Normally any late change to the order of business in the House of Lords is agreed through the “usual channels“. This is to make sure that the relevant spokespeople are available.
I understand that the Government are trying to schedule a vote on the Welfare Reform Bill for late on the evening of Wednesday 29th February. This is part of the “ping pong” procedure and will be when the House of Lords considers the reversal by the House of Commons of the Lords’ amendment on the so-called “bedroom tax“.
Normally Consideration of Commons Amendments is given priority in the order of business and is usually taken immediately after Question Time, when the House is at its fullest. This, of course, is the second time that the Bill has been returned to the Lords by the Commons, which means that, if the Lords rejects the latest Commons amendment, the two Houses are moving firmly into constitutional crisis territory. All the more surprising therefore that the Government are trying to take this vote late on Wednesday.
However, is it surprising?
Or is it yet another cynical manoeuvre by the Conservatives and LibDems to make major changes in the benefits system without proper debate and adequate scrutiny?
There is an excellent article in the New York Times that explains the behavioural psychology that is now linked to supermarket loyalty cards and on-line shopping patterns to target and personalise adverts and offers.
It describes an incident in a Target store (a major US chain) as follows:
“a man walked into a Target outside Minneapolis and demanded to see the manager. He was clutching coupons that had been sent to his daughter, and he was angry, according to an employee who participated in the conversation.
“My daughter got this in the mail!” he said. “She’s still in high school, and you’re sending her coupons for baby clothes and cribs? Are you trying to encourage her to get pregnant?”
The manager didn’t have any idea what the man was talking about. He looked at the mailer. Sure enough, it was addressed to the man’s daughter and contained advertisements for maternity clothing, nursery furniture and pictures of smiling infants. The manager apologized and then called a few days later to apologize again.
On the phone, though, the father was somewhat abashed. “I had a talk with my daughter,” he said. “It turns out there’s been some activities in my house I haven’t been completely aware of. She’s due in August. I owe you an apology.”
One of the difficulties in combatting terrorism is maintaining public support and vigilance over time as the memories of atrocities on mainland Britain fade. The recent conviction of nine men who plotted to bomb the London Stock Exchange and build a terrorist training camp is a reminder that the threat has not gone away. However, the Metropolitan Police campaign, “It’s probably nothing, but…“, will help reinforce the message that public vigilance is going to be essential – particularly in the run-up to the Olympics.
As the Met says:
“Everyone who works, lives and visits London has a role to play in helping to counter the terrorist threat which remains real and serious.”
The four week campaign consists of a 40 second radio advert to be aired on Kiss FM, Capital, LBC and GOLD, and press advertisements in local publications and minority media titles. The activity will also be supported by a digital presence on Spotify, and in excess of 1.4 million leaflets being delivered to households across London.
The radio advert recognises that some people may be reluctant to report suspicious activity or behaviour, such as someone paying for a car in cash but not taking it for a test drive, because ‘Chances are, it’s probably nothing’.
But it goes on to encourage people to think ‘But what if it isn’t’?
Just one piece of information could be vital in helping disrupt terrorist planning and, in turn, save lives.
The press advert seeks to reassure Londoners that if they see or hear something that could be terrorist related, they should trust their instincts and call the confidential Anti-Terrorist Hotline.
I was rather disconcerted to come across a site on-line which makes the following promises:
“We offer only original high-quality fake passports, driver’s licenses, ID cards, stamps and other products for following countries: Australia, Belgium, Brazil, Canada, Finland, France, Germany, Italy, Netherlands, UK, USA and some others.”
It goes on to say:
“Our passports produced with high quality and have no difference from the original documents. We accept all security features like special paper, watermarks, security threads, intaglio printing, microprinting, fluorescent dyes, color-changing ink, document number laser perforation, latent image, laser image perforation while producing passports.
There is also a possibility to affix almost all kind of stamps into the passports. The price for this service should be discussed with our operator and may be variable.
Attention! There is a new option of document duplicates producing, i.e. cloning of the real existing document but with your photo. We select suitable document from our database considering on your age, sex, nationality, ect. This service is available for not all countries, pricing is not fixed too.”
Driving licenses are also available:
“All our driving licences are produced on high definition printers. They offer durability, exceptional print quality and an overall impression of quality and authenticity in our fake DL cards. We offer a range of features such as barcodes, magnetic stripes, smart chips and holographic overlays. We also offer holographic overlaminates, which lend added authenicity to the cards.”
The Frequently Asked Questions section is instructive:
“Can I use your document instead of real one?
Answer : Yes, you can do it. To reduce risks we recommend you to use document duplicates service, i.e. cloning of the real existing document but with your photo.
Are my order details kept private?
Answer : Of course, customer details are kept confidential and never shared. All our documents come in plain white envelopes with no mark saying what’s inside.
How long will shipping take?
Answer : Shipping takes from 2 to 5 days depending on country of destination. Some orders take up to a week.
Can you provide a tracking number for the package?
Answer : The orders that shipped by means of DHL (Worldwide Express), UPS Express and FedEX are provided with tracking number for the package.
Do any of our company details appear on the document or envelopes they are sent in?
Answer : All our document are sent in discrete packaging with no reference to our company on the packages contents or on the cards themselves.
Does the delivery name and address have to be the same as the name and address I want printed on my fake documents?
Answer : No. If you want your document to go to another address then just fill in the order form accordingly.
How much time will you need to send my document after the moment I paid?
Answer : It depends on the payment method you used . Wire transfer usually takes several days to arrive to our account. Webmoney, Western Union and MoneyGram methods are fast and we can check them at the same day.
Can I pay for my fake document using a credit card or Paypal?
