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I accept that I have a certain strength of feeling about this, but this is not just my view; those two calm heads and former Cabinet Secretaries, the noble Lords, Lord Turnbull and Lord Butler, have used quite exceptionally severe words when speaking about it. The noble Lord, Lord Butler, told the Committee of this House that this Bill, which commits a future Government to huge expenditure, was,

I wonder whether he ever put that into Cabinet minutes. These are strong words. The noble Lord, Lord Turnbull, said that the Bill was,

we should not let it through. Cabinet Secretaries do not use their words lightly, and those are words that the whole House should weigh in its consideration this afternoon.

It is now 38 long years since I first started work in and around Westminster, and in that time Governments have done some pretty disgraceful things and Parliament has passed some pretty bad Bills. But, rack my memory as I will, I cannot recall in my lifetime an example of a piece of legislation which has so completely caused a British Government to ignore the precepts of good governance. Never mind the policy: look at the way it has been done and let your Lordships put that right. Fortunately, we exist in our constitution for one very specific purpose: as a backstop against constitutional abuse. Today, I hope we will carry this amendment, as we carried the amendment of the noble Lord, Lord Best, and as I trust we will carry others. That will at least gives pause to this headlong rush into half-baked legislation. Resolving the problem will be a matter for incoming Ministers with an up-to-date mandate from those who should ultimately decide these things-the people of this country.

Earl Howe: My Lords, in supporting everything that the noble Lord, Lord Lipsey, has said, I would like to add my own very brief perspective on this amendment, lest the attitude of my party is in any way unclear. This amendment would in no way frustrate the Government's ability to deliver on schedule their policy of free personal care at home to those in the most severe need; it does not tie the Government's hands except in the loosest sense. Should the current Government be re-elected at the general election in a few weeks' time, all they would need to do is lay the appropriate regulations immediately.

If, on the other hand, a Conservative Government were elected, Ministers would be able to take what we believe is the responsible course, which is to cost this policy properly, make sure that it is affordable in the context of the overall public finances and that it is deliverable in terms of the human resources that will be needed. None of these things is clear yet. The Government have brought this policy in, as the noble Lord, Lord Lipsey, has said, on the hoof, and they are blatantly playing to the gallery in so doing. I do not

17 Mar 2010 : Column 629

think that that is a responsible approach for any Government to take, particularly at a time of economic stringency. Our wish, if we are elected, is to achieve a political consensus on the long-term reform of social care policy, which would include a fair and coherent framework of social care funding to apply across the spectrum. In doing that, we would want to pick up the pointers and challenges laid down in the Government's well argued Green Paper of last summer.

As I said in Committee, I would have liked to see this Bill act as the enabling legislative vehicle for at least part of that comprehensive reform package. The undesirable and unintended consequences which I believe will ensue from this scheme if it is launched on its own could have been mitigated very substantially by a graduated scale of entitlements which avoided the cliff edge that this scheme will create and by creating appropriate counterbalances to the perverse incentives inherent in the Government's policy. That is clearly not to be, but given that Ministers are not interested in that broader idea, I do not think it is in any way wrong for an incoming Conservative Government, if they arrive, to make the introduction of this policy dependent on a much more thorough analysis of the risks that it carries and the financial burdens that it will impose on local government-for we really cannot say, as of today, that we have certainty on either of those things.

Baroness Thornton: My Lords, this amendment in the names of my noble friend Lord Lipsey, the noble Earl, Lord Howe, and the noble Baronesses, Lady Barker and Lady Murphy, would require that a commencement order would need to be made before the proposals in the Bill could come into force. Additionally, such an order would need to be approved by the affirmative procedure, with consideration in this House and the other place.

Not only has this one-clause Bill had considerable scrutiny in this House and the other place, it has been openly and transparently discussed with many stakeholders over recent months. I covered this issue at length at Second Reading and in Committee, and the Government published their response to the consultation on regulations and guidance on 12 March 2010. Therefore, given the extensive scrutiny that this Bill has had here and in the other place, and more widely with stakeholders in the sector, we consider this amendment unnecessary.

In addition, the Delegated Powers Committee reported on the powers in the Bill on 22 January 2010. It said:

"There is nothing in the Bill to which we wish to draw the attention of the House".

In other words, the negative procedure is appropriate.

5.30 pm

My noble friend Lord Lipsey has tabled the amendment in the knowledge that the statutory provisions he is proposing would mean that the timetable for delivering free personal care from October would be placed in jeopardy. Please note that I have not used the word "wrecking" at any point during these debates, nor do I intend to do so. This is the Government's priority and I can assure my noble friend that we will do whatever is necessary to deliver to that deadline for those people

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who need to benefit from this Bill. I would say to the noble Earl that if his party is so concerned to move forward to tackle the broader issues of social policy, it is a shame it pulled out a few months ago.

I remind the House that the Bill had an unopposed passage in another place and that there were extensive discussions with stakeholders, voluntary organisations and charities throughout. Today, I received a copy of a letter from Carers UK urging the Government not to delay. Given previous discussions, the amendment would not serve the best interests of councils, as it would introduce yet further uncertainty into their plans for implementation were this to be agreed.

