Coughlan judgment and ensure a consistent approach to the issue. The Government will pay careful attention to how that is undertaken.
I turn now to the substance of the amendments. Throughout the Bill, we have been clear in our understanding that the first decision in the assessment process is whether someone needs continuing care. That should be done by the relevant NHS body before issuing a Section 2 notice. As pointed out by the noble Earl, Lord Howe, that was emphasised by my honourable friend Mrs Jacqui Smith on Report in another place. There is no doubt that the ombudsman's report highlighted not only problems in four parts of the country, it also identified problems in the assessment process. I readily accept that trusts are not always sufficiently informed of the assessment process and the eligibility criteria. That is a point which we must take seriously.
Therefore, as a result, today I am committing the Government to ensuring that in the regulations governing the form of a Section 2 notice, the NHS will be required to confirm in the Section 2 notice that an assessment for fully-funded NHS continuing care has been carried out before that notice is issued. In making that statement to your Lordships' House today, I hope that I have reassured noble Lords that we expect the assessment of continuing care to be made first, before a Section 2 notice can be issued.
It will not then be possible for anyone who could require NHS continuing care to be discharged to social services before an assessment, informed by the single-assessment process, has been carried out. By placing

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what effectively amounts to requirements on the NHS in regulations to assess the continuing care, that will make it easier for us to revisit and strengthen this provision should it be necessary. Although I have sympathy with the intention of Amendment No. 10, I do not believe that it is required in the light of the commitment that I have given.
The effect of Amendment No. 33 would be to require the commission for healthcare audit and inspection to inspect the criteria for continuing healthcare and their application, along with payments for NHS-funded nursing care, and to take action where they are restrictive.
Again, while I understand completely what the amendment is driving at, I do not think it is necessary. I want to assure noble Lords that we are already acting to ensure that the criteria for continuing healthcare are inspected. We have asked CHAI if the inspection of the national service framework for older people could include reference to continuing care within the examination of person-centred care and age discrimination. I have referred already to the review being undertaken by strategic health authorities of the continuing care criteria. We shall look closely at the reports from the health service due by 28th March.
On the application of criteria, the ombudsman did not actually recommend scrutiny of the application of criteria in the future, but she did recommend that the department's guidance should he reviewed and that the assessment of eligibility for continuing care should be linked with the single assessment process. I have already explained that we are taking measures to strengthen assessment at the point of hospital discharge and that we are already taking practical action to address the issues raised by this amendment.
There is a further reason why I would suggest that the amendment would not work well. The department's current guidance states that:
"The Coughlan case illustrated that decisions about the respective responsibilities of the NHS and social care must be made on the basis of a careful assessment of the facts in each individual case. This should be borne in mind at all times".
The law has not changed to allow us to say anything different and any actions to scrutinise the application of criteria must remember it. Is it really feasible to review the application of criteria in every single case? Surely it is better to ensure that the framework within which these decisions are made fully reflects the Coughlan judgment. Strengthening assessment and making strategic health authorities agree new Coughlan-compliant criteria will do that.
Again, the last part of the amendment on scrutinising NHS nursing care payments is not necessary. We have the system in place already. We said in guidance that people entering a nursing home after October 2001 should have their needs assessed within three months and every 12 months after that, or when there is a significant change in their health status. A formal review can be requested if people are dissatisfied with the amount of care they are receiving from a registered nurse, and a further determination of
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nursing care needs carried out. The strategic health authority's continuing care panel may also review any determination of care by a registered nurse.
I should also remind noble Lords that the reason we have three bands of nursing care is to ensure that people receive the care they need. During the first 12 months of the scheme very few reviews were carried out, suggesting that any complaints were resolved at the local level. So we already have a system, with reviews on a case by case basis, to provide people with the nursing care they need.
In conclusion, I do not underestimate the importance of the matters that have been raised by noble Lords in our debate. However, my assurance is that in the regulations—the draft of which noble Lords have seen already—we shall ensure that, in governing the form of a Section 2 notice, the NHS will be required to confirm in the notice that the assessment for fully-funded NHS continuing care has been carried out. Alongside that is the action we are taking in the light of the ombudsman's report, including the review of what has happened in the NHS and the reports that will be submitted to the department by the end of March. I hope that I have been able to assure noble Lords that we are taking this matter extremely seriously.
Baroness Barker: My Lords, I thank the Minister for that full response. We all agree that the amendments cover an extremely complex area of law, one which has important implications for older people, for the NHS and for social services. I take some comfort from what the Minister has said, but in other areas I have to say that I have remaining doubts.
I am not convinced that within the timetable outlined by the Minister strategic health authorities will be able to determine whether judgments, often made by predecessor bodies rather than by the authorities themselves, will be Coughlan compliant. At the heart of the ombudsman's report the strong observation was made that both local criteria and the guidance from the department itself were insufficiently clear to enable those judgments to be made. I think I am correct that the Minister did not say that the work to be carried out prior to 28th March will be on the basis of new guidance from the Department of Health. Given that, I doubt whether it will be possible for authorities to go back and ensure that all cases dating from the time we are discussing are in fact compliant.
Lord Hunt of Kings Heath: My Lords, I am grateful to the noble Baroness for giving way. The strategic health authorities were asked to undertake this exercise last August because we were aware of the import of the cases being investigated by the ombudsman. They have had a certain period of time. I hope and expect that they will respond in an effective manner.
I sought to make clear that the law is not going to change; it is a question of how the law is interpreted. On a number of occasions, we have attempted to explain, in particular to the health service, what we consider the law to be. The noble Baroness will know

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that in Annex C of the current guidance are set out the key issues to consider when establishing continuing NHS healthcare eligibility criteria. I recognise that the ombudsman has pointed out that perhaps those criteria could be clearer. We shall look at that. However, when considering the guidance, I think it is understandable and makes clear what is expected. Furthermore, I believe that if NHS authorities had followed the principles enunciated in the guidance, they would not have got themselves into difficulties over Coughlan interpretation. We shall see. But I do not believe that it will be an impossible task for strategic health authorities to undertake a review in the light of the current guidance.
Baroness Barker: My Lords, I thank the Minister for those words, but I have to say that his optimism is rather stronger than mine, not least because in the days following the ombudsman's report, strategic health authorities were referring people to primary care trusts for guidance on the matter. When practice on the ground is at such a level, I think that we are facing a real problem. I repeat, older people do face real problems; the ombudsman's report was all about that.
As regards the noble Lord's point about NHS nursing care guidance, his response was perhaps less than I had hoped for. The ombudsman's report made the position clear: given the similarity of the cases, it is necessary for the guidance to be revised. That may not be reflected in the number of individual complaints being made about the level of free nursing care that people have been prescribed, although I think that that has more to do with a complete lack of familiarity with the system.
I do not think it is possible to overstate the importance of this matter. The noble Baroness, Lady Chalker, was absolutely right to draw to the attention of the House the effect of this on people with mental incapacity. The case listed as "A" in the ombudsman's report referred to a person with Alzheimer's disease. The account made detailed points, such as whether it was ancillary to that person's care that he be helped with feeding, for example.
I shall go away and read in Hansard what the Minister has said. We shall return to this issue—not least because we wish to ensure that this ombudsman's report does not suffer the same fate as the previous one of being kicked into touch for a considerable time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Baroness Andrews Baroness Andrews moved Amendment No. 11:
Page 2, line 40, leave out subsection (2).
The noble Baroness said My Lords, Amendment No. 11 seeks to remove from Clause 3 the current subsection (2) in relation to the withdrawal of Clause 2 notices. This is now included in the new clause that we discussed in relation to the previous amendment, which brings together all the actions associated with Clause 2 notices.
Amendment No. 27 seeks to remove subsections (8) to (10), which cover NHS duties following a Clause 2 notice. They are now included in the new clause after Clause 3, which brings together all the NHS duties—that is, duties in regard to consulting on the NHS services to be provided to the patient, giving notice of the proposed discharge date and details of how and when the notice of the discharge date should be given. I beg to move.
Baroness Barker: My Lords, I speak—I hope much more briefly than before—to Amendments Nos. 12, 17, 18, 19, 28 and 68, in which we return to the issue of the single assessment process.
We had an extensive debate about the importance of the single assessment process in Committee. I thank the Minister for the full written reply he sent to me outlining precisely the ways in which my previous amendment on the subject was unnecessary and defective. Nevertheless, I return to the issue of the single assessment process.
It is clear to anyone engaged in the help and social care of older people that the single assessment process which is being introduced will become a fundamental part of determining the care needs of older people. It is inescapable that the failure of the legislation to trigger that comprehensive assessment creates a large gap, particularly when much of what we have been discussing and other matters depend upon the single assessment process.
I remind the noble Lord that the single assessment process does not have a basis in law; it is not based in primary legislation. The constrictions in the Bill, under which market forces are being brought to bear on judgments between health and social care, will make a distinct difference to the character of the way in which decisions are made.
This group of amendments includes the issue of the responsibilities of housing authorities, a matter we have debated before. My noble friend Lady Maddock will cover the issue in greater detail.
In its response to me last week in regard to the single assessment process, the department pointed out that part of my amendment was unnecessary where continuing nursing care needs were met in a person's own home. Unless NHS-funded services are to provide social care as well—and increasingly they do not—it is important that we should reconsider the way in which the single assessment process will sit alongside that.
We are all in agreement that the single assessment process is good; some agree that it will be better when older people are actively involved in its design and implementation. It is at the crux of getting not only the right care but the best quality care for older people and it should be on the face of the Bill.
Baroness Noakes: My Lords, I speak to Amendments Nos. 26 and 29. Amendment No. 26 seeks to insert a new subsection after Clause 3(7) and requires the local authority to consider whether any other NHS body—that is, a body other than the trust

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concerned—should consider providing services to the patient after discharge. It also requires the local authority to provide information for that purpose.
It is a straightforward amendment. It seeks to ensure that other NHS bodies are brought into the loop. When we debated a similar amendment in Committee—which, on that occasion, required the NHS trust to consider whether other NHS bodies should be involved and provide information—the Minister said that it was unnecessary because Clause 3(8) made that implicit.
Amendment No. 26 takes a slightly different tack and seeks to place the responsibility for involving other NHS bodies on the local authority. That assumes that what the Minister told us on the previous occasion about the implicit requirement for NHS bodies to involve each other under Clause 3(8) is a valid statement.
The most important point is that the full range of post-discharge services is considered. Local authorities are particularly concerned about patients being discharged to their homes without the necessary NHS services being put in place. Without those services it is possible that the discharge home and the support provided by social services would be rendered non-viable. The amendment seeks to ensure that all post-discharge services are brought together. In that way, it is to be hoped, nothing will be forgotten. I hope that the Minister will welcome the amendment.
Amendment No. 29 is different. It seeks to amend Clause 3(8) to require the NHS bodies that are considering providing post-discharge services to agree those services with the local authority. If the Government's Amendment No. 27 is agreed to subsection (8) will disappear, but the substance of Amendment No. 29 will remain valid in relation to subsection (2) of the new clause contained in the Government's Amendment No. 34, to which we shall come later.
In Committee, the Minister revealed the anti-local authority sentiment that runs through the Bill. She said that requiring agreement would provide a loophole that could be exploited by local authorities in order to avoid fines. She seemed not to understand that, viewed from the local authority end of the telescope, Clause 3(8), which allows the NHS to assert its own will over local authorities, looks like a loophole to be exploited by an NHS eager to collect money from fines.
If I may say so, the Minister seemed not to understand that partnership working, which the Government claim to support, positively requires agreement about important matters such as post-discharge services.
Amendment No. 29 is important because partnership working is the only real solution to minimising delayed discharges. The solution is not fines; it is not notices and all the elaborate
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paraphernalia in this dreadful Bill. At all costs, we have to preserve in the Bill as many aspects as possible of partnership working.
Baroness Maddock: My Lords, I speak to Amendment No. 13. Earlier, the Minister said that the Bill was about health and social services working together. I wish to add home improvement services to the list.
The amendments have two purposes. First, to highlight the connection between poor health and poor housing; and, secondly, to enable the Minister to reassure me today that the issue of home improvements will be regarded as important in drawing up the regulations and the best practice guidance that will follow.
I make no apology for raising this issue yet again. Thirty years ago, I went to live in Sweden. I was very impressed by the standard of health of elderly people there. It was fairly obvious that it resulted from the fact that they lived in decent homes—homes which were warm, not cold and damp as they are in this country. Here I am, 30 years later, in Britain—one of the richest nations in the world—and, still, one in 14 of our population live in homes that are unfit for human habitation.
I shall not repeat all the statistics that I gave in Committee. I merely highlight two of them: the tendency to live in poor housing conditions increases with age, particularly after 80, and lone older women are more likely to live in unfit housing; and 1.7 million people need adaptations in their homes. There are all kinds of reasons for those facts, including poverty, frailty and disability. The one that concerns us in debating this Bill is the lack of information about the help that is available and how to obtain it.
Those assessing patients for discharge from hospital are in an ideal position to ascertain the problems of home disrepair—whether it be the lack of adaptations, general disrepair or a lack of suitable heating. They have the ability to ensure that patients are referred to the appropriate agencies. They might be referred to the warm front scheme if it is a question of heating. I am particularly disappointed that the Government are cutting the budget for the scheme this year—they are cutting the DEFRA budget. It might be a question of other heating schemes through the energy efficiency commitment that the Government have imposed on the utilities; or it might be a question of Care & Repair schemes.
There is one area about which I feel particularly incensed; namely, the inability of our services to enable older people to have a level-access shower in their homes. I draw attention to the Adjournment debate in another place on 27th January in which Helen Jackson, Member of Parliament for Sheffield, Hillsborough, spoke about this issue. She gave the frightening example of one of her constituents who had been turned down for a disabled facilities grant by his assessor because he was able to have a strip wash and was not incontinent. My mother was discharged

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from hospital following a knee operation. She did not have a shower. She was not able even to strip-wash herself because of various things that were happening.
I find it amazing that people still have to wait for up to a year for this type of adaptation when we know how much it costs to keep people in hospital. The cost of a shower pales into insignificance. Will the Minister assure me that this matter is being pursued vigorously by the health service in conjunction with other agencies?
In some areas home condition is taken very seriously when examining programmes where social services and health services are working together. I can recommend a particularly good scheme that was brought to my attention by the LGA in south Shropshire. Perhaps I may recommend to the Minister the work of the Care & Repair scheme in this field. It has put together good examples of best practice and guidelines to enable good discharge services, which include home improvement agencies. I hope that the Minister's department will draw on those.
When I raised this issue at an earlier stage, the Minister agreed that it was important. Will he reassure me that the health service is working to ensure that, when a patient comes into contact with the health service, that person will as a matter of course, every time, be asked about their home circumstances in order that they might be referred to the appropriate agencies as soon as possible? There are examples of good schemes up and down the country.
In this country we are taking far too long to recognise the role of poor housing in the ever-rising cost of healthcare. By recognising fully in this Bill the implications of poor housing, we can take the issue forward and help to tackle the very large backlog. It is not rocket science and it does not cost money. In the 21st century, we jolly well ought to be doing it.
6.45 p.m.
Baroness Greengross: I strongly agree with the remarks of the noble Baroness, Lady Maddock. I have heard her speak on this matter on other occasions, and I have been involved with some of the home repair agencies over the years.
A house has a life. At the stage when one elderly person is living there—usually an elderly woman living in a building that is in poor repair—a small amount of money will keep that home going for the few remaining years of the person's life. After his or her death, a young family will come into the house, invest in it and make more major repairs. In that way, it gets a new lease of life. So for a very small outlay of money one can help to keep people much healthier than is imagined for that small investment. When we talk about collaboration between health and social services, we usually forget how important housing is in making that happen.
Earl Howe: My Lords, I rise to speak briefly in favour of Amendment No. 28, which in many ways harks back to the previous group of amendments on
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the issue of continuing care. If a patient in hospital is assessed as needing nursing care in a care home when he leaves the hospital, it is unacceptable for that decision to be taken without its implications being fully spelt out to him. The main question that will occur to anyone in that situation is "How much is the after-care likely to cost me?"
The Government made a great fanfare about introducing free nursing care in care homes. As we now know, the reality is a little different. NHS nursing care in care homes is not always completely free. You have to find out what band you fall into before you can calculate how much it will cost to be looked after in a particular home. There is no current guidance about this. The previous guidance laid down that social services ought to,
"provide written details of the likely cost to the patient of any options which he or she is asked to consider … and that hospital and social services staff should ensure that patients receive written details of any continuing care that is arranged for them. This should include a statement of which aspects of care will be arranged and funded by the NHS".
As I remarked in Committee, doing this for a patient is a matter of basic human courtesy, but the evidence is that in many, many cases it does not happen. The situation is compounded by the opaqueness of the rules surrounding the £110 band of nursing care compared to the criteria for fully funded NHS healthcare. Deciding who qualifies for one as opposed to the other requires a degree of insight denied to most mortal men. It baffled the health ombudsman and I think we can safely say that it would baffle most of us.
This really has to be sorted out before the Bill comes into effect. I am delighted that the Government have recognised in an explicit way the importance of consulting the patient, but I ask the Minister: how is it possible to consult the patient about his aftercare in the truest sense of the word "consultation" if you cannot, in so doing, tell him the basis on which he will need looking after and who will be responsible for doing what? That is the issue in Amendment No. 28. I hope that the Minister will feel able to respond sympathetically.
Baroness Finlay of Llandaff: My Lords, I support the remarks of the noble Baroness, Lady Maddock, in regard to the importance of home improvements. We have heard about home improvements in terms of whether someone is eligible. A further point is that they must be timely—they need to happen early, not late. There are many patients who have neurological diseases which are slowly progressing. If those patients are to be returned home and are to benefit from home improvements, the improvements must happen quickly; otherwise, the tragic situation arises—as we have heard in meetings with groups outside this Chamber, particularly from those with motor neurone disease—that by the time the patient has the home improvements done, his or her condition has deteriorated so much that he or she cannot benefit fully from them. Home improvements always lag behind the clinical condition. The costs of care then escalate enormously. The care services are never freed up from providing care because the improvement is