Answer : Unfortunately due to the nature of our business it has been difficult obtaining these facilities. We expect to take credit cards sometime in future time. As a result we can not at this time accept cards and Paypal as a method of payment.
I want to order lots of fake documents, can I get a discount?
Answer : If you send us an email detailing how many documents you intend to order then we will contact you and arrange a discount on an individual basis.”
I trust by now the site has been closed down by the relevant authorities, but, if not, I will provide the link to suitably authenticated representatives of the Metropolitan Police or the Serious Organised Crime Agency ….
Here is my speech from tonight’s debate on NHS bureaucracy:
“My Lords, it is an enormous pleasure to follow the noble Lord, Lord Fowler. I was particularly taken with his support for the principle of ring-fenced funding, which I trust the Minister will take into account when, a little later, we come to consider local healthwatch organisations.
Earlier today, we had a Question on the initiatives that had been taken in London on stroke care. I did not get an opportunity to pose this question but I was interested in who, in the absence of NHS London driving the process, would have taken the quite difficult decision to reorganise stroke care in London, given that it was opposed by a lot of the local providers and local organisations. This question also came up during the first day on Report when we looked at who would make decisions on reconfiguring services and who would make decisions when services were not adequate or when there were issues of equality of healthcare to be addressed. At one point, the Minister said,
“The CCGs will be supported in their efforts to improve quality by the NHS Commissioning Board”.—[Official Report, 8/2/12; col. 314.]
Later on, when I probed him on this, he said that “the board”—that is, the NHS Commissioning Board—“will be represented sectorally”. I was not quite sure what he meant, but it being Report stage I could not challenge him. He said:
“There will be field forces in all parts of the country … The majority of its staff will be a field force”.—[Official Report, 8/2/12; col. 316.]
I do not know how a majority can be a field force, but there we are. Later on, he said:
“However, of course, the board will be represented at a local level rather than only centrally, and we expect that the board will be represented in health and well-being boards and in the discussions that take place there”.
When I questioned whether that meant that they would be members, he said:
“It is entirely open to a health and well-being board to invite a member of the Commissioning Board to be a permanent member, but I am not saying that we are prescribing that”.—[Official Report, 8/2/12; col. 340.]
I took that to mean that the NHS Commissioning Board will be sitting at the centre of the National Health Service with its tentacles going out to all parts of the health service. The Minister did not really like that. He said:
“The role of the board is to support local commissioners; it is to be there as a resource to promote guidance, supported by the quality standards that we were debating earlier”.—[Official Report, 8/2/12; col. 352.]
If the noble Earl does not like the metaphor of tentacles reaching out across the health service, perhaps a better metaphor would be to see the NHS Commissioning Board as some sort of Spanish Inquisition, reaching out to the local clinical commissioning groups and to the health and well-being boards, saying, “We are here to help”, which is no doubt what the Spanish Inquisition said in its heyday, and, “We are a resource to promote guidance”, which is also what I suspect that the Spanish Inquisition might have said in its heyday. I have to ask whether what we have before us is really a less bureaucratic structure when it has this enormous inquisition-like structure sitting in the middle of it, promoting things at a local level.
We are replacing a fairly simple, basic idea: the Department of Health in the middle with a series of strategic health authorities and below those the PCTs. I believe that the previous Government should have done more to reduce the number of PCTs and I know that my noble friend Lord Warner worked very hard, in his various incarnations, to try to achieve just that. There are too many PCTs, but we did not need this Bill to reduce the number of PCTs. Nor did we need this Bill to give those PCTs clinical leadership. All that was required was to appoint local doctors, local clinicians, to lead those PCTs, and that could have been done from the Department of Health. You did not need this Bill to reduce bureaucracy and to simplify that fairly straightforward structure; you did not need this Bill to give clinical leadership; and you certainly did not need the top-down reorganisation, which I think we were promised we would not have.
Instead we shall have the Department of Health at the centre and the Secretary of State, who will not micromanage but who will have instead the NHS Commissioning Board. No doubt the Secretary of State, like some latter day Henry II will say, “Who will rid me of this rebellious CCG?”, or, “Who will require something to happen in a local provider?” and popping up like some—I am mixing my metaphors—Torquemada will be the chief executive of the NHS Commissioning Board, Sir David Nicholson, who will say, “Ah, right, this is something that we will take on; it is not something that you, Secretary of State, should be micromanaging yourself; we, the NHS Commissioning Board will micromanage it through our network of clustered strategic health authorities, through our commissioning support groups and through the 300 CCGs, not forgetting these wonderful bodies, the clinical senates”. No doubt this is my failure rather than anyone else’s, but I have yet to understand exactly how the clinical senates will operate. I rather suspect that they will be like the Deputy Prime Minister’s proposals for a replacement for your Lordships’ House: they will be costly, rather powerless and part of this panoply of structures.
Throughout all this, there will be the field forces of the NHS Commissioning Board, not reaching out like tentacles, but being there as a resource to promote guidance and to make things happen. Apparently from this Bill, which allegedly will reduce bureaucracy—this morning I heard a government apologist on the radio saying that the Bill is all about reducing bureaucracy—we will have this network of individuals who will work with, or even sit on, local health and well-being boards, working to encourage and promote guidance and advice and working with clinical commissioning groups. They will be individuals who will, largely, be anonymous, invisible and unaccountable, except upwards to the NHS Commissioning Board. I am not sure that I accept that this will be a less bureaucratic structure but I am quite sure that it will be a much less clear and accountable structure than anything we have had before.