Therefore, I urge all noble Lords to ensure that the Bill is not put at risk of delay and that they do not seek to jeopardise the delivery of this policy in October. I would ask that the amendment is withdrawn or, failing that, that it is opposed.

Lord Lipsey: My Lords, I think that the Minister is beginning to tire of her task, given the perfunctory nature of those remarks. Within them, I think that she inadvertently misled the House as to the findings of the Delegated Powers Committee. It did not question the use of negative resolution procedures for regulations under the Bill as it then stood. Whether that was an inadvertency on its part or an oversight, or whether it should have done, does not matter because the House is not bound by it anyway.

The Delegated Powers Committee could not have considered whether this power-that is, the power to bring the Bill into force-should be by affirmative or negative resolution because it is only now before the House. It seems to me to be clearly appropriate that a decision of this magnitude, which was really a decision around which so many of our debates have evolved, must be taken by affirmative resolution in both Houses, as this amendment proposes.

The breath is somewhat taken away when I hear that the Bill had extensive scrutiny in another place or that it was not opposed. As I have pointed out to the House, this amendment was moved in another place by the two Opposition parties-unfortunately, it was defeated by the Government majority-in one day of frenetic proceedings when the whole Bill was shoved through. I think that your Lordships will recognise that if ever there was a Bill that required detailed scrutiny, it is the Bill before us today. This is not frivolous legislation. It has widespread administrative, financial and, most important, personal and social implications.

For the Minister to claim that a single day's consideration in the Commons represents proper consideration of this Bill is not a proposition with which I could assent. I trust that the House will refuse to assent, as I test the opinion of the House in the Lobbies.

5.33 pm

Division on Amendment 5

Contents 201; Not-Contents 134.

Amendment 5 agreed.



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Division No. 2


CONTENTS

Addington, L.
Alderdice, L.
Allenby of Megiddo, V.
Anelay of St Johns, B.
Armstrong of Ilminster, L.
Arran, E.
Astor, V.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Ballyedmond, L.
Barker, B.
Bates, L.
Bell, L.
Best, L.
Bilimoria, L.
Blackwell, L.
Bottomley of Nettlestone, B.
Bowness, L.
Bradshaw, L.
Bramall, L.
Bridgeman, V.
Brittan of Spennithorne, L.
Broers, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnett, L.
Buscombe, B.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Cathcart, E.
Chidgey, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Courtown, E.
Cox, B.
Craig of Radley, L.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Dear, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Dykes, L.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Feldman, L.
Ferrers, E.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freud, L.
Garden of Frognal, B.
Gardner of Parkes, B.
Geddes, L.
Glasgow, E.
Glentoran, L.
Goodhart, L.
Goodlad, L.
Goschen, V.
Greaves, L.
Greenway, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hamwee, B.
Hanham, B.
Harris of Peckham, L.
Harris of Richmond, B.
Henley, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Inge, L.
James of Blackheath, L.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Jopling, L.
Kerr of Kinlochard, L.
Kimball, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Lamont of Lerwick, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lipsey, L. [Teller]
Listowel, E.
Livsey of Talgarth, L.
Low of Dalston, L.
Lucas, L.
Luke, L.
Lyell, L.
Lyell of Markyate, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Maginnis of Drumglass, L.
Marland, L.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Murphy, B.
Naseby, L.
Neuberger, B.
Neville-Jones, B.
Newton of Braintree, L.
Nicholson of Winterbourne, B.
Northbourne, L.
Northbrook, L.
Northover, B.
Norton of Louth, L.
Norwich, Bp.
Oakeshott of Seagrove Bay, L.
O'Cathain, B.
O'Loan, B.
O'Neill of Bengarve, B.
Palmer, L.
Patten, L.
Pilkington of Oxenford, L.
Plumb, L.
Powell of Bayswater, L.
Prashar, B.
Ramsbotham, L.


17 Mar 2010 : Column 632

Rawlings, B.
Reay, L.
Redesdale, L.
Renton of Mount Harry, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rogan, L.
Ryder of Wensum, L.
Sainsbury of Preston Candover, L.
St. John of Bletso, L.
Scott of Needham Market, B.
Seccombe, B. [Teller]
Selkirk of Douglas, L.
Selsdon, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shrewsbury, E.
Shutt of Greetland, L.
Skelmersdale, L.
Soulsby of Swaffham Prior, L.
Steel of Aikwood, L.
Sterling of Plaistow, L.
Stern, B.
Stevens of Kirkwhelpington, L.
Stevens of Ludgate, L.
Stewartby, L.
Stoddart of Swindon, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Tebbit, L.
Tenby, V.
Teverson, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Trimble, L.
Trumpington, B.
Tugendhat, L.
Turnbull, L.
Tyler, L.
Ullswater, V.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Warner, L.
Warnock, B.
Wilcox, B.
Wilkins, B.
Williamson of Horton, L.