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not in place that would have relieved the burden on them and would have maintained people's independence for weeks, months or, one hopes, even years longer.
Baroness Andrews: My Lords, we have had a series of interesting and important discussions on this group of amendments.
On Amendment No. 12, the noble Baroness, Lady Barker, was quite right that we have high expectations of the single assessment process. It is an extremely important step forward. Particularly important is that it puts patients at the heart of the assessment process. It is very explicit in taking account of their needs and wishes. I take her point about involving them in the design and implementation of the guidance. It is not yet fully operational but I hope that as it evolves there will he opportunities to do just that—it makes perfect sense. The guidance brings together the health and social care professionals. It was issued as Section 7 guidance, which means that it must be acted upon.
In relation to the amendment, I am glad to say that the process already extends to hospital settings. It will be the means whereby assessment of all care needs over and above clinician diagnosis and discharge planning is undertaken in hospital settings for older people. We know that good work is being done on rolling out the process.
The noble Baroness made a plea that we put the amendment on the face of the Bill to act as a trigger. We have already put the local authority's duty to carry out a Section 47 assessment on the face of the Bill in Clause 3. All assessments under Section 47 will be made by way of the SAP. Having that in the Bill makes it clear that everything will be a Section 47 assessment, which is linked to the SAP. I understand why the noble Baroness makes such a strong case for this proposal, but it is not necessary because the provision is so clear in the Bill.
When my noble friend Lord Hunt wrote last week to the noble Baroness with details of how the Department of Health emphasises to the field the importance of adherence to the SAP, he spelt it out in some detail. Because of its importance, it comes under Section 7 guidance, and any attempt to avoid compliance would be quickly picked up by the strategic health authorities and the social security inspectorate.
We are encouraged by the fact that our scrutiny so far suggests that the field has taken the SAP to heart and is dealing seriously with it. That suggests that it is going with the grain of the very best practice and that people are happy to put it into effect. I hope that the noble Baroness will agree with me that it is not necessary to list the responsibilities again here. However, it will be made clear in the official guidance accompanying the Bill that the SAP is the fundamental means of assessment and that it must be followed.
Let me turn to the speeches of the noble Baronesses, Lady Maddock, Lady Greengross and Lady Finlay. The noble Baroness, Lady Maddock, made a powerful speech about the need to link home improvement services to the discharge process. Nothing divides us
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on the importance of this. The examples given by the noble Baroness, Lady Maddock, were as powerful as the ones she gave in Committee. At that stage, I said that we would be looking at how we could reinforce the guidance to make it certain that social services authorities would identify housing needs, informing their housing counterparts and working together to ensure that what could be done was clone. Under the Bill, social services are required to consult where there is a housing need. The responsible authority, as defined in the Bill, will not always be the housing authority, so we have to make provision for that communication to take place. I should like to reinforce what I said in Committee and to give the noble Baroness the assurance that she seeks.
We have responded to the need in a very specific way. We have put in new resources. We are aware of the difficulty of putting the disabled facilities grant in place in some local authorities. There is no question but that there are delays. However, we have put new plans in place. On 23rd July 2002, the Secretary of State said that part of the package financed through additional funding for social services would be a 50 per cent increase over the 1997 total in the number of extra-care housing places—very sheltered accommodation. The noble Baroness, Lady Maddock, spoke about home improvement agencies, and the noble Baroness, Lady Greengross, referred to the cost-effectiveness of installing a walk-in shower. A walk-in shower costs about £5,000 so that would come under the DFG. Some of the other very small adaptations, which are extremely cheap and make all the difference in the world, come under the CSDP Act. We want to see the point of connection being made between the social services and housing authorities when they are looking at the sort of conditions that elderly people will go back to when they are discharged.
Baroness Maddock: My Lords, what concerns me is that there are all sorts of services to which people can be referred. The Government say that they will talk to housing authorities, and so on, but it is becoming second nature to know where to refer people. It is not always to the local authority—other agencies are doing it.
Baroness Andrews: My Lords, the assessment process is designed not to make a virtue out of referral but to make something happen. It brings people together. The noble Baroness is absolutely right that this is a point at which information can be usefully exchanged. It may in fact be the first time that some of these people have talked to each other. We expect something to happen arising from that.
Following the Secretary of State's announcement on 23rd July regarding older people's services, we will in due course be announcing details of a special grant to local councils to expand community-based social care services. That will include a specific ring-fenced investment of £9.5 million over the next three years in HIAs to contribute to reductions in delayed discharge by the prompt supply of minor housing works. So

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direct action is being taken. Similar funding is also being made available by the ODPM. I should prefer to write to the noble Baroness about that and about the recent joint work between the ODPM and the Department of Health about the guidance. I will circulate that.
In practical terms, we know that very few discharges are delayed entirely for housing reasons, but obviously they have a direct influence on many situations. I hope, given that assurance, that the noble Baroness will accept that we have entirely taken her point.
Amendment No. 17 would remove the words "if any" from Clause 3(3)(b). The words are there because the clause requires the local authority to consult the NHS and then decide what services it will provide. There may be circumstances in which no services are necessary, perhaps because the patient has made a complete recovery. We must make it possible for the local authority not to provide services. Therefore, the insertion of "if any" provides clarity on the face of the Bill that it is valid for the local authority to provide no services. On that basis, I hope that noble Lords will feel able to withdraw their amendment.
Amendment No. 18 would insert the words,
"whether acting as purchaser or provider".
I presume that that is intended to clarify what is meant by the local authority deciding whether to make services available. We do not think that that adds much value to the clause because the term "make available" simply indicates that the social services are ready to comply and that the services are ready and available. There may be reasons why the services are not provided on the day of discharge—for example, the housing provision may not have been made—and the patient cannot be discharged, but we believe that "made available" encompasses preparation and availability.
Amendment No. 19 would add:
"commensurate with the patient's needs".
Assessments carried out by the NHS or local authorities are not simply an academic exercise. The point is that the patient's health or social care needs should be met. As public bodies, local authorities are under a public law duty to do that, but there is a clear statement in the single assessment process that this is a system of care management that covers assessment, planning and service delivery. That package of care will test and secure good working relationships between all the health and social care professionals involved. The Bill reinforces that by requiring the local authority to consult the NHS when it is planning the patient's care package. It means mutual information and a commitment to making sure that the patient's needs are met. We have backed that up with a wide range of extra resources for the NHS and social services in relation to discharge.
We have tabled Amendment No. 24 to make the Bill fairer to local authorities and clearer and more sensitive to individual circumstances. I hope that it mitigates to some extent what the noble Lord said about our unfairness to social services. We already
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have the power in regulations to begin the assessment process again if the situation changes so markedly that what the NHS or social services planned to provide is no longer enough. That has gone into our new clause. The amendment covers a situation in which, during an extended hospital stay, the patient's condition improves beyond expectation, or perhaps their personal circumstances change so that they will find a relative in support when they go home. In those circumstances, a completely new assessment is probably not necessary, but the patient does not need all the services that social services had planned to provide. For example, a patient who has had a stroke and has a poor prognosis in the early days may make a rapid recovery and may not need physiotherapy that had been planned. The amendment allows social services, after consultation with the NHS, to change their decision about what services to provide to enable a safe discharge. It builds in flexibility and sensitivity to changing needs. Given the proviso that the local authority will not be able to make such a change without consulting the NHS body, I hope that noble Lords will accept that.
Amendments Nos. 26 and 29 are intended to cover the provision of services by other NHS bodies, such as primary care trusts, and to require that the relevant bodies agree with each other. I am afraid that we still feel that the amendments do not add anything to what is already in the Bill. They would require the NHS body to consider whether any other NHS body should provide services. The NHS body already needs to consider whether the trust or another NHS body has to provide services to the patient on discharge. Clause 3(8) states that the responsible NHS body, and any other NHS body that will he involved in providing health services, will need to consult the local authority. That will primarily be the primary care trust. The noble Baroness is right that the full range of services considered necessary should be available. The PCT will be providing those services and ensuring that, whether it is physiotherapy, speech therapy or dressings to be changed, the nursing support is there, the health visitors are organised and the physiotherapists are available. That depends on the PCT knowing what its task is and having liaised with the NHS. Following on from the acute trust's decision that the patient will need community health services, they will have to provide appropriate information to the other NHS bodies—otherwise nothing will happen—so that they can comply with their duties under subsection (3). I repeat that we do not think that anything needs to be added to the Bill, as this will happen as a matter of course and of logic.
Amendment No. 29 then states that the responsible NHS body must come to an agreement with the social services authority. I am sorry if I gave the impression of being anti-social services. I am certainly not and I did not intend to give that impression. The noble Baroness is right that agreement is essential before anything can be achieved. Our problem is that to include a duty on the face of the Bill in the way that she wants would, in the worst circumstances, offer a reason for failing to act or to come to an agreement.

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In that case the loss would be borne by the individual patient. We think it is right to try to protect them from that. It is a worst case analysis, but we have a duty to make sure that it does not happen. Subsection (8) as drafted is simpler and better.
The noble Earl, Lord Howe, spoke to Amendment No. 28. If he will forgive me, I shall not reopen the debate that we have already had this afternoon on NHS nursing care. We have difficulty with the amendment because we do not want to identify or single out in the Bill particular services that we think the NHS should be considering To address the noble Earl's basic point, existing guidance is clear on NHS-funded nursing care. Anyone who is assessed as needing care in a care home providing nursing care will have a registered nursing care contribution carried out. Patients will be told the level of need and funding that the NHS will be paying on their behalf in the care home, regardless of the setting that a person is in—a hospital or wherever. The discharge good practice workbook will also make it clear that there will be a potential need for nursing care after a period of hospitalisation.
I hope that noble Lords will not press their amendments.
On Question, amendment agreed to.
[Amendments Nos. 12 to 14 not moved.]
7 p.m.
Baroness Barker Baroness Barker moved Amendments Nos. 15 and 16:
Page 3, line 4, after "consulting" insert "the patient and having obtained the informed consent of the patient or, in the case where a patient lacks the mental capacity to give such consent to the proposed care plan, having recorded on the file what steps have been taken to ensure that the patients best interests have been duly considered, and after consulting"
Page 3, line 4, after "body" insert "and the qualifying patient"
On Question, amendments agreed to.
[Amendments Nos. 17 to 19 not moved.]
Earl Howe Earl Howe moved Amendment No. 20:
Page 3, line 5, at end insert—
"( ) Before making a decision under subsection (3), the responsible authority must—

(a) consult the patient and his carer, if he has one;

(b) inform them of the cost of the proposed care plans; and

(c) obtain the consent of the patient and any carer and, where informed consent is given, record that on the patient's file, or if a patient lacks the mental capacity to give such consent, record on the file what steps it has taken to ensure that the patient's best interests have been duly considered."

On Question, amendment agreed to.
[Amendment No. 21 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 22:
Page 3, line 8, leave out from "person" to end of line 9 and insert "who is a carer in respect of"
On Question, amendment agreed to.
Baroness Barker moved Amendment No. 23:
Page 3, line 15, after "consulting" insert "the carer and obtaining the informed consent of the carer to the proposed care plan and after consulting"
On Question, amendment agreed to.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 23A to 25:
Page 3, line 17, leave out from "carer" to end of line 19.
page 3, line 28, at end insert—
"(6A) The responsible authority must keep under review—

(a) the needs of the patient; and

(b) the needs of any carer whose needs it has assessed under subsection (4)(a),

so far as affecting the services that need to be made available in order for it to be safe to discharge him.
(6B) The responsible authority may, after consulting the responsible NHS body, alter—

(a) its decision under subsection (3)(b); or

(b) any decision taken by it under subsection (4)(b),

to take account of any change in circumstances since the assessment carried out under subsection (3)(a) or (4)(a) (as the case may be).
(6C) The responsible authority must inform the responsible NHS body of the decision under subsection (3)(a), of any decision under subsection (4)(a) and of any alteration made under subsection (6B)."
Page 3, line 29, leave out subsection (7).
On Question, amendments agreed to.
[Amendment No. 26 not moved.]
The Deputy Speaker (Lord Dean of Harptree): My Lords, I advise the House that if Amendment No. 27 is agreed to I shall not be able to call Amendments Nos. 28 to 31.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 27:
Page 3, line 33, leave out subsections (8) to (10).
On Question, amendment agreed to.
[Amendments Nos. 28 to 31 not moved.]
Earl Howe Earl Howe moved Amendment No. 32:
Page 3, line 38, at end insert—
"( ) The responsible NHS body must give the patient and his carer, if he has one—

(a) notice of the day on which it proposes to discharge the patient, and where informed consent is given, record that on the patient's file, or if a patient lacks the mental capacity to give such consent, record on the file what steps it has taken to ensure that the patient's best interests have been duly considered, and

(b) information about their right to request a review if they disagree with the decision to discharge."

On Question, amendment agreed to.
[Amendment No. 33 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 34:
After Clause 3, insert the following new clause—
"DUTIES OF RESPONSIBLE NHS BODY FOLLOWING NOTICE UNDER SECTION 2
(1) The duties under this section apply where notice of a patient's case under section 2 has been given.
(2) The responsible NHS body, and any other NHS body which is considering whether to provide services to the patient after discharge, must consult the responsible authority before deciding what services (if any) it will make available to him in order for it to be safe to discharge the patient.
(3) The responsible NHS body must give the responsible authority notice of the day on which it proposes to discharge the patient.
(4) The notice under subsection (3) remains in force until the end of the relevant day, unless it has previously been withdrawn.
(5) The responsible NHS body may withdraw the notice under subsection (3) at any time before the end of the relevant day by giving notice of withdrawal to the responsible authority.
(6) For the purposes of this Part "the relevant day", in relation to a qualifying hospital patient, is the later of—

(a) the day specified in the notice under subsection (3); and

(b) the last day of the prescribed minimum interval after the notice under section 2 was given.

(7) Regulations may prescribe a period as the minimum interval after a notice under section 2 is given; but that period must—

(a) begin with the day after that on which the notice under section 2 is given; and

(b) be a period of at least two days.

(8) If the notice under subsection (3) is withdrawn before the end of the relevant day—

(a) the duty under subsection (3) applies again; and

(b) when a new notice under subsection (3) is given, subsection (6) applies again for the purpose of identifying a new "relevant day".

(9) Regulations may provide for—

(a) the time at which notices under subsection (3) are to be given;

(b) the form and content of—

(i) notices under subsection (3); and

(ii) withdrawal notices under subsection (4); and the manner in which such notices are to be given;

(c) circumstances in which notices under subsection (3) must be withdrawn; and

(d) determining the day on which a notice under subsection (3) or a notice of withdrawal under subsection (5) is given (including provision prescribing circumstances in which a notice under subsection (3) is to be treated for any specified purpose as having been given on a day other than that on which it was in fact given)."