Recently, I was in a meeting with a number of London MPs who were talking about how these new arrangements will work. The question they wanted answered—this is the Henry Kissinger question—was who do we phone to talk to when some issues takes place which is not soluble by an individual clinical commissioning group or is not simply an issue that relates to one provider? Where do we go? Presumably, we ought to go to this anonymous individual, anonymous representative of the NHS Commissioning Board. No one will know who that person is. That person will not be accountable and presumably will not be supposed to talk to Members of Parliament.
The question that I hope the noble Earl will answer about where the Bill is going—I accept the comments of the noble Lord, Lord Fowler, that it may not be perfectly drafted—is: how baroque will the structure be underneath the NHS Commissioning Board? How will that structure of individuals and field forces, which will manipulate what happens in local CCGs and in local health and well-being boards, work? How will a field force be held accountable, visibly and locally to the population who will be affected by the decisions of those influenced by that local field force?”
The amendment I signed to place a statutory duty of candour when something goes wrong on those providing health services was defeated in the House of Lords this afternoon by 36 votes with 198 in favour and 234 against.
164 Labour Peers voted in favour along with 1 LibDem and 33 cross-benchers and others. 137 Tory Peers voted against the amendment, along with 61 LibDems and 36 cross-benchers and others. LibDem Baroness Tyler of Enfield who also signed the amendment nonetheless voted against it
My speech (with interruptions) was as follows:
“Lord Harris of Haringey: My Lords, my name is down in support of the amendment. I want to make it clear at the outset that it is substantially different from the amendment put forward in Committee and has taken on board a lot of comments and points made during the helpful debate at that time.
As far as I am concerned, the origins of this go back to my meeting 18 years ago with William Powell about the death of his son, Robbie, when I was director of the Association of Community Health Councils. Mr Powell was concerned about the failure of the system to give him and his family answers as to why his son had died. Mr Powell is still campaigning for a change in law to place a requirement for some sort of duty of candour. Interestingly, that case eventually reached the European Court of Human Rights in May 2002. In its judgment, the court made it clear that at present there is,
“no duty to give the parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records”.
Most of your Lordships would find that a pretty shocking and appalling statement in this day and age, but that is where we are as far as the law is concerned and it remains a continuing consideration.
In September, as chair of the Independent Advisory Panel on Deaths in Custody, I had a listening day with a group of families whose relatives had died while detained under the Mental Health Act. Those families reported a lack of information from NHS trusts. One family reported that they,
“were unaware of any investigation, everything was released in drips”.
Another family claimed:
“They didn’t disclose anything, it was a battle to the end”.
Another said that
“the shutters came down as soon as I started asking questions”.
One parent explained that it was like being,
“in a void whilst waiting”.
These are parents or families of people who have died while in mental health care.
Even more alarming for families was the misinformation frequently provided to them. They thought that there had been a whole series of flaws in the way that the cases of the deaths of their loved ones were investigated. One said:
“The first time I had opportunity to speak to anybody was the consultant. Nobody told me about the investigation. I told the consultant that I wanted a meeting with nurses and see what happened … Consultant and matron came for the meeting with no pen and paper. I was the only one taking notes. After that the matron told me that she would try to get answers for me. I asked how she would remember 20 questions which I asked as she was not taking notes. It took three years for them to give this evidence”.
The problem is that most families feel that the investigations are not independent, and many of them feel that they are presented with lies. The problem is that the existing system does not work. It is not adequate as it presently stands.
The amendment has been significantly changed. It now relates explicitly to organisations rather than individual practitioners. The background is that there is currently no statutory requirement for organisations that provide NHS services to tell a patient, carer, or representative when something has gone wrong during their care and treatment that causes harm. The issue is left to guidance and a non-binding requirement in the NHS Constitution to have regard to the principle of openness. This has allowed cases to occur where NHS organisations have withheld such information from patients, delayed its release or, worse still, actively covered it up.
I understand that the Government have agreed that a duty of candour is required, but their preferred route is a contractual duty built into the standard contracts between commissioners and some providers of NHS services. Patient organisations and others do not believe that that is sufficient. It would not include all NHS providers—for example, GPs, dentists, pharmacists, and so on do not have such contracts—and it would not create access to the sanctions which the Care Quality Commission has at its disposal. Under the Government’s proposal, as the noble Baroness, Lady Masham, said, the duty would apply only to incidents which are already being reported through official systems, so it would be useless in preventing cover-ups.
The amendment would require the Secretary of State to create a statutory, enforceable duty of candour by amending the registration regulations of the CQC. All healthcare providers would then have to comply with them to be registered. Of the issues raised in Committee, the most important, raised by several noble Lords, including the noble Lord, Lord Winston, who I do not think is in his place at the moment, and the noble Lord, Lord Walton, was that that might overlap or conflict with the clinicians’ professional duties and the existing arrangements under the General Medical Council and other codes of conduct organised by regulatory bodies. The proposal in the amendment is for a statutory duty of candour placed on organisations, not on individual health professionals. It therefore complements, rather than duplicates or confuses, the duties in health professionals’ codes of conduct.
Indeed, Harry Cayton, the chief executive of the Council for Health Regulatory Excellence, has said:
“We support the introduction of a duty of candour in the CQC’s registration requirements, which would mean that the ethical responsibility of health professionals would be shared by organisations delivering healthcare services”.
Frankly, at the moment, doctors and nurses can be put in an impossible position where they would want to honour their ethical and professional obligations but are told by managers and lawyers within the organisation for which they work not to be fully open with patients. That would put them in the position of a whistleblower. This duty would remove that conflict for those individual professionals.
Of course, the amendment is not designed to get in the way of culture change. Several noble Lords said that we want culture change. No one disagrees. The point is that this will support the process of culture change. There is no argument for not setting out in regulations what is by any reasonable assessment as important and essential a standard of quality and safety as the others already set out in CQC regulations.