The noble Lord said: My Lords, the key amendment in this group of government amendments is Amendment No. 34, which draws together a new clause about the duties of the responsible NHS body. This Bill places duties on the NHS as well as social services, so it is helpful to have a clause that brings this together, out of the previous Clauses 3 and 4. It makes it easier to read the Bill and see what NHS partners have to do.
The new clause mostly repeats what was formerly in other clauses, but also makes some minor changes to clarify procedures around the notice of discharge date, adding a regulation-making power to specify when such a notice must be withdrawn, and the manner in which such withdrawals should be made. Amendment No. 36 is consequential on this amendment.
Amendment No. 35 tightens the test for liability for payment in Clause 4 by clarifying that both notifications under Sections 2 and 3 must have been made and not withdrawn in order for the local authority to be liable for any payment. Again this ensures that the steps that underpin joint planning have taken place before there is any possibility of a charge. It will avoid the circumstances that sometimes occur, whereby the first a social services department hears of a patient is when it is informed that this is a delayed discharge for which it may be responsible.
Amendment No. 42 is to take account of the effect of Amendment No. 24, through which we empowered the local authority to change its decision under Clause 3(3)(b) or Clause 3(4)(b), in the light of a change in the patient's circumstances. If there is a change to either or both of the care packages needed by the patient or his or her carer, to facilitate a safe discharge, it is these services which the local authority must have in place in order to fulfil its duties.
Amendment No. 43 removes a subsection that is now covered with more clarity in the new clauses covering Section 2 and 3 notices.
The major effect of Amendment No. 48 is to circumscribe the power in Clause 4(4) to make regulations setting the amount of the payment. This is in response to the views of the Delegated Powers and Regulatory Reform Committee, which said:
"We accept that it is common for Bills to leave amounts of payments to be prescribed by regulations. However, neither the amount which may be fixed under clause 4, nor the method by which it may be calculated, are limited on the face of the Bill. We do not consider that the position is appropriate in a provision which is central to Part 1 of the Bill. The Committee considers that the delegation in clause 4 would be appropriate if the Bill described at least the main factors by reference to which the amount must be assessed".
That is what we have done in the amendment.
As the consultation paper on this policy stated:
"It is clearly important that the level at which the reimbursement should be set is neither too high nor too low. Too high a payment would be unfair on social services departments … too low a payment would not provide enough of an incentive".
Therefore, the level of the charge is based on the cost of providing accommodation and personal care in a hospital, and is calculated from the average daily cost of treating patients in a nursing-led facility with the costs of medical input from doctors or specialist nurses, overheads and capital removed to reflect the lower costs of care once a patient is ready for discharge. The amendment also makes the drafting clearer by putting this with other provisions about payment into a separate clause, and Amendment No. 44 is consequential on that.
Amendment No. 60 puts the definition of "the relevant day" into the interpretation clause, since this is now mentioned in more than one place in the Bill. I beg to move.
7.15 p.m.
Lord Clement-Jones: My Lords, this is a rather disparate group of amendments, and we should perhaps have been more aggressive in degrouping them. I wish to speak to a rather heterogeneous group of amendmets: Amendments Nos. 37, 38, 41, 45 and 47.
In Committee, we had a reasonably extensive debate on the issue of notice periods and relevant periods. The Minister responded to some extent to the comments of the noble Earl, Lord Howe. However, I am returning to the subject because the Minister was somewhat tentative in phrasing his response. I am not sure that he fully took on hoard the concerns expressed widely, in local government and by voluntary organisations, about the problems associated with treating weekends and public holidays as part of the relevant period. The Minister made it clear that they are not excluded.
The difficulty and cost of providing care services during weekends will be considerable. I do not believe that the Minister and his colleagues have taken that on hoard properly. Arrangements for simple things such as obtaining medicine in rural areas at weekends will be difficult. We in London take it for granted that pharmacies are open at weekends, but that is by no means the case in rural areas.
Research increasingly shows that discharges on a Friday, just before the weekend, are unsound. The Minister may be familiar with research carried out in a Leicester teaching hospital over a period of three years, which showed that the relative risk of readmission for individuals discharged on Friday was three times higher compared with the mean for other weekdays. That kind of research should make the Government sit up and take notice.
In Committee, the Minister made great play of the fact that three days was the absolute minimum for the period. He went on to say:
"I shall consider … whether there is a case for changing the period in the regulations … to cover some of the points made about weekends and bank holidays".—[Official Report, 18/2/03; col. 1046.]
We want to see whether the Minister will translate that proposal into something a great deal firmer. He was at great pains to add that it was not an undertaking. I hope that we can extract an undertaking from him either now on Report or at Third Reading. Today may not be the right hour, but we would certainly pursue that as a very important aspect of this legislation.
I turn to Amendments Nos. 38 and 47. The timing of the start of the period is a crucial aspect of this legislation. I tabled these two amendments to probe what should happen if there is a dispute about discharge or the appropriateness of community care services. It is extremely important for social services that the patient is protected in those circumstances and
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that the clock does not start ticking until those issues have been resolved. The Minister may be interested in the mechanism adopted for an independent panel to adjudicate on the matter in the amendment. However, that is not the central purpose of the amendment.
I turn to Amendments Nos. 41 and 45. As the Opposition Benches have maintained throughout Committee and Report stages, the legislation as currently drafted is one-sided in placing all the burdens and liabilities for delayed discharge on social services departments. The effect is to make delays the sole responsibility of local authorities. The assumption underlying the proposal is that most delays in the system are the fault of social services, whereas in reality the causes of delay are complex and multifactorial. It is far from clear that the issue can be resolved by a one-sided charging system. For example, in some areas, appropriate hospital discharges are still being delayed because of the timing of consultant ward rounds. A one-sided system that penalises one part of the care sector to reimburse another could threaten or diminish partnership working. Indeed, we believe that it almost certainly will threaten and diminish partnership working. It is doubtful that health and social care budgets can work effectively and harmoniously together if the money is simply redistributed away from local authority social services.
The legislation also fails to establish a clear line of fault-based liability or provide for variation of the delayed discharge period. In Delivering the NHS Plan, it is clear that some parity between reimbursement mechanisms in health and social services was originally envisaged. Indeed, the plan states that:
"There will be matching charges on NHS hospitals to make them responsible for the costs of emergency hospital readmissions, so as to ensure patients are not discharged prematurely".
Unfortunately, it has not been possible to table an amendment that falls within the Long Title of the Bill, simultaneously to introduce cross-charging arrangements for delays attributable to failure to provide timely community nursing services and for premature discharges resulting in emergency readmission.
These more limited amendments therefore seek to alter the emphasis of the legislation from a punitive "fining" regime against local authorities into a genuine partnership approach between the NHS and local government based on the whole systems approach. We on these Benches seek safeguards to ensure that expenditure can be recovered where social services departments are wrongly charged and that there is compulsory remission of the charges up to 100 per cent where it has not been possible to discharge the patient because the responsible NHS body has been unable to make available a relevant health and community care service as agreed in the aftercare plan. The social services department in those circumstances should have a right to recover money from an acute trust which has wrongly charged them for a patient who is not their responsibility.
It appears to be the intention that social services will pay the acute trust for any delay due to lack of social services. The legislation needs to engage the whole system and prevent the opportunities for gaming that

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the proposed legislation may create. If there is to be any health gain from this charging system, it will be achieved by directing the charges to preventive healthcare. That means the primary care trusts.
There should also be a clear audit trail to show how the money generated is allocated and used. The money arising from the fines may well be lost in the system and therefore undermine the services and needs of older people which should remain at the heart of this legislation. The key elements of the approach in the above amendments are that any money paid by an authority as a fine for delayed discharge should go into a jointly held fund and that the money from that fund should be spent only to provide health and community care for patients being discharged from hospital. We want to ensure that money paid from social services does not leak from the system and away from community care.
Lord Smith of Leigh: My Lords, I speak to Amendment No. 38A which is in my name. I apologise to noble Lords for returning to the health service ombudsman's ruling on continuing care. However, I shall approach it from a different perspective and try to avoid repeating earlier comments. First, however, I declare an interest as a leader of a local authority and as vice president of the LGA.
The four cases considered by the ombudsman involved individuals who had made contributions for their continuing care, which was essential to enable them to be discharged. They should have been the responsibility of the health service. While it was right for the ombudsman to consider first the cases involving individuals who had made personal contributions to their care, those personal contributions were dependent on the fact that they had savings of more than £16,000. We cannot expect that the forthcoming review will not find cases where individuals have savings of less than £16,000 and responsibility for paying continuing care costs lies with the local authority rather than the individual concerned. As we assume that this misinterpretation and misapplication of the guidance has, as the ombudsman's report states, affected all individuals, there are bound to be cases where health authorities should reimburse local authorities.
The ombudsman suggested a review, and the Minister has said that an appropriate review is taking place. I am sure that we will find cases where health authorities should pay money back to local authorities because of previous mistakes. The Bill provides for payments by local authorities for the problems it has caused the health authorities. However, I think it would be equitable if, before we embarked on new issues, we could resolve the continuing care problems. I hope that my noble friend the Minister will listen carefully and respond on those points.
Earl Howe: My Lords, I rise very briefly to speak to Amendment No. 39. Amendment No. 37, which proposes that weekends and public holidays should be discounted in relation to the defined period of notice
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for the discharge of a patient, closely reflects my own Amendment No. 39—although, in all honesty, I do not think that Amendment No. 39 sits quite so easily in the clause as does my own amendment. However, the noble Lord, Lord Clement-Jones, has put the case extremely well. I propose to do nothing except underline everything that he said, not least the strength of feeling in local government circles on this issue.
Baroness Greengross: My Lords, I shall speak briefly on Amendment No. 35 and touch on Amendments Nos. 37 to 39. In Committee, I was heartened to hear the Minister say that this Bill will be as tough and rigorous on the NHS as it is on social services departments. In Committee, I suggested that one way of achieving that may be to make the terms of the newly updated NHS workbook on hospital discharge subject to a direction from the Secretary of State and to delay the Bill's implementation until the Department of Health is reassured that that is indeed the case. More still can be done, especially given the recent findings which we have discussed today of the health ombudsman's regarding the NHS's responsibilities to fund continuing care. However, this new clause seems very good news.
I turn to Amendments Nos. 37 to 39, which were tabled by noble Lords on the Opposition Front Benches. As we heard, this group of amendments relates to the timing of a Section 2 notice. I am sympathetic to the arguments, which are those of the organisations rather than the older people themselves, that the period should not include weekends and bank holidays. But the truth is that if the procedures are good it should allow enough time in all but a few very complicated cases; for instance, when no suitable care home place can be found locally or where the person's home needs substantial alteration.
Therefore, I think it is right that social services departments should work to meet the deadlines imposed by the Bill as that will benefit older people who do not want to be left in acute hospitals for any longer than necessary. That is what the Bill is about, not the convenience of organisations, although I accept we must ensure that we do not place unworkable obligations on them.
In Committee, the noble Lord, Lord Turnberg, rightly pointed out that the moment a person enters hospital, plans should be put in place for his or her eventual discharge. It should be obvious then which cases are likely to be complex and need social services department involvement. Listening to the arguments on that point, I wonder whether a compromise might be to require the NHS body to give some kind of pre-notification notice—that sounds dreadful!—say, at five days, that it is minded to issue a Section 2 notice in three days' time. In most cases that would not be necessary as the various agencies should already be co-operating with one another, but it might be an extra safeguard to avoid early, unexpected or inappropriate discharge. I believe that the average stay in hospital is 11 days, which would give time for the process to be gone through and would ensure that social services departments are never surprised by a complicated

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discharge case. It would also allow time to take account of bank holidays and weekends, as Amendments Nos. 37, 38 and 39 suggest.
7.30 p.m.
Lord Hunt of Kings Heath: My Lords, I welcome the support of the noble Baroness, Lady Greengross, for the government amendments. She is right to suggest that the reordering of the clauses makes the position much clearer in terms of NHS responsibility. I have sought to reassure noble Lords that that responsibility is in my view as stringent as that of local government. I refer to the noble Baroness's suggestion in the context of good practice. It will be up to local bodies—NHS bodies and local government bodies—to work through the Bill's statutory provisions in practice.
I certainly accept that the whole question of weekends and bank holidays is important. I say to the noble Lord, Lord Clement-Jones, that we need to remember that the test for the discharge date is that it will be safe for the patient to be discharged on that day. Currently, the medical part of that decision is unlikely to be made at the weekend, but it is an important point as regards the discussion of which days count. I shall return to that matter in a moment.
Amendment No. 39, in the name of the noble Earl, Lord Howe, seeks to lengthen the amount of time that local authorities have to assess and make services available to patients. Although it sounds reasonable, we have to take into account what that means in practice. In practice it would mean that when a weekend falls within that period, the minimum compliance period would be five days and, in the event of public holidays which fall next to weekends, the minimum period could extend to six or even seven days. I have real concerns about stating on the face of the Bill that it is acceptable for local authorities to take a minimum of seven days to assess a patient and make services available for that patient. The minimum compliance period on the face of the Bill is a minimum, but there is a risk that the minimum will become the norm. I am concerned that the noble Earl's amendment could in some cases result in worse practice than is currently available in some parts of the country.
I stress that the minimum compliance period on the face of the Bill is a minimum. We have taken powers in the regulations that allow us to specify the minimum period. I shall discuss those later. The number of days on the face of the Bill should be the number we expect all local authorities eventually to achieve for all patients and as soon as possible for the majority of patients.
Of course, working practices in both the NHS and social services will have to change to achieve that. But they ought to do so. That is the whole point. I refer to the poor performance of so many statutory agencies in parts of the country. Working practices must change. The whole purpose of the Bill is to provide the right incentives to ensure that that will happen. I understand the points that were made about bank holidays in particular and, to a certain extent, also weekends. In
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Committee, I said that the Government were considering those points. We have not yet reached a conclusion. I shall take into account the further points made today. I have no doubt that we shall discuss the matter again at Third Reading.
I hope that noble Lords will accept that, although I am still prepared to consider the issues concerning bank holidays and weekends, I shall not give a commitment tonight. I am certainly wary of putting anything on the face of the Bill to suggest that we are moving away from the minimum compliance period. We are aware that the aim of the Bill may pose real challenges for statutory organisations. However, delaying individuals' discharge from hospital inappropriately can have a very negative effect on their future lives. Therefore, we need to be careful that we do not allow statutory agencies to make excuse after excuse after excuse and to walk away from what the Bill is intended to achieve.
I turn to Amendments Nos. 38 and 47, which appear to want to introduce a complaints procedure for both NHS and social services which must be completed before the patient is discharged. I wish to repeat a point I have already made; namely, that the Bill does not affect the right of an individual to make a complaint to the NHS or social services about the care he or she has received. We shall make it clear in guidance that any complaints by patients about the NHS decision on whether or not they are eligible for fully funded continuing NHS healthcare should be dealt with promptly before any dispute under this part of the Bill commences. We have already discussed the steps we shall take to ensure that those decisions are made promptly and at the correct stage in the discharge process. If such a complaint arises after the Section 2 notice has been given—the steps we are taking, and the step I announced in a previous debate will mean that that should be the exception rather than the rule—the social services authority will at that point effectively assess the patient as not needing any community care services from it because he or she needs continuing services from the NHS instead. That means that the delayed discharge clock will not start and the patient will remain in hospital until the dispute about eligibility for continuing NHS care has been resolved.
I turn to Amendments Nos. 40 and 41. They are intended to provide local authorities with an incentive to fulfil the responsibilities they already have. The language in the Bill is clear and unambiguous in describing the circumstances in which the local authority will be required to make a payment. Subsection (4)(b) of Clause 4 states that if by the end of the relevant day,
"it has not been possible to discharge the patient because, and only because",
the responsible authority,
"has not made available for the patient a community care service which it decided under section 3(3)(b) to make available for him",
the responsible authority must make a payment of the amount prescribed in regulations for each day of the delayed discharge period. That is, local authorities will become liable for a reimbursement payment only

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where the delay is solely their responsibility. I believe that we have in the Bill a clause that is a great deal simpler and leaves less room for dispute than the suggested amendment. It is unambiguous that the local authority either makes a payment or it does not.
I turn to Amendment No. 45, in the name of the noble Lord, Lord Clement-Jones, which seeks to add to the money flows around reimbursement; it deals with where reimbursement payments should go and how the money should be spent. As I said in Committee, this amendment misses the whole point of the Bill. The point is to provide a financial incentive for social services to invest in community care services that are needed to prevent delayed discharge in the first place. It is not to establish a fund to spend on community service. It detracts from the very sharpness and clarity of relationships and responsibilities that the Bill will provide. The noble Lord, Lord Clement-Jones, wants to fudge the situation by creating a cosy community fund so that the money goes round and round but no individual statutory body will feel responsible for implementing the provisions effectively. In their own right, local authorities, acute trusts and primary care trusts could set up agreements and decide how to spend any resource. However, that would be for local decision and it is a far cry from the clarity that we wish to see in the provision.
I turn to the amendment tabled by my noble friend Lord Smith. He has enormous experience in this regard. I know that this involves a case in his own area but there is no doubt that overall his own authority and the health service in his area have done much good work in relation to delayed discharges. However, his amendment has already been covered by some of our discussion. First, I made it clear that in the case of continuing care, we will be directing the NHS to carry out a continuing care assessment prior to the issue of the Section 2 notice. That means that any dispute in this regard would already have been resolved. I have already spoken in detail to that point earlier.
In the case of the registered nursing care contribution, that would unnecessarily restrict the process and the incentives for the local authority to act quickly and—this is my real concern—could encourage local authorities to dispute every decision to avoid charges. That is why it is much better that any charges should be incurred and adjustments made retrospectively, following the outcome of the relevant reviews and appeals. The emphasis in the Bill must be on getting on with it and on sorting out what the individual patient requires and ensuring that that patient receives it. The issue may fall to dispute resolution but the key point is to ensure that the patient comes first.
That concludes my comments on the amendments. I believe that while I accept that legitimate points have been raised, we should resist the temptation to move away from the clarity in the Bill.
On Question, amendment agreed to.
Clause 4 [Liability to make delayed discharge payments]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 35 and 36:
Page 4, line 12, leave out subsection (1) and insert—
"( 1) This section applies where notice of a patient's case under section 2 and notice of the proposed discharge day under section (Duties of responsible NHS body after notice under section 2)(3) have both been given (and are in force)."
Page 4, line 17, leave out subsections (2) and (3).
On Question, amendments agreed to.
The Deputy Speaker: My Lords, because Amendment No. 36 has been agreed to, I cannot call Amendments Nos. 37 to 39 or 47.
[Amendments Nos. 37 to 41 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendments Nos. 42 to 44:
Page 5, line 8, at end insert—
"( ) The references in subsections (5) and (7) to services "decided under" section 3(3)(b) or (4)(b) are, in a case where the decision in question has been altered under section 3(6C), to any services specified in the altered decision."
Page 5, line 14, leave out paragraph (c).
Page 5, line 24, leave out subsections (9) and (10).
On Question, amendments agreed to.
[Amendment No. 45 not moved.]
Baroness Andrews: My Lords, I beg to move that the further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 8.45 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Children
7.46 p.m.
Baroness Walmsleyrose to ask Her Majesty's Government how they will respond to the report on the United Kingdom's treatment of children published by the United Nations Committee on the Rights of the Child on 4th October 2002.
The noble Baroness said: My Lords, I am delighted at last to have the opportunity of debating in your Lordships' House the report by the UN Committee on the Rights of the Child on the UK's performance in relation to its children. I am grateful to the Minister and the select band of noble Lords who will speak on this important subject tonight. I am sure that we shall have quality if not quantity. I must state my interests. I act as a parliamentary ambassador to the NSPCC. It is an unpaid position, but I am grateful to the charity for all that it does for children and for the very useful information that it provides to me and my fellow ambassadors.
The UK signed up to the Convention on the Rights of the Child 11 years ago, with all-party support. In doing so, it agreed to be legally bound to implement