Lord Walton of Detchant: In relation to candour, the noble Lord may know that the General Medical Council published guidance just two weeks ago making it incumbent on doctors not to sign a contract or agreement that prevents them giving information which might be detrimental to the organisation that employs them. In other words, gagging orders are no longer accepted by the GMC as being part of a contract into which doctors can enter.
Lord Harris of Haringey: I am grateful to the noble Lord, Lord Walton, for that. It is an extremely important step forward and it recognises that there is an existing problem that requires the GMC to take that stance. I think that there is a distinction between gagging clauses and the sort of persuasion and pressure that may be applied to clinicians behind the scenes under such circumstances. This amendment focuses on the organisation’s responsibility and on how the managers and lawyers within an organisation should meet those obligations of candour.
I know that there has been some concern—I think that the Minister has expressed it at various points—about whether the CQC would be able to cope with regulating this duty of candour. It is worth making it clear that there is no question of asking the CQC routinely to monitor every incident with patients; it is simply about the expectation that it will be there as the backstop.
There is already a duty in the CQC’s statutory registration regulations to report to the CQC incidents that cause harm, but it is a duty which requires the organisation to report the incident to the CQC and not to the patient. It is rather anomalous that there is an obligation requiring an organisation to report something to the CQC but not to the patient at the same time. Quite clearly the CQC should have this information and be able to respond to and deal with it.
The point is that the CQC has always said that it could regulate this requirement if the Department of Health so wished. I think that there has been some recent correspondence with the Department of Health which has recognised that the CQC is currently under considerable resource constraints. However, I have seen copies of e-mails released under the Freedom of Information Act—
Baroness Wall of New Barnet: I thank the noble Lord for giving way for the second time. I certainly support the amendment but I worry about the examples that he has used. The cases that he has put forward and the experience of the patients and families concerned are horrendous and outrageous, but what I found troubling and certainly did not recognise at all was when he went on to say that the coercion, rather than gagging, that might take place inside, for instance, a provider trust such as my own—Barnet and Chase Farm—would discourage people from being anything but frank. I have now been the chair of Barnet and Chase Farm for five years. The chair is at the end of the process and during the process has the opportunity to talk to people. I hope that my trust is not unique but in five years I have never known that kind of culture at Barnet and Chase Farm. The noble Lord is looking askance but I ask him to trust me. From my experience—and I hope that it is not a lone experience—I can assure him that that culture does not exist inside my trust; nor, I am sure, does it exist in others. In fact, the opportunity to come clean is used by my trust in the whole way in which patients are dealt with and, indeed, when patients tragically die. If what the noble Lord is saying does happen, then the amendment is absolutely crucial. However, I do not recognise it.
Lord Harris of Haringey: I am grateful to my noble friend for that intervention. She has highlighted the fact that there are different practices around the NHS. Quite a number of trusts take a very positive approach, as she has described, whereby the natural assumption is that you are open because that is what the Department of Health would expect. However, the number of instances where that is not always the case and not always the culture that is adopted, is striking. That was, for example, reflected in the group of families that I met whose family member had died while being detained under the Mental Health Act; it was reflected in the case of Robbie Powell; and it was reflected in a large number of the other cases that the patient organisations which the noble Baroness, Lady Masham, listed, have come across.
So there are two cultures within the NHS and we need to ensure that the culture within the NHS is the best. That is why a statutory duty of candour would support the process, rather than hinder it. It would not cut across the position of the individual professions—indeed it would support it—and, as the noble Lord, Lord Walton, has highlighted, there has been much recognition by the General Medical Council that this is an issue—
Baroness Whitaker: I apologise for interrupting my noble friend. Perhaps I might add something to the other side of the balance. I am aware of two very recent cases—one of a death and one of a hospital-acquired infection—where information was covered up. It is not simply the case that there is a uniform culture of candour.
Lord Harris of Haringey: I am grateful to my noble friend for that reinforcement. I regret that, within some NHS trusts and some provider organisations, there is not the same approach. There is a concern that it is better to keep a patient, or the family of a patient, in ignorance and hope that the whole matter goes away. The purpose of the amendment is not to penalise the individual clinician—we all recognise that accidents happen—but to foster the culture of openness that the department wants to see; it wants to ensure that that duty is reflected, not only as far as the individual professionals are concerned, but also as far as the organisations are concerned. Otherwise, too often the lawyers and managers will say, “In the interests of the trust, let us try to keep this quiet”. I am glad to hear that it does not happen in every instance, as I am sure it does not, but the purpose of the amendment is to provide a statutory framework that will make it quite clear to all those who might otherwise be tempted to cover up these incidents that they must say, “This is important and we have to be open”.”
A Police Service with a sense of humour?
How would the Met shape up if their website was hacked?
After the excitement of the Government’s defeat in the House of Lords yesterday afternoon by a margin of four votes (with the Convenor of the Liberal Democrat Peers, Lord Alderdice,voting against an amendment he had both signed and spoken in favour of) on the principle of mental health issues being given greater priority within the NHS, the rest of the days proceedings might have been a bit of a damp squib.
However,the later debates illuminated what a dog’s breakfast the whole Health and Social Care Bill has now become.
For example, at one point I tried to elucidate what would be the mechanisms to drive up quality in local healthcare provision and how would health inequalities between commissioning group areas be addressed, saying:
“My Lords, I support the amendments in this group because I believe that it is important that we look at the mechanisms that will be embedded in the Bill, assuming that it eventually receives Royal Assent in some form, and that will in practice drive change in the direction that we all want. That includes improving the quality of the care offered, and it means addressing the issues of health inequality to which the noble Baroness, Lady Tyler, referred.
One of the omissions from the Bill is that, apart from placing some general duties on the various bits of the NHS, there is very little about demonstrating how those duties will then be exercised or creating a mechanism for assessing that. The amendment, which talks about reporting annually to Parliament on the progress made, seems an essential first step in making sure that that happens.
The reports on inequalities will be increasingly important in this area. However, Amendment 112, dealing with CCGs’ annual reports on how they have discharged their duty to reduce inequalities, raises another question, and this comes back to the issue of what will be the catchment areas of individual CCGs. Unless there is far more central direction than I have understood—and perhaps the Minister can reassure us on that—it seems likely that there will be, to use an unpleasant term, ghettoisation in some CCGs.
In some local authority areas, the easier bits of the patch will have one CCG and another will cover the others. That is likely to mean that the areas covered by those two different CCGs are rather more homogeneous than might otherwise be the case. If one CCG covered that area, the duty to make progress on health inequality would be clearer. If we are talking about smaller populations served, it is more likely that they will be homogeneous and that there will therefore be less inequality to address. The question will be whether there will be enough pressure within the system to ensure that the inequalities in health outcome between different CCG areas will be addressed. It is all very well to place a duty on a CCG which covers, say, the people of Tottenham in north London, where there are tremendous problems of health status, life expectancy and so on, to report on what it is doing to eliminate health inequality in its patch, but if the nature of that patch is such that it is already deprived in terms of both economic indicators and health outcomes, what will be the driver to ensure that the inequality of that area compared with others is addressed?
Who will own the strategy within regions and parts of the country to address issues such as health inequality and clinical standards? If the answer is that that this will all be done by the NHS Commissioning Board, that is a wonderful answer and tells us what an important body the NHS Commissioning Board will be. How will that be operationalised? What mechanism will drive that? Before you know it, you are talking about a regional and area infrastructure no less baroque than anything we have seen in the past. Otherwise, it cannot happen. What will be done to operationalise the drivers to make the improvements happen? It will not be sufficient to place a duty on everyone to report on what they have done, although that is valuable and worth while in itself. What will be the duty to address issues between localities? You can address all the inequality you want within those areas, but if the outcomes are already much lower in those areas, will there be enough infrastructure around the NHS Commissioning Board to address the problem of the inequalities between the different areas?”
In reply, the Minister, Earl Howe said:
“The noble Lord, Lord Harris, asked me about clinical commissioning groups and referred to their geographic coverage. He will know that each CCG will be accountable for the outcomes that it achieves against the commissioning outcomes framework, which is under development. The CCGs will be supported in their efforts to improve quality by the NHS Commissioning Board, whose job it will be to issue commissioning guidance, informed, among other things, by NICE quality standards.
I do not agree with the noble Lord that CCGs are likely to be ghettoes. Across many clinical areas, they will collaborate to serve the needs of patients over an area wider than that of just a single CCG. What is not stated in the Bill but I hope is implicit in all that the Government have said is that there will be transparency in all this. Once you measure results, there is, ipso facto, an incentive to improve those results.
The noble Lord, Lord Hunt of Kings Heath, asked me how a CCG can influence improvement in primary care when it is the board that is commissioning the primary care. I simply remind him that CCGs have a duty under the Bill to support the NHS Commissioning Board in its quality improvement functions with respect to primary care. Indeed, one of the key benefits of CCGs as we see it—and we know this from a practice-based commissioning which has been in place for a number of years—is the ability for peer review and peer pressure to drive up quality.
The noble Lords, Lord Harris and Lord Hunt, asked me who will lead the local strategies. Health and well-being boards will be the bodies that will produce a joint health and well-being strategy, and that will be designed precisely to address issues such as health inequalities, which involve different services working together. CCGs must have regard to these strategies in addition to reporting annually on health inequalities, as through the amendments in this group.”
“Lord Harris of Haringey: I just want to make sure that I understand the point that the Minister is making. Let us compare two localities in London. I mentioned Tottenham, so compare that with, say, the residents of Totteridge. They are very different socioeconomic groupings with very different health outcomes. What is the mechanism for addressing health inequalities between Tottenham and Totteridge? Who will be responsible for addressing inequalities between areas that are just a few miles apart but which have very different characteristics and very different social outcomes? The health and well-being boards are borough-based. Tottenham is in the London Borough of Haringey and Totteridge is in the London Borough of Barnet—neighbouring boroughs that are very different in composition. What will be the overarching structure that addresses those inequalities?
Earl Howe: Localism lies at the heart of our approach to these issues. Although I have no doubt that conversations and comparative analyses will take place between different health and well-being boards and different local authorities, in the end it is the responsibility of health and well-being boards to look to their catchments. As I said, the outcomes that are published, both in terms of the NHS performance and public health and social care, will in themselves incentivise improvement, if the local authority and the health and well-being board work together as they should. This is a joint enterprise between public health, social care and the NHS.
We shall no doubt experience the effect of comparative work between local authorities once the early implementer groups have bedded down and begun their work. Both the board, however, and the Secretary of State will have duties in relation to inequalities. They overarch everything that happens and I suggest that that will ensure that a system-wide and strategic approach is taken, for example, through setting objectives in the board’s mandate in relation to inequalities. These could feed down very easily to CCGs through commissioning guidance issued by the board. I hope that that gives the noble Lord a summary, or at least a flavour, of how we envisage this working.
Lord Harris of Haringey: May I just clarify? Will there be nothing between the board at national level? Will it look right across the country and say, “We will address these inequalities”? Will there be nothing, for example, at the London level, to address inequalities between different parts of London or will it simply be driven nationally? That is a recipe for not necessarily making the best decisions in particular areas.