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the full range of economic, social, cultural, civil and political rights of children. Since it was adopted by the UN General Assembly in 1989, the convention has become the most ratified of all international human rights treaties and it has been accepted by 191 states. The convention's principles and standards are binding on all those who have ratified it and, in order to monitor progress on implementation, the UN has set up a committee of international experts, which reports on signatory countries approximately every five years.
The latest investigation was conducted last year and in October the committee produced an extensive report. While it recognised those areas where progress has been made on the issues of concern raised in the previous report in 1995, there were many areas where it felt that insufficient progress had taken place.
The issues covered by the convention fall into many departmental portfolios. However, since she is now the de facto Minister for children, I hope that the noble Baroness will be able to answer most of my concerns. Before I turn to specifics, there were a number of fundamental issues that concerned the committee. It commented that the rights, principles and provisions of the convention should be incorporated into all domestic law and that, although the devolved administrations had ensured that, it had not been done state-wide in the UK. In order to address that, the committee recommended that a permanent body be identified whose role it is to ensure compliance with and implementation of the convention as well as dissemination of information and training about children's rights. It must be overtly and primarily the role of such a body to implement the convention. I wonder whether the noble Baroness the Minister can tell me whether there is any intention to set up such a body or to allow any existing body, such as the Children and Young People's Unit, to evolve into it. There is also clearly a need for a children's commissioner for England but I believe that other noble Lords will address that issue.
The experts were concerned that in the UK we do not have a "rights based" approach to policy development and the convention has not been used as a framework for the development of strategies at all levels of government.
It seems to me that in the convention we have a model which, if rigorously adhered to when developing policies, would give British children the best possible chances in life. However, the opportunity of using it is often missed. Policies based on adult systems and aspects which affect children are often added at the end of the process rather than at the beginning. As good policies are evidence based, we need quality information about the status quo, but it seems that we do not properly monitor the implementation of the convention. We do not even know how much we spend on our children. The committee recommended that budgets must be transparent to allow analysis of the proportion spent on children and the maximum amount possible allocated to identified priorities.
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In order to identify those priorities the committee recommended that we establish a nation-wide system to collect data about children under 18 so that we are clear about the current situation and can develop a national plan of action. It often concerns me that the Government take a broad brush approach and many children are left out of the equation. For example, the concentration of Sure Start, excellent though it is, on the 50 most deprived wards leaves many children in the most deprived sections of society out in the cold because they live in pockets of poverty in otherwise affluent areas.
There were many specific concerns raised by the committee. I do not have time to address them all so I shall focus on five. First, the committee repeated its criticism of 1995 saying that it "deeply regrets" the UK Government's refusal to remove the "reasonable chastisement defence" often used in the courts by adults to defend physical violence against children. The convention requires states to protect children from "all forms of physical or mental violence". The committee requires the Government to do that "with urgency" and,
"to promote positive, participatory and non-violent forms of discipline and respect for children's equal right to human dignity and physical integrity".
I have repeated that plea many times in this House. It is unbelievable to me that, in a society that claims to be civilised, the most vulnerable do not have equal protection under the law of assault. Given all the research that shows the damage to brain development and subsequent mental and physical health and sexual function done by violence itself and the stress associated with violence, I find it hard to understand why the Government are so adamantly opposed to implementing that part of the convention. Given what we know about the link between the experience of physical abuse as a child and the cycle of future violence against children when the victim grows up, why will the Government not put a full stop to it right now?
The second matter that I would like to highlight is the committee's concern about the Government's refusal to withdraw their reservation on Article 22 of the convention with regard to immigration. We do not treat asylum seeking children well in this country. Many of them are detained with their families outside the general community; they have access to only 76 per cent of the benefits available to other families and often have no access to the normal health, welfare and educational facilities that resident children have. When they turn 18 unaccompanied children are dispersed to other parts of the country just when they are settling down, away from the only friends they have. That does not help them to settle down quickly and become part of the community. All those matters were criticised by the committee and I wonder whether the Minister will tell us how the Government plan to address them.
The third area of great concern to me is that the committee felt that the UK's record on the rights of young offenders has worsened since 1995. In this country we lock up more children and crirninalise

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children at a much earlier age than anywhere else in Europe. With an age of criminal responsibility of 10 in England and eight in Scotland, we are well below the average of 13 across Europe. The committee urged the Government yet again to raise "considerably" the age of criminal responsibility and yet recently in your Lordships' House, the noble and learned Lord, Lord Falconer of Thoroton, confirmed that the Government have no such intention. I ask the Minister what can possibly be the justification for that? It treats children inappropriately and leads to ridiculous paradoxes in the law such as the proposals in the current Sexual Offences Bill, which claims that 12 year-olds can understand enough about rape to be guilty of it, but not enough to be able to consent to sex.
The report regretted that children are still detained in the same penal facilities as adults saying that, where it is absolutely necessary to detain children, they should always be in special facilities. However, the experts recommended that detention is used as a measure of last resort and for the shortest possible period of time, with advocacy services and an equal statutory right to education, health and protection services. Sadly the prison system is failing to protect the children in its care. There are far too many cases of children who are abused and attacked in prison and 14 children have committed suicide in prison since 1995. Most could have been avoided if the right facilities had been available.
Fourthly, this country is the fourth richest in the world, yet almost one in three of our 13.5 million children is living below the poverty line. Although some progress has been made to take children out of poverty, there is still a long way to go as the committee identified. It asked for a review of the policies that give 16 to 18 year-olds fewer benefits and social security allowances than adults and a lower minimum wage. It also urged better efforts to address the causes of youth homelessness and all possible measures to accelerate the elimination of child poverty.
Finally, on the health front there were several recommendations, some of the most important being those about the high level of teenage pregnancies and the lack of support for teenage mothers. Mental health was another particular area of our health services picked out as needing major improvement. Mental health is the third most common health problem in the country and, if we can treat it when people are young, we can save an awful lot of human misery. I hope that the Minister will be able to tell us what is being done to improve mental health services for young people.
We do not own our children. We have the privilege of caring for them, loving and guiding them while they are young. However, we owe them the best possible policies based on all the knowledge and expertise available to us. The UN committee is made up of 10 of the world's greatest experts on child development, education, health and welfare. We should listen to what it has to say and put it into practice. I challenge the Government to show their commitment to our children by implementing every recommendation in
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the report. After all, we have signed up to the UN Convention on the Rights of the Child and we should implement it without any reservation.
7.57 p.m.
Baroness Massey of Darwen: My Lords, I congratulate the noble Baroness, Lady Walmsley, on her tenacity—I believe she has tried four times—in securing this debate. I also congratulate her on a stimulating and challenging introduction. I look forward to the Minister's reply as I know that she too is genuinely interested in issues related to children and has led many initiatives both in health and education. I should declare an interest in that I am the co-chair of the All-Party Parliamentary Group for Children and a trustee of the Trust for the Study of Adolescence which I shall mention later. Rather than go through the many points in the UN committee's report, I shall concentrate on what I think are some important themes, and I shall support the notion of a children's commissioner.
We have heard the Government put a great deal of emphasis on the well-being of children. There are many initiatives—the setting up of the Children and Young People's Unit, Sure Start, Connexions, Quality Protects and the Children's Fund to name but a few. However, while much good work is being done, there is a lack of cohesion. The child needs to be the focal point. Confusion at a local level among professionals and families can mean that operating systems are a focal point rather than the child. Today I hope that the Minister will be able to reassure me that effort is being put into co-ordinating services. During a debate in your Lordships' House a few weeks ago, co-ordination between health and social services in delivering for children was discussed. As I said then, many reports, both from the Government and the voluntary sector recognise co-ordination as a huge problem.
Turning to my themes, it seems to me that we simply do not know enough about some basics with regard to children as referred to by the noble Baroness, Lady Walmsley. For example, do we analyse at a national and local level? What proportion of different departmental budgets are being spent on children as a whole? Do we have, for the countries of the UK, data on children as a whole—their health, their habits and their education?
I know that we have data in different government departments, but children do not come in departments, but as a whole. Reports, such as the key data series on young people from the Trust for the Study of Adolescence and the recent report, The Well Being of Children in the UK from the University of York and Save the Children are extremely helpful. That latter report calls for,
"the collation of country level monitoring of child well-being into a routinely produced comprehensive report on the well-being of children in the UK".
Such information would, if comprehensive and accessible, be extremely useful to those working with children and young people and their families.

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Other themes in the UN report deal with adequate participation of children in society—sensitivity to their needs, their rights and entitlements and their best interests as paramount. I think that we have got better at listening to children. Many organisations and government departments have focus groups for young people. Many schools have school councils. We have a youth parliament. But it all sometimes feels disjointed and tokenistic.
Issues relating to children should be analysed in every government Bill and the costs and implications set out in relation to action needed in order to implement the Bill. The All-Party Parliamentary Group for Children has done some of that analysis, as have children's organisations, but centralisation of knowledge would be more powerful. Again, it is about placing children at the centre of legislation. They matter a lot, perhaps more than anything.
I had the pleasure last week of attending the meeting jointly organised by the All-Party Group for Children and that for families, where the Children's Commissioner for Wales and the ombudsman for Norway spoke about their roles and responsibilities. Hearing them reinforced my view that England needs a children's commissioner, who is independent of government. Wales and many other countries have one. Northern Ireland will have one. As much as anything, such a post says that children are important; it demonstrates that children are taken seriously; that they have rights and entitlements; and that their best interests are paramount.
The idea of a children's commissioner for England has been mooted for some time by children's organisations, for example UNICEF, Save the Children Fund and the NSPCC. Both the Norwegian ombudsman and the Welsh commissioner emphasised the need for independence. Both emphasised that the office should be made known to children so that they could actively relate to the commissioner, for example by being able to meet him or her and being able to telephone his or her office directly.
The Norwegian ombudsman reflected that children did not want tokenism, they want a real adult to represent their rights, not someone pretending to be young by wearing a baseball cap back to front. How long, until we in England embrace the concept of an independent commissioner for children who will co-ordinate activity, share information about children and collaborate with government departments, the voluntary sector, families and children to promote not only children's welfare but their entitlements and their rights?
8.3 p.m.
Baroness Howarth of Breckland: My Lords, I begin by congratulating the noble Baroness, Lady Walmsley, on initiating this important debate. Perhaps I may also congratulate the Government on the many initiatives that have been developed since they came into office to improve the lives of children and on their targets in relation to poverty, education and child health. It is within the framework of equal
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access to opportunities that all our children will reap the benefits of our society. But noble Lords would not expect me to say that without also saying, "There remains much to be done".
I should like to take a few minutes to draw attention to areas that are not only the subject of the UN report but also the focus of concern for many organisations working for children in the UK. Today I had the privilege of chairing a conference for the National Society for the Protection of Children reviewing the legislation relating to children in family proceedings with particular focus on the Children Act 1989 and its relationship to the convention. I do not hold such a position as an ambassador; I just help out.
With the NSPCC conference fresh in my mind, I wish to bring your Lordships' attention to an area where we are not meeting the human rights of young people, where we would all be at one in our belief that we should be meeting the need, the right, enshrined in the convention: the right to family life. What surprised me today was the response from many young people in care who told of the way in which they were being deprived of this basic right. Together with the Who Cares? Trust through the Who Cares? magazine, the views of young people in care were sought through a questionnaire—700 young people responded.
I commend the report to your Lordships. It has direct messages from this group of young people. Not only is the right to family life enshrined in the convention, but the Children Act 1989 guidance and regulations emphasise the importance of maintaining contact between child and family members and other important people in their lives unless this is identified as being clearly contrary to the child's interests. Sixty per cent of the respondents to the questionnaire said that they did not see enough of their fathers. More than one-third of the sample did not see enough of their mothers or siblings. A substantial proportion did not see enough of their friends. Half did not see enough of their previous carer. These children are either not being listened to or their wishes are being overridden, or there is simply not enough time in the system allocated to ensuring that these basic needs are met.
It was interesting that where social workers were there to help such children, they clearly made a difference. I cannot pretend that achieving family contact is easy, but in the words of the NSPCC report, in these days of high-speed low-cost options available to enable contact, is it really necessary for children separated from their families to be as isolated as they clearly are? Some still find it difficult to reach a simple helpline such as Childline as phones are still not available in some homes and institutions. It does not have to be like that. In the words of one young woman, "I think being in care is brilliant and I 'wouldn't change anything". I wonder what the Government would propose to have every child in care able to say that.
Another astounding fact was that 50 per cent of the children did not know the name of their local authority—their corporate parent—and that is after several years of the Quality Protects programme.

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One of the committee's recommendations is that the Government should carry out large-scale public education campaigns and programmes on reducing child death and child abuse. This debate gives me the opportunity to put on record my thanks on behalf of all those involved in the "Stop It Now!" programme, which I chair, for its partnership with government departments—in particular, the Home Office—that will result in awareness programmes being developed, first in pilot areas and then in the wider community. "Stop It Now!" works with schools, local groups, professionals and, indeed, abusers. We have provided a variety of materials and are now working on a leaflet to advise parents of children who abuse other children. I hope that the Minister and her colleagues will continue that partnership, which goes far to meet the expectations of the UN committee.
However, like my colleagues, I cannot congratulate the Minister on the position of children in the juvenile justice system. Children are being sent into detention in far greater numbers than in other European countries. Indeed, Anne Owers, Her Majesty's Chief Inspector of Prisons, speaking at the Sieff conference last September, compared the juvenile justice system in England and Wales unfavourably with that which existed in Sudan years ago, which has dramatically improved.
In our advanced society, our children do not go into detention as a last resort, as the convention recommends. If we are to continue that policy, those children should at least be given the full protection of the Children Act 1989. Local authorities seldom see them; needs assessments do not take place; and they are ignored by area child protection committees. Following the successful challenge to the Government's position by the Howard League for Penal Reform, will those youngsters have more of their human rights met?
I should have liked the opportunity to raise the chaotic situation existing in the Children and Family Court Advisory and Support Service, but perhaps all I can do in the available time is to ask the Minister when waiting time will be reduced before children will receive the representation to which they have a clear human right. Indeed, when will Section 122 of the Adoption and Children Act 2002 see the light of day?
There is no doubt that the Government care about children—I have witnessed that—but are we to have a children's commissioner? I was not always convinced that that would be the best way forward for England, with our complex regions and high population. What convinced me was the Laming report. If we must have such complex structures to meet our children's needs, why not just have a commissioner for children and have done with it? At least then someone with no other agenda would be looking after children and the Government would have someone to respond more effectively to the issues raised by the UN convention committee.
8.10 p.m.
Lord Carlile of Berriew: My Lords, I, too, congratulate my noble friend on securing this debate on a most important subject, and for the excellence of her introduction.
I declare two interests: the first as the chair of the National Association for the Care and Resettlement of Offenders' committee on children and crime; the other as the independent chair of the Welsh Assembly government's recent review on the safety of children in the National Health Service.
On the first, I merely echo what has already been said about the age of criminal responsibility and the criminal justice system. Our committee's reports speak for themselves. I wish that the Government—who have focused well on social exclusion in some areas—were a little more brave in this one and focused on the fact that the children who appear before the criminal courts are generally excluded and that we need to include them, not concentrate on crime and punishment, which are often a blunt instrument.
On the second interest, I simply draw attention to the excellent work done by the Welsh Assembly since we produced our report with 150 recommendations—almost all of which are being put into practice and, I believe, have strengthened the position of children's safety in the NHS in Wales, compared with England.
I want principally to speak on a subject that all noble Lords who have spoken have mentioned: the possibility of having a children's commissioner in England. I start my comments from the Welsh perspective.
When I chaired the Assembly review that I mentioned, I spent some time with Peter Clarke, then the new Children's Commissioner. He is doing an excellent job in Wales. I do not suggest that the same be provided in England, because he is underfunded; he has insufficient capacity to undertake case work; and his budget is pathetically poor for his amount of work. In my view, far greater value for money could be achieved if his office was properly funded. With his abilities and his team, he could achieve so much more he could achieve so much if he were able to do the job to the full.
One of the most valuable conclusions of the UN committee is that we should have a children's commissioner in England. However, I urge the Government to avoid using terms such as a "Children's Czar". Quite apart from the use of such language giving a misleading view of history, it also provides a completely naïve view of the needs of children. I deprecate reading such language in the newspapers. A sort of Uncle Mac in boots just will not work.
On the other hand, I urge the Government not to establish an enormous bureaucracy, which would simply lead to the children's commissioner shuffling a forest of what I suspect might come to be known as pied paper. Rather, I suggest that they should take account of three elements in setting up a children's

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commission for England. A children's commissioner should be answerable to these Houses of Parliament through a children's commission, via a Minister.
First, there should be a structure. It needs to be a regional structure. Wales has an ideal critical mass for a pilot study—2¾ million people. It is unrealistic to translate that to 50-odd million people without setting up a structure. I would like to hear a commitment from the Government, not only to set up the structure, but to take the time needed to do it properly and to provide the money needed to do it properly.
Secondly, I urge that a children's commission in England should have the powers it needs to do the job properly. At the root of that is responding to children. Children in Wales ring up the Children's Commissioner, who has a help-line and is accessible. The starting point should be access for children and explanation available to them so that they are empowered to take their own rights in their own hands. That means that he must be able to respond to those rights; he must have the people to do the casework; and he must have enough resources to be able to take cases to court, including judicially reviewing local authorities and government. So powers are very important.
Thirdly, he must be accountable. A children's commission can be accountable to Parliament through the means that I outlined. It must be a transparent process; otherwise it will inevitably become misleading and bureaucratic. So I urge on the Minister that it is now time to give a commitment to a children's commission headed by a chief commissioner with the structure, powers and accountability that I described. I say to the Minister that if, partly as a result of the UN committee's report and partly through what one can fairly see as developing government policy towards children, the Government can announce progress towards a children's commission, it will be seen as the greatest single contribution to the welfare and rights of children that any government have introduced since child labour was removed from the factories of this country.
8.16 p.m.
Lord Chan: My Lords, I add my congratulations to the noble Baroness, Lady Walmsley, on introducing this short debate on the treatment of children in the United Kingdom. I declare that I am a patron of the International Child Health Group of the Royal College of Paediatrics and Child Health. The UN report of the Committee on the Rights of the Child identified many issues requiring the Government's attention. But I shall focus on only three: first, the need for all national policies to incorporate children's rights; secondly, social exclusion of vulnerable children; and, thirdly, children of ethnic minority groups and looked-after children in schools and in private fostering.
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Like other noble Lords, I congratulate the Government on their interventions for the benefit of children. I also agree that they appear not to be co-ordinated and that, therefore, there is much to be done. One of the general concerns of the UN report was,
"the absence of a global vision of children's rights and its translation onto national plan of action".
Clearly, government departments need to listen to children and young people to define their needs and perceived priorities. That implies that the impact on children of all policies drawn up by the Government should be assessed. Will the Minister tell us how the Government plan to implement that recommendation?
If voluntary-sector organisations such as Childline and the NSPCC listen to children, surely the time has come for the Government also to implement plans of action wanted by children. Among urgent children's issues gathered by voluntary organisations is the need to reduce and deal effectively with bullying in schools.
The Government's most recent initiative on social exclusion is aimed at ethnic minority groups, some of whom have younger age profiles than the majority population. For example, the 2001 Census of Population found that 38 per cent of Bangladeshis were under 16, and 55 per cent of the mixed group—one white parent and one from an ethnic minority group—were under 16.
Although Chinese and Indian pupils tend to achieve higher than the national average at GCSE, those from African, Caribbean, Pakistani and Bangladeshi backgrounds achieve significantly below the national average. Most of the ethnic minority children in inner-city schools are not achieving their potential.
In 2000–01, black pupils were more likely to be permanently excluded from schools in England than children from any other ethnic group. Children in that group, particularly the boys, were up to four Limes more likely to be permanently excluded from school. As a consequence, they are at risk of failing to achieve their educational potential. In February 2002, the Joseph Rowntree Foundation published findings on the needs of excluded young people in multi-cultural communities. Significant numbers of 16 to 17 year-olds were disengaged from education, employment and training. Many were unknown to the careers services, and a disproportionate number was from minority ethnic groups. Looked-after children were strongly represented in the sample. Nearly half of the study group had been excluded front school or had dropped out of education of their own accord at an early age.
Young people from ethnic minorities had often experienced racism in school and among those looked after in care. Mainstream agencies appeared to have been unable to respond adequately to racial diversity. Local voluntary organisations were often the only agencies in contact with such young people, and their help was greatly appreciated, particularly among those from ethnic minority groups. Although the underlying causes of that exclusion are complex and include the

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effects of social class, I ask the Minister to outline the Government's response to the issue highlighted by the UN report. In particular, how will we monitor vulnerable children who are exposed to discrimination? One commendable government intervention is the high profile initiative aimed at reducing truancy by targeting feckless parents who collude with their children's absence from classes.
The issue of private fostering affects large numbers of African children born abroad and sent here for education. At the Report stage of the Adoption and Children Bill on 23rd October last year, I drew attention to the estimated 10,000 children being cared for under private fostering arrangements. That is recorded in Hansard at col. 1398. The tragedy of Victoria Climbié emphasised, among other shortcomings of our social service and health systems, the urgent need to register all private foster parents. Will the Minister tell us of the Government's plans to register private foster parents?
In conclusion, I draw to the Minister's attention paragraph 24 of the UN committee's report. It says:
"The Committee requests that specific information be included in the next periodic report on the measures and programmes relevant to the Convention on the Rights of the Child undertaken by the State party to follow up on the Declaration and Programme of Action adopted at the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, and taking account of … aims of education".
There are complex issues to be addressed for the benefit and welfare of all our children, and the Government should seriously consider the appointment of an independent commissioner for children.
8.23 p.m.
Baroness Sharp of Guildford: My Lords, I too congratulate my noble friend Lady Walmsley on initiating the debate. It is an important debate and, as she said, we have waited a long time for it. I echo the words with which my noble friend finished her speech. We signed up to the convention 11 years ago and it is about time that we implemented it in full. As Cherie Blair, the Prime Minister's wife, said, we are still not according full rights to children, as they are entitled.
The report by the UN commissioners is a shocking indictment of what has gone on in this country. We are—or we claim to be—the fourth richest country in the world, and we have had strong economic growth in the past seven years. Yet we still have about 3.4 million children—one in four—living in poverty. The figure is better than it was; recently published research by David Piachaud and Helen Sutherland indicates that 750,000 fewer children live in poverty. Nevertheless, one in four is still a shocking statistic.
Not only do children live in poverty; our society is too often violent towards them. Many is the time when a child misbehaves in a shop that the parent's response is to clip him or her around the ear with a few choice expletives. That experience repeats itself. There are problems with children in school. These children,
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when frustrated, hit out violently. They lash out, they are abusive and their language, too, is not what one would want it to be.
The result is a vicious circle: the commissioners drew attention to the vicious circle of the high rate of pregnancy. They called for better parenting classes and better facilities for teenage mothers. Yes, we have Sure Start. It is working well. But, as my noble friend mentioned, Sure Start is in only the 50 most deprived areas. It is in the process of being rolled out, but it must be rolled out faster.
As regards exclusions, there is the incredible statistic that 16 per cent of exclusions are now primary school children. We know that excluded children are frequently out of school completely. That does not help with their integration in society. The problem of bullying is another issue to which the commissioners drew attention. We must develop within schools more programmes—for example, nurture groups—which help children develop trusting and loving relationships between themselves.
Furthermore, we are not listening to children enough. Every time there is an education Bill in this House, a group of noble Lords combines to ask the Minister to place on the face of the Bill the right of children to be listened to. That is vitally important. We have the facility of Childline. The noble Baroness, Lady Massey, referred to schools councils and the youth parliament. But we do not automatically listen to children in this country.
Finally, a number of noble Lords have raised the matter of a children's commissioner. I, too, participated in the seminar last Wednesday when Peter Clarke from Wales and Trond Waage from Norway spoke about their countries' experiences. I was moved by what Trond Waage said. It was interesting that initially there was a great deal of distrust about his appointment. The vote in the Norwegian Parliament was 51 for and 49 against a children's ombudsman.
The arguments against were: why was he needed? Would his very existence not weaken parental authority? Was it not an unnecessary and expensive piece of bureaucracy? One can hear those arguments readily being touted around in this country. I was moved by what Trond Waage said that he did. It was summed up in the three words, "protection", "provision" and "participation". There should be protection for children in cases of child abuse, bullying and unfair treatment. Provision should be made for children by speaking up for them in legislation and ensuring that their interests are considered in the legislative process. Children should participate. They should be encouraged to contact the Internet parliament by telephone or on the website. He said that there was an active debate on the question of war in Iraq on his Internet parliament.
Clearly, children have trust in him and are willing to telephone him and talk about the problems that they encounter. Childline is good, but not good enough. Children's committees and Cabinet committees for children have been established. The Climbié inquiry showed how poorly co-ordination is working at the

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moment. The noble Lord, Lord Lamming, suggested children's trusts. Like others, I consider that that muddies the waters. It would be much better—and long beyond time—for us to establish a children's commissioner.
8.30 p.m.
Lord Cope of Berkeley: My Lords, this debate crosses so many departmental boundaries that I was keen to speak in it. We have had an interesting discussion and I am sure that we are all grateful to the noble Baroness, Lady Walmsley, for introducing it. Our debate forms part of a process that will continue long beyond this evening.
In one sense it is rather odd to be debating today this particular United Nations report, at a time when the whole authority of the UN is under threat and its resolutions from 12 years ago are being flouted. But we must not be diverted on to that subject because the report on the treatment of our children covers important matters.
However, the report should be seen in context. It was issued with others on different countries, including Sudan and Israel, where I am linked with two charities involved in children's issues. I know a little of the position in those countries, which is much more difficult than is the case for any child in this country. However, real points have been made in the report and certainly we should not be complacent.
The first question raised both in the report and by the noble Baroness, Lady Walmsley, was whether we should alter the law on reasonable chastisement. The Government have said no and I am inclined to agree with them. Many people, including myself, accept that the occasional smack from a parent should be allowed—although not, I hasten to add, as the first resort referred to by the noble Baroness, Lady Sharp, in her reminiscences from the supermarket. We are also all agreed that beating children is a most dreadful abuse which quite rightly deserves and gets, when convictions are obtained, long prison sentences. So the argument hinges on how to define what is reasonable, the subject of many debates in this House. I have not seen evidence that the law as it stands has been misused to prevent the conviction of child abusers and I do not think that it should be changed without further evidence or without considering substituting the wording for what might be called "more reasonable" terms. However, we all know the difficulties of changing legal wording.
The next question was whether we detain too many children and young people. Certainly it is wrong for young people to be sent to adult prisons. I accept that the Government are doing their best to avoid that, but in fact more young people are being detained now than was the case previously. However, in some cases detention is necessary. Given that, the point I want to stress is that we must try to make detention constructive and useful for the young person concerned. More effort must be made to include into the regime proper education, drug rehabilitation programmes and so forth for every young person.
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Often young offenders come from highly unsatisfactory backgrounds and their period in detention can provide the opportunity to help them realise that they can be useful citizens, and give them the time to gain hope for a better life through new skills and education. I saw efforts of that kind being made in my former constituency in a young offenders centre where they tried out new schemes and different ideas proposed by the Home Office.
I do not think that it will help to put on local authorities a statutory duty to safeguard children in prison, which has been the effect of last year's court case. Prisons are already overseen by boards of visitors—they are to be reformed and renamed, but we know what they are—as well as by prison inspectors, the Audit Commission, Members of Parliament and so forth. Furthermore, local authority social services departments already have a great deal to do in carrying out their own duties.
We all know that the Government are missing their targets for reducing child poverty. The economic situation of the country is ominous at the moment. I shall not develop that except to say that it bodes ill for child poverty as well as for other objectives.
I shall not say much about sexual abuse and exploitation, not because those issues are not of the first importance and extremely worrying, but because soon we shall start our debates on the sexual offences Bill. We shall then be able to hold a more structured discussion than would be possible tonight.
The report was also rightly concerned about the level of teenage pregnancies. The decline in our society's values shows up in a truly awful way in this matter. In comparison with other European countries, our record is shaming. It seems obvious that lax and permissive attitudes towards sexual relations in our media and wider society contribute to the problem. Of course education in our schools, through doctors' surgeries and other health centres, is essential. Parental attitudes are also an important contributory factor, but many of the teenagers concerned have had little or no help from that quarter. Indeed, teenage pregnancies mean teenage parents, and that too often leads to another generation of deprived children and worse.
The report is about the rights of the child, but rights have no value unless someone else has both the duty and the means to confer them. After all, the great Education Act 1944 did not confer a right to education. It placed on local authorities a duty to provide schools and on parents a duty to ensure that their children attended. Whenever we consider rights, we must consider the duties which go with them.
The duties fall mainly on the Government, but some could be shared by the proposed children's commissioner. The noble Lord, Lord Carlile, indicated that careful thought is required in designing how that office should function and in taking the discussion forward.
But duties fall also on parents. The noble Baroness, Lady Howarth, spoke of the right to family life. Parents should be the principal people on whom children lean. We should always frame our policies to

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support parents and families, and, indeed, to help provide substitute families through adoption and fostering when the actual family does not exist or cannot give support, as we discussed at length during the passage of a Bill not long ago.
We know that there is a strong link between neglect and deprivation and child criminality. The report helps us to see ourselves as others see us, as the poet has it. That is very important because our children, after all, are our future.
8.37 p.m.
Baroness Ashton of Upholland: My Lords, I, too, am grateful to the noble Baroness, Lady Walmsley, for initiating the debate. I associate myself with her remarks about the NSPCC. I pay tribute to her formal role, and to the informal role of the noble Baroness, Lady Howarth, with that august charity. I am also grateful for the opportunity for your Lordships' House, as a body, to focus its mind on these important issues. The Government are committed to raising public awareness of the convention and its principles across the nation. Our debate will help in that task.
As the noble Baroness, Lady Walmsley, said, the UN Committee on the Rights of the Child published its observations on the UK's implementation of the convention on 4th October. In doing so, the committee praised much of what has been done in the UK. It acknowledged the development of structures within government, including the role of the Minister for Children and Young People and the Children and Young People's Unit, which is, as a part of recommendation 13, the highly visible permanent body to which the noble Baroness referred.
The committee praised our commitment to ending child poverty and to increasing children's participation and our intention to publish an overarching strategy. It also highlighted some concerns, many of which, if not all, have been raised by noble Lords today and on which I shall focus my brief remarks.
The convention is necessarily wide-ranging. Its provisions relate to every area of a child's life. Despite being described as Minister for Children—a post I quite fancy—the responsibilities for implementing the convention lie across different government departments. Each department is aware of the specific recommendations and will take them into consideration.
The noble Baroness, Lady Walmsley, questioned the lack of a rights-based approach. The overarching strategy for children and young people will set out our agenda for children over the next 10 years and the outcomes for which we are aiming. It will be framed within the principles of the UN convention, which will give us a rights-based approach.
As noble Lords would expect, we have taken measures already. The Government have laid an explanatory memorandum in another place which has started the process of ratifying Optional Protocol II of the UN Convention on the Rights of the Child in
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regard to an issue we have not discussed in your Lordships' House—that is, under-18s in the Armed Forces. It is an issue about which noble Lords will be concerned.
In England we shall shortly be producing the overarching strategy for children and young people, which, as I said, takes the UNCRC as its framework. It will aim to improve outcomes for children and to ensure that they play a full part in society.
At the UK level, my right honourable colleague the Minister for Children and Young People is currently considering how we can co-ordinate implementation of the convention more effectively. That will be important in the lead-up to our next report to the committee in 2008.
I now turn to the specific issues raised. I agree wholeheartedly with my noble friend Lady Massey and with the noble Baroness, Lady Walmsley, on the issue of the collection of data. We absolutely recognise the need to do this, and to do it as effectively as possible.
The national statistics education and training theme group, which has membership from all four UK administrations, will be looking at the extent to which information covered by the convention can be compiled and disseminated on a consistent basis. The committee welcomed the intention to publish what we describe as a regular state of children report on the key outcomes for children and young people in England as part of the forthcoming strategy.
The noble Lord, Lord Chan, and the noble Baroness, Lady Massey, raised the question of the co-ordination of services. I agree that this is critical. It is why we have moved towards the children centre model in terms of our early years provision and the children trust model in terms of the processes of bringing together education, social care and health in a way that will be more effective. The early years model will reach 650,000 children in our most deprived communities, but will be a model on which we can build right across the nation and will indeed mainstream some of the key lessons that we have learnt from the policies on Sure Start.
It is a particularly critical and important way of approaching the issue raised by the noble Baronesses, Lady Walmsley and Lady Sharp, and the noble Lord, Lord Cope, of teenage pregnancies. The phenomenon of teenage pregnancy is a multi-faceted one. It is for government to work across government departments. It is important, particularly for the Department of Health and the Department for Education and Skills, to be clear about implementing the strategy, but we shall be focusing on this matter in the overarching strategy for children and young people.
The noble Baronesses, Lady Walmsley and Lady Sharp, focused their attention on the issue of smacking. I agree with the noble Lord, Lord Cope, that the distinction is absolutely critical between what goes on in a family home that would be described as reasonable and what is child abuse. We do not accept under any circumstances, nor would we wish to see committed under any circumstances, any form of child