Earl Howe: The noble Lord will know, because the NHS Commissioning Board authority has published its proposals, that the board will be represented sectorally. There will be field forces in all parts of the country. My vision of this, and that of Sir David Nicholson is that in the areas in which the board operates it will take a view across a region and look at how outcomes vary between local authority areas. The board will be very powerfully placed to influence the kinds of inequalities that the noble Lord has spoken of. It is important for noble Lords to understand that the board will not be a collection of people sitting in Leeds. The majority of its staff will be a field force. I hope that that is helpful.”
Earl Howe: My Lords, where a service is commissioned by the NHS Commissioning Board—and let us imagine that it is a specialised service—the patient’s recourse should be to the board. However, of course, the board will be represented at a local level rather than only centrally, and we expect that the board will be represented in health and well-being boards and in the discussions that take place there. It would therefore be possible for a patient to address their concerns, in the first instance, to the health and well-being board, which would have the ability and power to communicate directly with the NHS Commissioning Board, if that was felt to be appropriate. However, as I said, the patient would be able to go straight to the board in those circumstances.
Lord Harris of Haringey: I appreciate that this is very bad manners, given that I missed most of the debate. The Minister has just said—although perhaps I misinterpreted him—that the NHS Commissioning Board will have a representative on every local health and well-being board. If so, how will those individuals be known or accountable? Is that not the most extraordinary bureaucracy? He seems to have made a most extraordinary statement.
Earl Howe: My Lords, we are at Report stage and I hope that the noble Lord will forgive me if I do not reply at length. The point I was seeking to make was not about representation on the board but involvement in the health and well-being board’s wider deliberations. It is entirely open to a health and well-being board to invite a member of the Commissioning Board to be a permanent member, but I am not saying that we are prescribing that.’
So there will be – or at least can be – NHS Commissioning Board staff “influencing” or even sitting on local Health and Wellbeing Boards.
“the desirability of securing, so far as consistent with the interests of the health service”—
or whatever form of words you choose to have—this principle of autonomy, you are setting up an automatic conflict. If the form of words that the Minister and the noble Lord, Lord Marks of Henley-on-Thames, have put their names to was in the Bill, does this mean that the Secretary of State will be intervening when there are clear cases of postcode lottery? That presumably is the implication. Or is the Secretary of State now going to say that in fact a postcode lottery is what this legislation is designed to create? We should be clear what these clauses are trying to prevent. What is the problem that they are trying to solve?
The noble Lord, Lord Marks of Henley-on-Thames, was moving in his description of how the Secretary of State would weigh these difficult issues of the possible conflict between,
“the desirability of securing, so far as consistent with the interests of the health service”,
autonomy and the priorities of the fundamental role of the NHS. This is a balance that has to be weighed. He talked about this line of accountability that will exist between the NHS Commissioning Board and the CCGs—these tentacles that the NHS Commissioning Board will put throughout the NHS. They will be unaccountable and anonymous, and individuals will be operating at regional or at local level.
There will be an army of people operating as the tentacles of the NHS Commissioning Board. They will be informing the Secretary of State so that he can exercise his judgments about the balance between autonomy and meeting the principles of the NHS. I wonder whether the Secretary of State is creating the most extraordinary bureaucratic monster to solve a problem that could be easily solved simply by resisting his tendency to micromanage.”
And this prompted further exchanges:
“Earl Howe: My Lords, the noble Baroness, Lady Thornton, has spoken to Amendments 10 and 52, which, as she has said, would remove altogether the autonomy duties on the Secretary of State and the board. The noble Lord, Lord Harris, asked me what the problem is that the Bill is trying to solve in this regard. The duty is intended to promote a culture of fostering local autonomy rather than to outlaw specific practices; but without a focus on autonomy, it is possible that the mandate from the Secretary of State to the board or the framework document from the board to CCGs could impose disproportionately burdensome requirements on the system. The Government believe that local operational autonomy is essential to enable the health service to improve the outcomes of care for patients, provided that autonomy is within the framework of clear ministerial accountability.
The noble Baroness will be aware, because I have said it before, that we are aiming to free those closest to services to take decisions that are right for patients, free from central micromanagement by either the Department of Health or the NHS Commissioning Board. The amended duties, with the caveat that the interests of the health service take priority, achieve the right balance between autonomy and accountability. Without the clause, a future Secretary of State could choose to ignore one of the fundamental principles of the Bill, which is that those closest to patients are best placed to take clinical decisions. Without the clause, a future Secretary of State would be free to use his extensive powers to micromanage the NHS. The autonomy duty is a necessary part of the Bill, placing a duty on the Secretary of State to consider the expertise of those in the health service while recognising that there will be circumstances—
Lord Harris of Haringey: My Lords, the noble Earl seems to be saying that you cannot trust your own Secretary of State not to micromanage unless they are effectively forbidden from doing so. We have all talked of the Secretary of State’s accountability to Parliament. Surely the principle is that an accountable Secretary of State will be under enormous pressure from Parliament not to micromanage. If it is such a central issue of policy, Secretaries of State should simply be told not to do it, rather than requiring an Act of Parliament.
Earl Howe: I challenge the noble Lord to think of one Secretary of State, with the distinguished exception of my right honourable friend Mr Lansley, who has not succumbed to the temptation of micromanaging the NHS. No Secretary of State has been able to resist that temptation because, frankly, Parliament expects them to do it. That is what the system has expected of the Secretary of State. This is a burden on commissioners and clinicians, and, in the end, it does not well serve the interests of patients. It is all very well for the noble Lord to say, “Well, just stop”, but the system encourages it and the duties on the Secretary of State are there to encourage it.