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abuse. We are satisfied that our approach to this issue is in accordance with the convention in terms of the protection of children. We do not wish to divert from the attention that needs to be given to children who suffer from abuse. We must make sure that our focus is on those who are in need of our protection.
Within that, it is important to deal with the issues of parenting—raised graphically by the noble Baroness, Lady Sharp, in terms of what she visually had experience of. We are attempting to promote positive parenting. It is a fundamental part of the mainstream Sure Start programme. We also support organisations such as Parentline and the National Family and Parenting Institute, which do phenomenal work. I say to the noble Baroness, Lady Walmsley and Lady Sharp, that we have 542 Sure Start programmes. These operate much more broadly across the country. Mainstreaming the principles of Sure Start is a fundamental part of this strategy.
A number of speakers focused on the idea of a children's commissioner. We are looking carefully—and I pay tribute to the work that Peter Clarke is doing in Wales—at whether this would be an appropriate role within England. In his initial response on 28th January to the report by the noble Lord, Lord Laming, Alan Milburn remitted consideration of the report's recommendations to the group working on the Green Paper on children at risk. I serve as a Minister on that group and I can tell the House that we are actively considering the matter. We shall publish our conclusions later in the spring.
The noble Lord, Lord Carlile, made a point about bureaucracy which is critical. I am sure that noble Lords will accept that a children's commissioner is not an answer to all the issues that are being raised. The matter is under active consideration and I will come hack to the House on that. I am grateful for the views that have been expressed, which I shall feed back.
The noble Baroness, Lady Walmsley, spoke about the interests of asylum-seeking children. I accept that we are always looking for ways in which we can support them more effectively. But the level of support for children who are part of an asylum-seeking family is identical to the support that is provided for children in families on income support. We are examining carefully the issues of unaccompanied asylum-seeking children. Dispersal is not automatic. We generally try to find ways in which we can support such children and try to make sure that they are dealt with effectively. However, the noble Baroness's points will be passed on to my noble friend in the Home Office.
Noble Lords focused on youth justice. I pay tribute to the work of the noble Lord, Lord Carlile, with NACRO, an organisation I have known and respected for a long time. I agree entirely that we should make sure that our children are dealt with effectively. Although the age of criminal responsibility in this country is one of the lowest in Europe, I recognise that there is more to be done. Again, this is part of the work being done on the Children at Risk Green Paper. As I said to the noble Lord, Lord Cope, education and drug rehabilitation are critical in that respect.
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Noble Lords focused on education. The noble Lord, Lord Chan, talked about children in care, as did others, particularly the noble Baroness, Lady Howarth. A social exclusion unit report is due which looks specifically at greater support for children in care. It is an important issue; I am glad to see the noble Earl, Lord Listowel, in his place. He and I have debated these issues on many occasions, and I hope he recognises our commitment to supporting these children more effectively. I work very closely with my colleague Jacqui Smith in the Department of Health and we are focusing on what more we can do.
The Department of Health recently undertook a comprehensive review of private fostering which will be important to the noble Lord, Lord Chart. However, it is worth pointing out that Victoria Climbié was not privately fostered.
The noble Lord, Lord Chan, also talked about our ethnic minority strategies. It is very important in terms of the strategy just launched in education to support the children from different ethnic minority groups, particularly those from the Afro-Caribbean, Bangladeshi and Pakistan communities, who are not doing as well in the education system as we would like.
Finally, I agree that the level of child poverty in the UK is unacceptable. That is why the Prime Minister has made a commitment to eradicate child poverty within a generation, a government target of which I am very proud. We are making progress, not on every front but in important ways. There are 1.4 million fewer children living in absolute poverty than in 1996–97.
I pay tribute to the noble Baroness, Lady Walmsley, for initiating the debate and to all noble Lords. I am proud to be part of a government who have made a commitment to children and young people. I am pleased that the UN committee has recognised some of the progress that we have made, but we know that more areas need our attention. We work hard to try to make an improvement in every child's life. I believe we have made huge strides, and we will continue to do so to the best of our ability.

Community Care (Delayed Discharges etc.) Bill
8.47 p.m.
Consideration of amendments on Report resumed on Clause 4.
Baroness Noakes Baroness Noakes moved Amendment No. 46:
Page 5, line 28, at end insert—
"( ) This section shall not come into force until 30 days after the Secretary of State has determined that the system of incentives within relevant NHS bodies operates to discourage NI-IS bodies from discharging patients prematurely."
The noble Baroness said: My Lords, we come again to one of the major causes of concern about the Bill. It is a one-sided Bill which punishes local authorities for

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delayed discharges but has no corresponding provisions to incentivise NHS bodies or to punish them if they discharge patients incorrectly.
Amendment No. 46 would add a new subsection to the end of Clause 4, deferring the implementation of the clause—that is, the imposition of fines and not any other part of the Bill—until 30 days after the Secretary of State has determined that the system of incentives within relevant NHS bodies operates to discourage them from discharging patients prematurely.
It is already clear that the incentives created by the Bill are exactly as one would expect. NHS bodies are working out how they can maximise their income from fines. I am sure that several noble Lords will have received the interesting briefing from the Local Government Association which shows how in one local authority area, a trust has virtually absented itself from discussions about how to reduce delayed discharges and has instead started to forecast a revenue stream from the new fines. I do not blame trusts for that because it is a rational response to a financial system. I blame the Government for creating the system.
The logical next step for the trusts is to accelerate the declaration of readiness for discharge so as to get fines running as soon as possible. Local authorities will, logically, try to avoid the fines by making arrangements for the patients' discharge even if those arrangements are sub-optimal.
The real sufferers are the patients. The Government have been congratulating themselves on reductions in delayed discharges, but have kept quiet about the record levels of emergency readmissions. The latest quarterly figures show more than 36,000 emergency readmissions for the over-75s—a rate of 8.2 per cent, which is up nearly one percentage point on a year earlier.
The Minister may like to reflect on the performance of Barnsley, whose low delayed discharge rate he glorified in Committee. Barnsley may get patients out of hospital quickly, but 20 per cent of them—over double the national average—go back within 28 days. That is why the Bill is so dangerous. We are talking not about statistics, but about the human misery of readmission.
The Minister said in a letter to my noble friend Lord Howe last week that there is no connection between readmission rates and speeding up discharges and that the data are suspect. However, the plain fact is that the Bill will encourage early discharge. It is simply not credible to suppose that that will not lead to more readmissions.
When we debated the amendment in Committee, the Minister confirmed that the Government intended that the new system of NHS financial flows would work from 2005–06, so that the cost of patients readmitted within a certain period could not be recovered by the trust. I think that the new system is based on the assumption that early discharges result in emergency readmissions, so I am a bit confused about the Government's real views, given the letter sent to
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my noble friend Lord Howe last week. Do the Government believe that there is a connection between early discharges and readmissions? If there is not, why are they introducing a complicated embellishment to the financial flow system from 2005–06?
I could go into the many question marks that hang over the scheme that will operate from 2005–06, but the purpose of the amendment is not to adjudicate on whether a system of incentives in the NHS will exist. We know that it will not exist in October 2003, when, according to the Chief Executive Bulletin two weeks ago, the Government will be implementing the Bill, notwithstanding the clear view of your Lordships' House that it should be delayed at least until April 2004. Incentives will not exist in 2004–05 and whether they will exist in 2005–06 is a matter of extreme conjecture.
The amendment would simply delay the fining aspect of the Bill until there is such an incentive system in place. That may or may not be in 2005–06, but it is unlikely to be any earlier. There is no incentive system in the Bill to ensure that the NHS does not incorrectly transfer patients out of NHS care, as highlighted in the recent report of the health ombudsman, which we have discussed a couple of times earlier today. When fining is introduced, the NHS trust will have an incentive to discharge the patient as rapidly as possible and the local authority will be seen as a convenient whipping boy. That view will be aided and abetted by the PCT, which will also want the local authority to pick up the bill. Where are the incentives in the Bill for the NHS to discharge patients properly? I beg to move.
Lord Hunt of Kings Heath: My Lords, I disagree with the analysis of the noble Baroness, Lady Noakes. I refute her assertion that the Bill is one-sided. It will not work unless the NHS and local government pull themselves together and start to act together in a way that, unfortunately, is not happening in a considerable number of places in the country at the moment. The effect of the health service and local government failing to get their act together is the problem of delayed discharges. People are suffering. We know that there are examples of good practice where health authorities and local government seem able to ensure an integrated approach, and delayed discharges are kept to a minimum.
I emphasise a point that I made in Committee. Local government is not being treated as a whipping boy, as the noble Baroness suggests. The incentives, controls and monitoring will seek to ensure that the system is as robust on the national health side as it is on the local government side. We must ensure that there are no unintended consequences from the Bill. There is nothing that I would want to see less than the NHS declaring patients ready for discharge too early.
I remind the noble Baroness of Clause 2(1)(b), which refers clearly to a situation in which,
"the responsible NHS body considers that it is unlikely to be safe to discharge the patient".

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In other words, the notification of a patient's likely need for community care services cannot kick in when the body considers that to discharge a patient would be unsafe.
We have the single assessment process, and the incentives in the Bill aim to get that process right. That should lead to a much more integrated approach between the local authority and the NHS trust.
All trusts are subject to rigorous performance management by strategic health authorities. Readmission rates are a specific performance indicator used to determine a trust's star rating. Anyone who has worked in the NHS recently or knows senior people in individual NHS trusts know that performance indicators leading to the star rating of an individual trust bite on the behaviour and actions of the senior management.
The Commission for Health Improvement has a remit to monitor quality and ensure that trusts provide a high standard of care, which they would not be doing if they discharged their patients from hospital too early. The Commission for Health Improvement provides an effective way in which to monitor what is happening.
The impact that high numbers of readmissions will have on a hospital's capacity acts as a disincentive for a hospital to discharge patients too soon. If hospitals need to treat the same patients twice because they have come back to hospital as an emergency readmission, they will have less capacity to treat patients on waiting lists and will not meet access targets, which will damage their star rating. These incentives are powerful enough to ensure that hospitals will not discharge patients from hospital before they are ready to go.
By 2005–6, the financial flow system will enhance the incentives that we already have. I do not see what benefit would be gained from delaying the introduction of the charging element of the Bill when it is the repayment that will provide strong incentives for all local authorities to put in place the services that they need to allow the prompt discharge of older people from hospital. Without the repayment element, the Bill will not be as effective. To delay it would simply mean that in many places it will take longer before older people ready for discharge from hospital can benefit. The noble Baroness omitted to mention the £100 million that is being made available in a full year from the NHS to local government to fund the additional element in relation to the cost of dealing with the current numbers of delayed discharges.
Taken together, I believe that the incentives are right. I believe that the Bill is even-handed. To delay its introduction and the financial penalties would be a disservice to those whom the Bill is intended to help.
9 p.m.
Baroness Barker: My Lords, before the Minister sits down, I should like to deal with two points raised in his reply. I follow what he says about performance management and star ratings. However, what will be the position when a hospital has become a foundation hospital? How will this system respond to that? Some hospitals will soon be foundation hospitals. Will he
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also respond to the point from the noble Baroness, Lady Noakes, about the Chief Executive's' Bulletin which was circulated last week and has been the subject of some comment in professional circles?
Lord Hunt of Kings Heath: My Lords, on the Chief Executive's Bulletin, I think that the point is when the new legislation will kick in. A couple of weeks ago, in Committee, noble Lords took a decision. Although I disagreed with it, I think that I intimated then that the Government had reached the view that they would be prepared to delay the Bill's introduction by six months. The Bill will go back to another place, and another place will have to decide what it seeks to do. It may well be that we will discuss this matter further on yet another Monday. I suspect that the Chief Executive's Bulletin merely reflects the points that I made about our intent with regard to introducing the Bill at the beginning of October. As ever, however, Parliament's will will be paramount and supreme.
I cannot say any more in anticipation of legislation on foundation trusts that might be coming our way. All I can say to the noble Baroness, Lady Barker, is that I very much look forward to debating that issue with her when the time comes.
Baroness Noakes: My Lords, I thank the Minister for his reply—which was perhaps not a great surprise. May I suggest that he read the Chief Executive's Bulletin, which starts off by saying in effect that the House of Lords has decided that there will be a one-year delay, "but we, the NHS, are going to plan for implementation in October"? It sends a clear signal either that the chief executive is acting on his own authority or that Health Ministers are going to ignore your Lordships' House. I also say to the Minister that I had not forgotten the £100 million—I very rarely forget about money—I just do not think that £100 million is at all relevant to the subject that I was discussing: the incentive on the NHS.
We feel that this is a one-sided Bill because it imposes only penalties on local authorities while providing the NHS only with incentives to do the wrong thing—to act simply in a way that maximises its revenue flow. That is why we are concerned that these crude penalty and incentive arrangements will operate harmfully for patients. The Minister has fallen back on an argument to which he has often resorted in discussing many aspects of performance management, but I do not think that we are impressed by the argument that this is another matter that will end up in the star ratings. Waiting lists ended up in the star ratings. Those of us who read the Audit Commission's latest report know what happens to targets that end up in star ratings—they get fiddled. So we cannot see that as a credible solution.
While I have the greatest respect for CHI's ability to monitor what goes on in the NHS, it is not operating in real time; it comes along every so often to examine a whole range of matters. In this amendment we are asking for a very targeted and very specific provision for incentives to counterbalance the impact of the Bill's structure. We have not got that from the Minister

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today. I shall take it away and think about it again. However, I think that the Minister can expect to return to the subject on Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 47 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 48:
After Clause 4, insert the following new clause—
"DELAYED DISCHARGE PAYMENTS:SUPPLEMENTARY
(1) In prescribing an amount under section 4(4) the appropriate Minister must have regard (among other things) to either or both of the following matters—

(a) costs to NHS bodies of providing accommodation and personal care to patients who are ready to be discharged; and

(b) costs to social services authorities of providing community care services to, and services to carers in relation to, persons who have been discharged.