Baroness Thornton: I cannot resist saying that the noble Earl’s right honourable friend Mr Lansley has dabbled and intervened on at least 12 occasions since the Bill started. He is on the record as saying on one of those occasions that certain managers should be sacked. Is the noble Earl saying that that will cease when this Bill is on the statute book?
Earl Howe: I am saying that the Secretary of State will not have the ability to micromanage the health service as he does at the moment. Whether the examples cited by the noble Baroness constitute micromanagement, if my right honourable friend is just expressing a view, I rather question.
Baroness Jay of Paddington: The noble Lord may be surprised to hear me ask this question because, as he kindly said, I have been very determined that the provisions on accountability and parliamentary responsibility et cetera should be strengthened in the Bill. However, I listened to what my noble friend Lord Harris said about what he described as the “increasing tentacles” of these links between the various providers and the Secretary of State. Is the Minister not becoming concerned—as I would in his position—that all this new accountability and these links undermine the basic policy positions of the Bill? That is why, for example, my noble friend Lady Thornton suggested that it would be cleaner—if that is the word—to remove the whole of Clause 4 from the Bill. The complexities that are being set up and strengthened, as the Minister has agreed, make the whole thing so incredibly complicated and bureaucratic that the underlying policy positions are being totally distorted.
Earl Howe: I do not share that view at all. I do not think that the autonomy and accountability arrangements are as complex as the noble Baroness seems to suggest. Autonomy and accountability are two sides of the same coin; one confers autonomy in exchange for accountability. That is the model that we have adopted and the one that I would hope that Parliament would wish us to adopt, given that substantial sums of public money will be at the disposal of commissioners throughout the NHS. I therefore do not see that the metaphor of tentacles employed by the noble Lord, Lord Harris, is actually very appropriate. It implies that there is an organisation holding those in the health service in a grip. That will not be the case. The role of the board is to support local commissioners; it is to be there as a resource to promote guidance, supported by the quality standards that we were debating earlier. It is not—I repeat not—a replica of the kind of line management that the NHS has seen to date.”
The Mayor of London and his policing surrogate, Deputy Mayor Kit Malthouse AM, are keen to introduce a pilot scheme in London whereby the courts could impose on offenders, whose offences were alcohol-related, a requirement that they be compulsorily tested for alcohol daily for a three months period with a positive test meaning arrest and appearance again in court.
Data in the US, where such schemes have been in place for eight years, show that reoffending rates after alcohol monitoring more than halved when compared with traditional sentences of fines or custody – with 99 per cent of tests being negative, and two-thirds of those on an alcohol monitoring scheme having perfect compliance throughout the whole period of the scheme.
This evening in the Lords, the distinguished cross-bench peer, Baroness Finlay of Llandaff, proposed a series of amendments that would permit such a pilot, saying:
“My Lords, this set of amendments concerns an alcohol monitoring requirement and is modified from those tabled in Committee on the Police Reform and Social Responsibility Bill. The alcohol monitoring requirement requires an offender to abstain from alcohol and be regularly tested to ensure compliance as part of any community or custodial sentence. It would provide an additional option—a new tool—for the courts.
These amendments would not stop responsible social drinking. They aim to deal with irresponsible, anti-social alcohol abuse and its devastating consequences. When I tabled these amendments previously, the Government’s response was that they would pilot the idea in October, using existing legislation for low-level crimes. October has come and gone. Where is the pilot? Anyway, this is needed for middle and high-level crimes, not just low-level crimes.
I should explain why we need primary legislation to undertake a proper pilot. London wants to do a pilot and will fund that pilot. The proposal has wide support. London Councils, which represents all 32 London boroughs, has written to Ken Clarke supporting the scheme. The chair of London Councils is Mayor Jules Pipe, the Labour elected mayor of Hackney. The scheme’s project board has representatives from Her Majesty’s Courts Service, London Probation, Public Health and the Crown Prosecution Service involved in developing the pilot. Consultation has involved domestic violence victims, Refuge, Women’s Aid, domestic violence offenders, health leads and those with an interest in the night-time economy from transport to addiction support services.
Today, I spoke to Bernard Hogan-Howe, the Metropolitan Police Commissioner, who is “fully supportive” of the proposal. He commented that alcohol is a precursor to crime in about 80 per cent of crimes in London and that after six o’clock at night you can smell the problem in the police cells. Violence against the person offences account for 64 per cent of Metropolitan Police alcohol flagged offences and criminal damage accounts for some 11 per cent of alcohol flagged crime. We should remember that only about 10 per cent of offences get flagged as alcohol-related even though, in recent British Crime Surveys, victims believe offenders to be under the influence of alcohol in about half of all violent incidents. The commissioner wants this to be a mandatory scheme. Voluntary schemes do not work because you need to support those who most need it and who are unlikely to recognise that need without compulsion. He wants this measure to act as a driver for better health as youth binge drinking is now a common cause of end-stage alcohol-induced liver failure in those aged under 25. We have a major social and health problem.
The Metropolitan Police view this measure as an additional tool against drink-driving and domestic violence. The proposed alcohol monitoring requirement has the potential to reduce reoffending for alcohol-related crime, particularly drink-driving and domestic violence, and contribute to long-term behavioural change of offenders. …
Courts need a different sentence to tackle alcohol-related crime because what we have is just not working. Custody tears families apart and single large fines damage the children in the home more than the offender. Neither custody nor fines address behavioural change. London wants to pilot this scheme in relation to offences of violence against the person, drink-driving and domestic violence. It is recognised that developing a scheme in relation to domestic violence would require particular care to ensure that the safety of the victim, including any dependants, is an integral part of the scheme.