(2) Any payment which the responsible authority is required to make under section 4 in relation to a qualifying hospital patient shall, subject to subsection (2), be made to the responsible NHS body.
(3) In case of any description prescribed in regulations the payment shall be made to the person prescribed in relation to cases of that description."
On Question, amendment agreed to.
Lord Clement-Jones Lord Clement-Jones moved Amendment No. 49:
After Clause 4, insert the following new clause—
"PILOT SCHEMES
The Secretary of State or the Assembly may by order establish pilot schemes for the operation of this Part in selected areas."
The noble Lord said: My Lords, in moving Amendment No. 49, I wish to speak to the amendments with which it is grouped.
We have already had an interesting ministerial apologia with regard to the content of the Chief Executive's Bulletin and the planning of the NHS in relation to the official date of implementation of the Bill in October 2003, despite the amendment passed in this House. We on these Benches—I am sure that I speak for noble Lords on other Benches in this respect—are determined to see the implementation of the Bill delayed until 2004. I have no doubt that we shall spend many happy hours debating that matter in the future if the Bill returns to this House in a different form. The 2004 implementation date would allow local authorities to assess the impact of the changes on the rights and choices of older people and the services they receive. Delaying the implementation of the fines would allow for joint working between health and social care providers to develop further and could prompt the Government to see the introduction of fines as unnecessary. That is an optimistic hope but also, I hope, a realistic one.
The recent health ombudsman's report adds impetus to the call to delay implementation of the fines. It is likely to take some time for the recommendations of the ombudsman to be put into
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place. If there is to be a review of the guidance from the Department of Health, as suggested by the ombudsman, it is only right that it should be fully consulted on following Cabinet Office guidelines that 12 weeks should be given for such consultation. That should be the absolute minimum period. The strategic health authorities would then need to review their criteria to ensure that they were in line with any new guidance produced by the Department of Health. Staff would need to be trained to ensure that they were aware of the guidance and its effect on their decision-making. Until then, there is a danger that flawed criteria could be in use.
In Committee, I went into some detail about the fact that the system introduced by the Government in the Bill for fining for delayed discharge is untested and untried and has been used only in Sweden in very different circumstances. In Committee, the Minister justified resisting the introduction of pilot schemes by saying:
"The first point is that already the NHS and social care services have existing responsibilities to discharge patients in a safe and responsible way. We are not introducing new responsibilities in that sense".—[Official Report, 18/2/03; col. 1065.]
His second reason—also stated at col. 1065 of Hansard—was that,
"the best performing authorities … are already working well together to reduce delayed discharges".
The noble Baroness, Lady Noakes, pricked the bubble of the Barnsley experience. The Minister referred to the experience of both Barnsley and Bristol to justify not introducing pilot schemes. The Minister may regret choosing those examples. Perhaps we should further investigate Bristol's emergency readmission track record.
Is the argument that the best authorities are working so well in partnership that we do not need pilots? Does that mean that the Government can set up—as they seem to be doing under the Bill—a completely unworkable scheme or, indeed, a dangerous scheme without regard to the consequences, and that therefore no pilot scheme is needed? The Minister's logic appears somewhat convoluted; namely, that the implementation of the Bill's provisions is theoretical as they will not bite on the best authorities and that therefore no pilot scheme is needed. Surely one should have a pilot scheme not in the best local authorities but in less-well-performing local authorities, where the provision of a pilot might well bite. One would then see the practicality of the Bill. I suggest that as soon as the Bill's practicality and impact on partnership working are assessed, it will be quickly seen as a wholly unworkable and undesirable piece of legislation. I beg to move.
Baroness Andrews: My Lords, I have just been assured that the best arguments are the old ones. There will be an echo of some such arguments in my response.
We have serious reasons for believing that pilots are not the appropriate step at this stage. Our main objection is that many local authorities have responded to the challenge that has been laid down

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and are already creating and following good practice. A pilot project has traditionally tended to involve the small-scale, radical investigation of new ways of working that have not been put into practice. Health and social care partners already have responsibilities to discharge patients in a safe and responsible manner. The reform is simply about ensuring that they do so more effectively and more rapidly. We want health and social care partners to consider how they can invest in and provide better services and to do so now in preparation. I go so far as to say that we need the opposite of a pilot scheme; we need to universalise best practice. There are many developments in the field.
I shall risk giving another example. The noble Lord would be interested in the example of Kirklees, where a discharge service has been established to support vulnerable adults who have been identified as needing rehabilitation back into their home. That team was established using skilled in-house managers who manage focused-care programmes. The care providers are a combination of in-house staff and carers who are contracted from agencies. It is an interesting and effective example.
The Department of Health is committed to making the arrangement work—there is a practical implementation team that is being led by an ex-director of social services and assisted by practitioners seconded from the field to develop the programme. That practical support is extremely important in terms of getting it right, establishing a way in which reimbursement will work and providing a link between the department and the field. We are making as much good practice available as widely as possible. For example, last week we put model documentation on to the website, which is already active and very popular. We are trying to assist local authorities by providing as much information as possible. We are promoting best practice. People in the field say that they have never seen such an emphasis on getting it right. Attention has been concentrated on this matter. To go back to piloting the proposal would send all the wrong signals. We have been overtaken by events in terms of implementation and good practice. The implementation team is working—
Baroness Barker: My Lords, I hope that the noble Baroness will forgive me at this late stage. I agree with her that the change agent team is a fascinating part of the Department of Health website—I spent much time studying it. I do not believe that any noble Lord on this side of the House is in any way trying to undermine what the department is trying to do about the dissemination of good practice. I go back to an example that the Minister gave when we were in Committee; that is, Kingston. What has been missing from the discussion throughout is an attempt to find out why some things work in some areas and why other things do not work in others.
In Committee the Minister quoted three examples: Barnsley, Bristol and Kingston. I have found out a little about why the situation in Kingston works. First, it is a small authority so its percentage decreases are large. Secondly, like Barnsley and Bristol, it happens
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to be an area in which much of the property is significantly cheaper than in the surrounding areas, so there are many care homes in comparison with other areas. Thirdly, not only have they conducted much joint planning, but they have also invested in hospital discharge schemes, some of them with the voluntary sector and some with organisations with which I work and others.
Missing from the department's analysis as put forward to us is the contextual information about why some things work and others do not. The only argument the department has come up with time and time again is the lack of a power to force recalcitrant social services departments to do what the NHS wants. That is the flaw in the argument. In no way does that underestimate what is being done with the change agent team in relation to good practice.
9.15 p.m.
Baroness Andrews: My Lords, one reason why the Bill is being introduced is to address variable performance across the country. Some authorities are much better than others at reducing their discharge rate and at promoting better learning. I am interested in what the noble Baroness says, but I would expect the implementation team to be able to analyse the information coming from good authorities, and to ensure that that understanding and the variable context are factors by which we can identify the common good principles from which people can learn.
To conclude, the change agents are working together with the Department of Health and we believe that the time for pilots has certainly come and gone. Now we must support best practice in the field and the work of the implementation team. I hope that the noble Lord will feel able to withdraw his amendment.
Baroness Noakes: My Lords, before the Minister sits down perhaps I can clarify what the change agents will do. I understand that they will disseminate best practice, which we all agree is good. The idea of pilot schemes is to learn the behavioural impact of a new scheme; in this case putting money flows in. Can the Minister say what, if anything, the change agents will do to ensure that people learn about the effects of the Bill? That is the essence of pilot-scheme learning.
Baroness Andrews: My Lords, the change agents and others working with them are finding out where the blockage is or where the passage is accelerating and where we need to focus our attention to prevent delays. That is their key contribution.
Lord Clement-Jones: My Lords, with the greatest respect to the Minister, I am afraid that the arguments put forward by her are no more plausible the second time around than they were the first time. I believe that we have managed to tease out more flaws in the argument than were obvious before. It is precisely because the responsibilities are unchanged, that spreading best practice, the change agent team and so on are of enormous value. Of course that is within the existing framework.

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I am in favour of best practice, but the noble Baroness makes the point that the behavioural issues involved, where one has a penalty on local government, make the whole pattern entirely different. The Minister is saying that we need to universalise the penalty which then risks upsetting all the best practice that the change agents are trying to put into effect. That strategy appears to be extraordinarily high risk. I do not know of any organisation that would try to put in a completely unproven set of penalties in the face of some great progress, great best practice and extremely useful partnership working that has been taking place over the years. That seems to be organisational anomie, to use an anthropological term. It is absolutely extraordinary that the department thinks that is the best way to proceed.
The responsibilities in law may not have changed, but, whatever the Minister says, these penalties will alter the way that all the agencies involved will behave. I do not believe that the Minister is able to gainsay that, precisely because there has been no pilot scheme to establish whether or not that is the case. But one would suppose that the behaviour of the agencies involved ipso facto will change.
This is not to decry the skills and so on of the members of the change agent team, nor indeed the quality of the website, but we are working in uncharted waters. Piloting would send the right signals. It would show that the department really is prepared to listen and that it understands that these charges will have a profound effect on behaviour. Indeed, why else would the Government be introducing the Bill if it was not for the fact that they intended the Bill to have an effect on behaviour? Our case is that they are not piloting that change of behaviour to see whether it is beneficial or adverse to the patient.
The hour is getting late. I will not pursue the argument further. But I can guarantee that we will bring back further related issues at a later stage. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Dispute resolution]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 50:
Page 5, line 41, leave out subsections (1) and (2) and insert—
"(1) Regulations may make provision for panels appointed by Strategic Health Authorities in England and by Local Health Boards in Wales to assist in the resolution of disputes between two or more public authorities about matters arising under or in relation to this Part.
(2) The persons forming a panel for the purpose of a particular dispute must be appointed by a Strategic Health Authority or Local Health Board from lists of persons required by the regulations to be kept by the Authority or Board.
(2A) The regulations must contain such provision as the appropriate Minister considers appropriate for ensuring that each social services authority situated (or any part of whose area is situated) in the area of a Strategic Health Authority or a Local Health Board is consulted about the persons whose names appear on any list kept by the Authority or Board for the purposes of subsection (2).
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(2B) The regulations may make provision about the panels, including in particular—

(a) provision for determining who is to appoint a panel in the case of a dispute between public authorities which are not all situated in the area of a single Strategic Health Authority or Local Health Board;

(b) provision specifying the descriptions of disputes which may be referred to a panel;

(c) provision about the recommendations (including recommendations relating to the payment of any amount by one party to another) which may be made by a panel in relation to any dispute referred to it."

The noble Lord said: My Lords, we had a debate about the panels. Some noble Lords said that the provision was perceived perhaps to be unfair, giving the wrong impression to local government because it was a requirement placed upon strategic health authorities to establish those panels. We went down that route because there is no strategic equivalent in local government. If, for instance, one placed the duty on a local authority one would end up with a situation where each strategic health authority would need to set up a panel jointly with five or six local authorities.
We have discussed with local government and others what the local agencies which may bring disputes to this panel want from the system. The feedback is that they want a panel in which they have confidence. They do not want to be involved in further bureaucracy around jointly setting up panels, but they want to know that a panel will be selected from a group of men and women whose judgment they trust and who have no axe to grind in the particular case.
In Committee, I listened very carefully to the comments made. As a result I have tabled Amendment No. 50 and the consequential Amendment No. 55. Essentially, we believe that confidence in the panel will best be achieved by requiring the panel to be set up in consultation with local authorities within the strategic health authority area. We intend to make it clear in guidance that this will include allowing all parties to propose names for the list of members so that they can have confidence in that list.
The draft regulations that we published on 5th February for consultation show that we intend the panel to consist of one NHS representative, one local authority representative and an independent chair, and that for any particular dispute neither of the panel members should be drawn from the body in dispute. That is a very satisfactory outcome. It will, I believe, be perceived to be fair. By requiring consultation to take place with the relevant local authorities it will, I am sure, assure those local authorities that the panels to be established are those in which they can have full confidence. I beg to move.
Earl Howe: My Lords, the Minister's comments in support of the amendment are most welcome. I thank him for taking on board the concerns expressed on the issue in Committee by noble Lords from all sides. We all agree that no dispute panel will work unless each party to a disagreement has confidence in the individuals who constitute the panel.

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Amendment No. 50 provides a means to ensure the sense of ownership that we want to engender among health service bodies and local authorities. However, I wonder whether it is really enough—and here I turn to my Amendments Nos. 51 to 54, which are grouped. The Minister mentioned the forthcoming guidance and said that the Government will make clear that the consultation that a strategic health authority must carry out among the relevant local authorities is designed to ensure that all parties have confidence in the dispute resolution panel. That is an exemplary aim, but I confess that I am somewhat disappointed that the Minister does not envisage building a suitable provision into the regulations to that effect.
To incorporate that into the guidance seems to me second or even third best, because guidance is not binding. As the Minister is aware, I should ideally like to see in the Bill—or, failing that, in regulations—a specific provision to the effect that the setting up of the panels should he the
joint responsibility of the strategic health authority and local authorities. In Committee, the Minister did not advance any real objection to that idea beyond saying that it would be more straightforward if we gave the responsibility to the strategic health authorities. That sounds more like expediency than anything else.
I note that when referring to the make-up of the panels the draft regulations mention one representative of the NHS and one representative of local authorities. If I could be sure what the word "representative" meant, I might feel a little more comfortable. A local authority representative does not carry the connotation of someone who has been nominated by the local authority. The right reverend Prelates in your Lordships' House often represent other faiths; but they have not been nominated by those faiths. The two are different concepts. For local authorities merely to be consulted on who is chosen—welcome though that is—does not guarantee that they will be happy with whomever is chosen.
I do not want to press the Minister unreasonably because he seems to have conceded the principle at issue, which I am sure that we all appreciate. However, it would be excellent if he could undertake to reconsider the draft regulations to see what scope there may be to provide further reassurance to local authorities in the sense that I have just described.
Lord Clement-Jones: My Lords, I add the voice of these Benches both to thank the Minister for the distance that he has travelled in Amendment No. 50 and to support Amendment No. 51 and others tabled and spoken to eloquently by the noble Earl, Lord Howe.
The issue is whether the Minister cannot see his way to move that extra yard. I think that we are close to something that would be acceptable. The current government amendment does not quite fit the bill, but it would not take a great deal of alteration to reach agreement on it.
Lord Hunt of Kings Heath: My Lords, I always endeavour to be helpful and I am certainly prepared to
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reconsider the matter between now and Third Reading, although my amendment goes an awful long way to meet the point of concern.
If we consider the draft regulation, the problem with assigning a joint responsibility is that we run the risk of establishing a bureaucratic approach to determining how a strategic health authority shares responsibility with several local authorities. If they cannot sort that out and reach agreement, that would cause problems. It would be best to place the responsibility on one statutory agency—which, none the less, had to consult with relevant local authorities.
In response to the noble Earl, of course I want local authorities to have confidence in the panels. Indeed, given that they are, in a sense, advisory, it would not make sense to advance a proposal that did not command the local authorities' confidence. I also accept that, where we seek one representative of local authorities, we will want local authorities to propose names for the list of members. I readily accept that local authorities should have confidence in the names on the list. It is the same for NHS authorities. But, having said that, I will look at the matter again to see if I can give local authorities any further comfort, I understand that local authorities recognise that there has been a change in emphasis, and they welcome it.
On Question, amendment agreed to.
[Amendments Nos. 51 to 54 not moved.]
9.30 p.m.
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 55:
Page 6, line 10, leave out "established" and insert "appointed"
On Question, amendment agreed to.
Clause 8 [Regulations]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 56:
Page 6, line 36, at end insert "and different provision for different areas"
The noble Lord said: My Lords, this is a minor amendment intended to tidy up the drafting to pm it beyond doubt that the regulations that set the rates of payment may make different rates of payment for different areas. I referred to the matter earlier. I beg to move.
Baroness Noakes: My Lords, I shall speak to Amendments Nos. 57 and 61. They deal with the regulation-making powers in Clauses 8 and 12 and require the regulations to he drawn up in consultation with local government.
The Minister and I will doubtless disagree on the analysis that the Bill punishes local authorities for delayed discharges. That is certainly how it feels from the local authorities' perspective. They have, therefore, a real interest in the content of the regulations because they could affect profoundly the working practices and finances of local authorities.

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The Government issued draft regulations recently, only a few weeks before they had initially planned to implement them. I shall read what the Local Government Association said about those draft regulations:
"It is already clear that there are significant issues which are still clouded in uncertainty. These include defining the scope of the scheme; the giving, receiving and withdrawing of notices; the circumstances of exemption from financial liability and the process for establishing disputes panels".
In other words, practically everything about the scheme remains unclear.
This amendment only asks that local authorities are consulted. I have no doubt that they are consulted at present—whether or not they are listened to remains to be seen. But the important point is that there is no guarantee that local authorities will be consulted on any future regulations issued under the Bill, but they will have a vital interest in it.
In Committee, the Minister said that his department,
"hardly moves an inch without consulting local authorities on social care issues",
and urged local authorities to have no worries on that score. But, significantly, he did not commit to consulting local authorities on any future regulations under the Bill. Will he reconsider that position?
Lord Hunt of Kings Heath: My Lords, I hope that I can reassure noble Lords that we will continue to consult local government on all those matters. We have good procedures for involving local authorities in the work that we do. The Local Government Association is part of our stakeholder group for the Bill. Regular meetings take place between my department and local government. The two draft regulations that we are discussing have been the subject of public consultation. There are frequent meetings with the Local Government Association.
We have made our intentions in respect of the regulations for both parts of the Bill clear to everyone, including local government. As the Bill is implemented and we gain experience, we may wish to revise the regulations. I have no doubt that, at that time, we will again be happy to consult local government.
On Question, amendment agreed to.
[Amendment No. 57 not moved.]
Clause 9 [Interpretation]:
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 58:
Page 7, line 2, at end insert—
""carer", in relation to a qualifying hospital patient, means a person who—

(a) provides or intends to provide a substantial amount of care on a regular basis for the patient; and

(b) is entitled to ask for an assessment under section 1 of the Carers and Disabled Children Act 2000 (c. 16);"

On Question, amendment agreed to.
[Amendment No. 59 not moved.]
Lord Hunt of Kings Heath Lord Hunt of Kings Heath moved Amendment No. 60:
Page 7, line 10, at end insert—
"'the relevant day" has the meaning given in section (Duties of responsible NHS body following notice under section 2)(6)"
On Question, amendment agreed to.
Clause 12 [Free provision of services in England]:
[Amendment No. 61 not moved.]
Clause 13 [Free provision of services in Wales]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 62:
Leave out Clause 13 and insert the following new Clause—
"FREE PROVISION OF SERVICES IN WALES (NO. 2)
The Assembly may by regulations made by statutory instrument require that any community care services provided by local authorities in Wales, in discharging any statutory function, may be provided free of charge to the person to whom they are provided."
The noble Lord said: My Lords, with the leave of the House, I move the amendment on behalf of my noble friends Lady Barker and Lord Clement-Jones. I apologise for intruding upon your Lordships' deliberations so late in proceedings, but if the Bill seeks to amend the constitutional arrangements in Wales, it would be a matter of considerable concern to us.
Clause 13 would limit the regulations that may be made by statutory instrument by the Assembly to precisely the same provision as may be made by the Secretary of State under Clause 12 with regard to local authorities in England. The amendment tabled by my noble friends has the support of the coalition partnership government in the Welsh Assembly. As I understand it, the amendment has the support of the Minister for Health and Social Services in the Welsh Assembly. I hope that the noble Lord, Lord Hunt of Kings Heath, will assure me that there has been some consultation with the Welsh Assembly on the issue.
The policy pursued by the Liberal Democrats in Wales is to have free care for the elderly across the board, wherever it may seem to be applicable. In the manifesto on which we are to fight the forthcoming Assembly elections, we seek an extension of current financial thresholds to £60,000, and we would like to eliminate thresholds in the case of care for the elderly. We feel that we should have the power to do that. Where the money will come from is the interesting question, and it may not be immediately available. However, the power to make such provision and to advance services for the elderly and others—community services, generally—in Wales should remain with the Welsh Assembly. For example, the Assembly, with Liberal Democrat support, has created a scheme, unique to Wales, of free six-week post-hospitalisation care, and it is important that similar provision should be made in other areas.
There is one further matter. I understand that there is shortly to be a vote in the Welsh Assembly on the provision of free personal care. That policy has executive approval and has been worked out in some