These amendments will enable the court to take enforcement action on alcohol-related violence and to monitor compliance, particularly regarding middle-level offences such as common assault, offences against the person, threatening behaviour and domestic violence. How would it work? Pre-court screening aims to identify alcoholics whose needs are so great that the scheme would not be suitable for them. Alcohol monitoring as part of a suspended sentence, a community sentence or post-release licence would be an alternative to custody when the magistrate is satisfied that the offender understands the demands, which are no alcohol and daily testing.
Evidence suggests that the period needs to be 12 weeks to achieve real behavioural change. The court would order the offender to pay for each test—usually £1, which is less than such offenders are paying for their drinks. Let us get this in proportion: £2 a day is less than the cost of one pint of beer in a pub or two pints from many supermarkets. The cost of the monitoring to the offender is very low compared with the amount that they are normally spending on their huge alcohol intake—even when that is irregular. Testing would be done by either a private company or voluntary third-sector agency using paid staff, not volunteers. It will not tie up police constable time.
For the pilot, test centres would use existing court and probation premises near transport hubs. The initial alcohol test would be taken with a standard breathalyser. If it is positive, a second test would be taken with evidential standard equipment and mouthpiece. Breaches, which might be through a positive breath test, non-attendance or non-payment, would be dealt with using standard processes, with a swift and modest sanction such as an extension of the monitoring period in the first instance. Non-payment will need a flexible approach, particularly for those on benefits, and will be specified in the protocol. I have gone through the draft protocol but I shall not delay the debate by going through its minutiae.
The amendments are compatible with our human rights law—in particular, Articles 5 and 8, and habeas corpus. Let me be explicit: there is no compulsion on an officer to arrest a person for non-compliance and no compulsion to detain on arrest. An officer may arrest a person only when it satisfies the test of reasonableness and proportionality in Article 5.1(b).
In London alone, almost 9,000 cases would be suitable for the scheme. Between half and a quarter of these are people who are employed. The scheme would allow them to present for testing on the way to and from work, without any risk to their job. For offenders with anger and aggression issues, counselling and family support have the greatest chance of success when the participants are sober.
Existing orders that relate to offences for low-level crimes and have been used in cases of alcohol abuse do not have a success story attached to them. The alcohol-monitoring requirement would be appropriate for medium to high-level offences that require appearance at a court for sentencing. Existing orders were discussed with the Home Office and Ministry of Justice officials, but were considered inappropriate by those who want to pilot this scheme in London because, for example, drink banning orders keep people out of an area but do not halt the abuse, and are non-enforceable. Conditional cautions need to be voluntary, involve an admission of guilt and are managed by the police. The police do not want to use conditional cautions because they do not have the manpower and do not feel that such cautions are appropriate. Anti-social behaviour orders are civil orders to tackle harassment, alarm or distress to one or more persons not in the same household, and therefore do nothing to tackle domestic violence. Community sentencing could require attendance but not testing by breathalyser. Penalty notices for disorder do not require an admission of guilt, and do not count as convictions. The current fine of £80 is suitable only for minor offences.
I am sure that the Minister will say in response that the Government plan a pilot under community sentencing, just as they did previously for low-level offences, by using tagging for secure continuous remote alcohol monitoring—SCRAM devices that detect alcohol in sweat. These devices are not yet type-approved by the Home Office. They are bulky, are fixed around the ankle, and make a buzzing sound every 30 minutes as they sample the sweat. The offender cannot travel without prior permission because they have to be near the base station to download data daily. The wearer has to connect the device to the mains to recharge and cannot bath, use household cleaning or personal hygiene products that contain any alcohol at all, because that would give a false positive reading—and the device is in place for three months. As for the collection of the £1 test cost, the principle of hypothecation locally is already in place for asset seizures. The police can already hypothecate when the money is there.
We have an epidemic of alcohol abuse in this country. We cannot carry on doing what we are doing. It just is not working. These amendments would allow a full pilot to take place in a small area. London wants to do that to discover how well it works or not, and to iron out any problems. These amendments are essential to allow that pilot to happen. I beg to move.”
The amendments were supported by speeches from all parts of the House: Liberal Democrats, Lord Avebury and Lord Carlile of Berriew; Conservatives, Baroness Jenkin of Kennington and Baroness Newlove (whose husband was kicked to death in an alcohol-fuelled murder); Labour, Baroness Dianne Hayter, Lord Willie Bach (from the front-bench) and myself; and Cross-bencher, Baroness Howe of Idlicote.
Unanimity had broken out, until the Government spokesperson, Baroness Northover (a Liberal Democrat, but no doubt a Conservative Minister would have said the same as they did when the same proposal was raised a few months ago) rose to respond.
She offered supportive phrases:
“we very much support the principle of the intention of the noble Baroness and other noble Lords who have contributed to this debate.”
Supporting “the principle of the intention” is a bit like those non-apology letters you get saying “we are sorry you found it necessary to complain”.
And promised two non-statutory pilots (which would be unlikely to reach the most serious offenders) – in due course = when the Government has published its alcohol strategy and gone throughout the approval process for the technology it wants to use.
And, of course, the Government wants
“to hear the views of the judiciary, professionals within the criminal justice system and the public on the proposals. We will therefore be consulting in parallel with the pilot schemes to ensure that we give full consideration to the purpose, effect and benefit of sobriety schemes as we develop work further.”
“I will not press my amendment tonight, but I look forward to further discussions, and I must warn the Government that if I do not get satisfactory answers I intend to bring this back on Report.”
On BBC London News today, I was asked about the terrorist threat, following the recent RUSI report. I think RUSI are right to highlight the concerns about so-called “lone wolf” terrorists, but I also thought it was worth putting in context that over the last decade a citizen’s chance of being killed in any one year on mainland Britain as a result of a terrorist atrocity is about ten million to one.
Let’s keep these things in proportion.