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detail. As I have said on many occasions, the way in which the National Assembly for Wales approaches the making of regulations is far superior to the way in which regulations are promulgated in this Parliament. Considerable consultation and thought has been put into it.
It would appear from Clause 12 as currently drafted, which binds the National Assembly for Wales through the wording of Clause 13, that the Assembly would be unable to do what it wanted and that its powers therefore will be effectively fettered. It is important that when a clause relating to Wales is included in what perhaps I may describe as an "English" Bill the constitutional implications are thought through. This is an issue which Welsh Peers and Members of Parliament frequently discuss among themselves. It forms part of the submissions being made by all parties to the commission that the noble Lord, Lord Richard, is considering. I look forward, with interest, to the views that the Minister will express on this topic. I beg to move.
Lord Hunt of Kings Heath: My Lords, I always welcome the opportunity to debate Welsh constitutional issues with your Lordships. Those of us who have been happily debating the Health (Wales) Bill, which is going through your Lordships' House with as eager support as this Bill, will be aware of debates concerning the relationship between the National Assembly for Wales and the regulations that must be made in this House and another place.
The noble Lord, Lord Thomas, mentioned the commission being led by my noble friend Lord Richard on constitutional issues, which I believe is due to report later this year. I have no doubt that it will prove to be extremely interesting and we shall look forward to it with keen anticipation. I should say to the noble Lord, Lord Thomas, that at present the position is that Wales has no power to provide free personal care. In a sense, rather than taking power away from the Assembly, Clause 12 is giving a new power, but ensuring that it is consistent with the power being given in England.
Limitations have been placed on Clause 12 because it has never been intended to make personal care free. We had what I regard as a Second Reading debate in Committee on this issue. We had the Royal Commission. We considered the recommendations. We considered the recommendations of the minority report. We decided that we did not believe that the additional resource that would be required to finance free personal care would be justified. We considered that it would be much more effective to spend the money on intermediate care.
Therefore, the emphasis is on providing support for people to enable them to go back into their own homes or into community care, rather than effectively providing financial incentives for what, in many cases, would be residential care. I believe that there is a real issue about resources and priorities. It is easy to say that we believe that free personal care is good. But when it comes to the question of how resources should be spent, I believe that it is much more sensible and
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cost-effective to spend that resource—which, as far as England is concerned, is approximately £1 billion a year—on ensuring that as many people as possible are able to live full lives in the community. Hence, the restriction in Clause 12.
Of course, I understand the discussions that have taken place in the National Assembly for Wales on this matter. I read the comments of Members of the Assembly and the comments of Jane Hutt, the Minister responsible. In an earlier debate, she promised to approach the UK Government to fund and implement free personal care. She reported that the UK Government are presently maintaining their position that the priority for spending on long-term care should, as I have said, be on investment in improving the range and quality of services for older people.
If the Welsh Assembly wishes to introduce a policy specific to Wales, then as in other matters where primary legislation is required, the proposals should be discussed with the Wales Office, which in turn could table a Bill so that they could be treated in the same way as any other proposed legislation. That would be a matter for the Welsh Assembly. But I do not see that Clause 12 restricts the powers of the Welsh Assembly, rather that the provisions add to those powers, making them consistent with what is proposed should take place in England.
9.45 p.m.
Lord Thomas of Gresford: My Lords, in response to the noble Lord, when he says that he is making the provisions consistent with those in England, in fact he is putting a fence around the powers of the Welsh Assembly. When he says, "We have decided this or that" and, "Our priorities are this or that", he speaks as the Minister with responsibility for healthcare in England, not the person with responsibility for healthcare in Wales.
It may well be that when the National Assembly for Wales considers its priorities and how to spend across the board the limited cake allowed it by the Barnett formula, it may be that the Assembly will come to the same conclusion as the noble Lord. Members of the Assembly might then say, "We have decided this or that and these are our priorities". But essentially it is for the National Assembly for Wales to decide those priorities in the light of the resources available to it and having regard to the policies which were put forward to the people of Wales when the Assembly was elected.
The Minister has conceded that the Minister for Health in Wales has knocked on the Chancellor's door and asked for specific provision for free personal care and has been turned away. That is typical of the way in which the Chancellor deals with Welsh problems. When a Labour and Liberal Democrat partnership government comes to the door of the Chancellor, he turns them away. That is not satisfactory.
All we seek with the amendment is for Wales to be given its rightful chance to decide how to spend the money made available to it by the Chancellor. At this time of night it may not be appropriate to seek the

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opinion of the House, but I hope that the Minister will go back to the National Assembly for Wales to discuss the matter with his colleagues—colleagues from the same party whom his administration, through its decision making here, is letting down. I hope that when we reach Third Reading, he will be able to put a more positive view of the policy of this Government, as well as a better view of the constitutional position of Wales under devolution. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 14 [Consequential amendments]:
Baroness Barker Baroness Barker moved Amendment No. 63:
Page 9, line 25, at end insert—
"( ) In section 7 of the Health and Social Care Act 2001 (c. 15) (function of overview and scrutiny committees), after subsection (2) there is inserted—
"(2A) The overview and scrutiny committee shall agree and adopt with local NHS bodies in their area, joint local protocols as regards the discharge of hospital patients, to include—

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

(b) administrative and practical arrangements for the implementation of the Community Care (Delayed Discharges etc.) Act 2003, defining the roles and responsibilities of all parties,

(c) local targets for reducing delayed discharges,

(d) joint administrative arrangements for the local implementation of the duties in sections 2 to 5 of the Community Care (Delayed Discharges etc.) Act,

(e) named persons responsible for co-ordinating all stages of the patient journey up to and beyond discharge, and ensuring that all necessary arrangements are put in place at the right time,

(f) joint agreement on how payments made under section 4 of the Community Care (Delayed Discharges etc.) Act are used to encourage an inter-disciplinary approach to services for older people, and to ensure that all stakeholders are involved in deciding how the payments are spent.

(2) An action plan under this section is a document drawn up by the relevant bodies specifying the action intended to reduce delayed discharges, and to change procedures and arrangements which may cause or contribute to the failure to comply with duties under section 3 of the Community Care (Delayed Discharges etc.) Act.""
The noble Baroness said: My Lords, I thank my noble friend for withdrawing the amendment. It would have been wholly wrong to have held a discussion on this matter without the noble Lord, Lord Lipsey, present to make his contribution.
I return here to an issue that we discussed in Committee; that of local protocols. I do not wish to speak at length because many of the issues covered by the amendment are those which we have debated at all stages of the Bill. They are recurring themes covering the need for joint planning on the part of the NHS and local authorities; the need for joint understanding of how the administration of the schemes is going to work; and for there to be joint agreement on the practicalities and the respective roles of the two different organisations.
I take to heart two points made by the Minister during our debates in Committee: first, the absolute aversion to one statutory authority being in a position
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to tell another public authority what to do; secondly, the point made quite forcefully about not having an extra layer of bureaucracy.
The Minister will notice that the amendment is framed in a different way to the one considered in Committee. We have addressed the point by seeking to make this the responsibility of the overview and scrutiny committees of local authorities, which they are required to have under the Local Government Act 2000 and which already have a statutory role in monitoring local health trusts by virtue of the Health and Social Care Act 2001.
If it was evident that the Bill will work in practice in the way described by the Minister and be equally as hard on the NHS as it will be on local authorities, there would be no need for the amendment. But, in practice, it is difficult—sometimes impossible—for people from local authorities to argue their case with the NHS. The amendment seeks to place a positive incentive on both sides to come up with joint agreements about how money generated through the scheme will be used to encourage whole system approaches and how locally devised dispute management processes would work for the benefit of older people.
Finally, it seeks to cement joint working relationships. It does not take a huge hammer to them, as the Bill does through the mechanism of fines. It is not about trying to delay deferral and dodge the provisions of the Bill; it is about trying to make it work in a positive fashion within the existing local framework. It is in that spirit that I commend the amendment. I beg to move.
Lord Hunt of Kings Heath: My Lords, the noble Baroness said that she is trying to meet the point I raised in Committee about the risk of creating bureaucratic layers. However, the impact of the amendment would be to impose another layer of bureaucracy on the NHS and social services. That is the last thing that either the NHS or local government requires.
There seems to be a misunderstanding of the role of an overview and scrutiny committee. Those bodies are there to scrutinise what is happening on health issues. They are not there to be executive bodies—which they would become if the amendment were accepted. The amendment states:
"The overview and scrutiny committee shall agree and adopt with local NHS bodies in their area, joint local protocols as regards the discharge of hospital patients".
It is not the role of overview and scrutiny committees to agree and adopt with local NHS bodies joint protocols. That is the responsibility of the local authority and the NHS bodies. Of course I would encourage as much joint agreement as possible, but it is not the role of the overview and scrutiny committees to enter into such arrangements. Of course overview and scrutiny committees may well wish to inquire from time to time into the arrangements for delayed discharge and the performance of their own local authorities and relevant NHS bodies. I should very much welcome that. I believe that the local authorities' overview and scrutiny committees would have

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valuable insights to offer into how the system was running. But it is one thing to scrutinise; it is quite another to take executive decisions. On that ground, I strongly resist the amendment.
Baroness Barker: My Lords, perhaps I should have anticipated the Minister's reply. He may be correct that the locus for planning should be a partnership board. It does, however, mean that the role of the formal body within a local authority—the overview and scrutiny committee—will necessarily be reactive. I am not sure that that is the foundation on which to build the partnerships which the noble Lord has said throughout our debates on the Bill should be in place in order to make this work.
It is important to bear in mind recent announcements such as that made within the past month that there is no longer a requirement for local authority areas to have a community care plan, although health improvement plans are still required.
I continue to disagree with the Minister that his approach is right. I continue to think that his is a negative and destructive approach. I am searching, as he can see, for ways in which to build a positive approach to planning these matters at local level. This may not be the precise amendment to achieve that. I shall take it away and consider it. However, I shall continue to try to find a positive way to build those local arrangements which we agree are necessary, but we wholly disagree on the way to find them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Short title, commencement and extent]:
[Amendments Nos. 64 to 66 not moved.]
Earl Howe Earl Howe moved Amendment No. 67:
After Clause I7, insert the following new clause—
"DURATION
(1) Subject to subsection (2), Part 1 of this Act shall cease to have effect at the end of five years beginning with the date on which it comes into force.
(2) If the Secretary of State is satisfied that it is necessary for social services authorities to continue making payments in cases where the discharge of patients is delayed for reasons relating to the provision of community care services or services for carers, he may make an order providing that Part I of this Act shall continue in force for a further five years.
(3) An order may not be made under subsection (2) unless a draft of that order has been laid before, and approved by resolution of, both Houses of Parliament."
The noble Earl said: My Lords, after all our debates today, I am sure that it will not surprise the Minister that I move this amendment with a considerable measure of enthusiasm.
As the noble Lord, Lord Clement-Jones, said a few minutes ago, this is a Bill which brings us into experimental territory. I and other noble Lords have flagged up our concerns on it throughout these debates. We believe that the Bill will not work: it will militate against patient choice; it will distort priorities, to the detriment of elderly patients in the community; it will create all kinds of perverse incentives, some of which may make the problem of discharges worse, not
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better; and we believe that it will establish a confrontational culture between trusts and social services instead of a creative and collaborative one.
The idea of fining social services for failing to free up blocked beds originated in Sweden. But if we look at what happened there, we see that Sweden, even after operating the scheme for a number of years, still has a higher incidence of delayed discharges in both relative and absolute terms than we do in the UK.
The Government should acknowledge that there is a risk of this measure not working as they predict. As we have said on several occasions, it is the unintended consequences that are often not foreseen. If the Bill were to succeed in freeing up substantial numbers of acute beds without causing unmanageable problems in the community; if it succeeds in encouraging investment into new care homes and in preventive and community care facilities; if patients by and large receive the care that they want and need when they want and need it, then no one will be happier to eat his words than I. But I think that any experiment should have a finite life. After that, it should be subject to a thorough appraisal to see how well or how badly it has worked. That should be a fundamental principle of just about all legislation but never more so, I suggest, than in this case.
If we believe, as I think the Government do, that we should not regulate unnecessarily, that should certainly apply to a Bill which creates burdens for the public sector and incurs unproductive costs. That is why Amendment No. 67 has been tabled. If the Bill has to be passed into law, we should, at the outset, grant it a life of five years in order to prove its worth. If, at the end of that time, Ministers are satisfied that it is necessary, all things considered, to maintain the system of financial incentives in place, well and good. Let them come to Parliament with an affirmative resolution and we will debate it in the normal way.
That is all I ask—it is not so very much. The new clause ought, by rights, to commend itself to Ministers. I beg to move.
10 p.m.
Lord Clement-Jones: My Lords, I support the amendment of the noble Earl, Lord Howe. If the Government will not accept pilot schemes to see whether the mechanisms in the Bill will work and will be productive rather than counter-productive, the logic of the noble Earl's comments is irrefutable. Since the Government do not have a clue whether the Bill will work, it seems that a review after five years is the right way to go.
If the Government accept a five-year span for the Bill, they do not have to put it to the test now. As it happens, almost every Member on every Bench in this House believes that if the Bill were a plane it would crash, and in fairly short order. However, by accepting the noble Earl's very sensible amendment, the Government could sidestep that matter altogether, with very attractive consequences.
Lord Hunt of Kings Heath: My Lords, the noble Lord, Lord Clement-Jones, says that the Government

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do not have a clue whether the Bill will work. I really must say that that is quite unwarranted. We would hardly bring a Bill of such seriousness before your Lordships' House if we were not confident that it put in place the right incentives to enable delayed discharges to become a problem of the past.
We must think about those thousands of people every day who are stuck, unnecessarily, in hospital wards, risking the dangers of institutionalisation, infection and of losing their independence. That is very often down to poor practice between statutory agencies. We hear a lot from the opposite Benches about the problems of these poor statutory agencies who are unable to get their act together. However, I say to the noble Lord, Lord Clement-Jones, and to the noble Earl, Lord Howe, that unless we get to grips with the situation, many thousands of people over the years ahead will still be suffering from the seeming inability of statutory agencies to perform effectively and in the public interest. That is why we are bringing the Bill before your Lordships' House.
I believe that the Bill is even-handed and has the right incentives to make the system work effectively. I have no doubt that once it is introduced, we will see dramatic improvements in the way in which individuals are assessed and community services are provided, and a reduction in the number of delayed discharges.
I know that noble Lords opposite do not welcome the Bill, but that does not justify adding what is generally known as a sunset clause to it. Such clauses are generally used only in Acts passed because of national emergencies, such as the Import, Export and Custom Powers ( Defence) Act 1939—I have a list—or in Acts that impinge on individual civil liberties, such as the Terrorism Act 2000. As a resident of Birmingham, I am glad to see the Football (Disorder) Act 2000 on the list. Sunset clauses are not generally used in other legislation and it is not justified in this case.
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I am confident that this is a good Bill. I am convinced that it will lead to better performance in the health service and local government. It deserves to be passed unfettered by a condition such as a sunset clause.
Earl Howe: My Lords, I have no difficulty with the Government's aim. We all acknowledge that there is a problem of delayed discharges and agree that we need to get a grip on the situation.
However, the direction of travel since the Government came to office in 1997 has been towards partnership working. I applaud that. They have introduced some innovative and imaginative measures, such as the duty of partnership between the NHS and local government and the ability to pool budgets. Perhaps above all they have encouraged a culture of partnership that is genuinely bearing fruit in a number of ways. None of us could fail to welcome that. We have only to look at the delayed discharge figures for the third quarter of 2002, which were published last week, to see that the trend is downward.
I therefore find it all the more surprising that the Bill moves in the diametrically opposite direction to the measures that I have just cited. The Government have nothing to be afraid of in our sunset clause. If the Bill works as they believe it will, it will be easy to demonstrate that fact to Parliament. I do not suppose that they would receive much opposition in doing so. If the Bill fails to work, there is no case for keeping it on the statute book. I fear that the damage it will do will be self-evident and there will be a general call to scrap it.
I am not sure why the Government are so reluctant to accept a sunset clause. Nevertheless, it being past sunset today, I do not propose to press the amendment. I have listened with care and appreciation to everything that the Minister has said today. I shall read what he has said between now and next week. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 68 not moved.]
House adjourned at nine minutes past ten o'clock.