NOT CONTENTS

Acton, L.
Adams of Craigielea, B.
Adonis, L.
Afshar, B.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Bhattacharyya, L.
Bilston, L.
Boothroyd, B.
Boyd of Duncansby, L.
Bradley, L.
Brett, L.
Brookman, L.
Brooks of Tremorfa, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corston, B.
Crawley, B.
Davidson of Glen Clova, L.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Desai, L.
D'Souza, B.
Dubs, L.
Elystan-Morgan, L.
Erroll, E.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falkender, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Foster of Bishop Auckland, L.
Gale, B.
Gibson of Market Rasen, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Grantchester, L.
Grenfell, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Hattersley, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Ewelme, L.
Jones, L.
Jones of Whitchurch, B.
Jordan, L.
Kennedy of The Shaws, B.
Kilclooney, L.
King of West Bromwich, L.
Kinnock, L.
Kirkhill, L.
Lea of Crondall, L.
Levy, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Moonie, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.


17 Mar 2010 : Column 633

Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
O'Neill of Clackmannan, L.
Parekh, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Ripon and Leeds, Bp.
Robertson of Port Ellen, L.
Rosser, L.
Rowlands, L.
Sawyer, L.
Scotland of Asthal, B.
Simon, V.
Snape, L.
Soley, L.
Strabolgi, L.
Sugar, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L. [Teller]
Turner of Camden, B.
Uddin, B.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Waverley, V.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Woolmer of Leeds, L.
York, Abp.
Young of Norwood Green, L.
Young of Old Scone, B.
5.45 pm

Amendment 6

Moved by Lord Warner

6: Clause 2, page 2, line 31, at end insert-

"( ) This Act shall not come into force until the Secretary of State has commissioned an independent review of the affordability of the provisions contained within this Act and has laid the report of that review before both Houses of Parliament."

Lord Warner: My Lords, this amendment is in my name and those of the noble Baronesses, Lady Barker and Lady Murphy, and the noble Earl, Lord Howe. The amendment arises solely from the Government's failure to convince people in this House and outside that the Bill is soundly costed and affordable. To get in first, let me say that this is a good governance amendment, not a wrecking amendment.

The concerns over affordability have been made worse by the fact that we do not know how the Bill would fit into any longer-term solution and what the cost of that solution would be. We know, however, that the Government have failed to convince the Health Select Committee, the LGA, the Association of Directors of Adult Social Services and the King's Fund with their numbers, so I feel in quite good company.

I shall anticipate the Minister's response that the Government's estimates are based on independent analysis by the PSSRU at the London School of Economics. The trouble is that the Secretary of State would not let the Health Select Committee see the detailed workings, despite two written requests, and the assumptions behind some of the computations look decidedly shaky. If the number of weekly care hours assumed for people with critical needs, demand assumptions and price increases used all look unrealistic, as I think they do, the Government's figures are going to be unconvincing-and that is what they are.

I start with the ADASS cost figures. I will not repeat my Second Reading speech, other than to remind the House that ADASS said that the Bill would cost at least £1 billion a year to implement, compared to the Government's figure of £670 million. The Government

17 Mar 2010 : Column 634

have consistently tried to rubbish the higher figure by saying that ADASS admitted overestimating some of its costs. However, the association said to me, in a letter dated 15 March:

"At no time have we admitted that the results from our survey were an overestimate of the true state of affairs that would occur if the Bill were to be implemented. If anything, we deliberately decided to underestimate as far as we possibly could, wherever we could, so as to avoid appearing to exaggerate or talk up our figures".

The association has not "sexed up" its figures. It sticks firmly to its estimate of at least £1 billion a year, which is based on real-world calculations from its members. I confirmed this again with the association yesterday by e-mail.

ADASS is supported in its view by the LGA. The noble Lord, Lord Best, has already indicated some of the arguments on that, so I will not repeat them. Moreover, the Health Select Committee sided with ADASS's position more than it did with the Government's. In paragraph 296 of its report of last Friday, the committee said:

"Furthermore, estimates of the likely levels of demand and cost appear low, and there is a risk that the reform could be substantially underfunded".

The committee was not helped in its deliberations by the Secretary of State's reluctance to provide his workings, as it made clear in paragraph 280.

I have rather more confidence in the ADASS figures than I do in the Government's, but that £1 billion figure is itself likely to rise faster than the Government estimate and this at a time when the public finances will be deteriorating, whoever is in government. That is because the Government's assumptions on demand and cost inflation are optimistically low. Their impact assessment states that there will be a 1.5 per cent annual increase in service volume due to demography and a 2 per cent annual increase in price for pay increases.

The Government deny that there is any valid comparison between their scheme and what has happened in Scotland since home care was made free. I accept that there is not a direct comparison between this scheme and the Scottish one, but that is not the same as saying that there will be no similarities in human behaviour when you make this care free for some people. In Scotland, the number of people claiming went up by 36 per cent in four years when care was made free. In the last of those years, cost increases by care providers went up by 15 per cent-that was in a single year. There has to be a wide variation between what has happened in Scotland and what will happen in England, but I simply do not believe that the human beings either side of Hadrian's Wall are that different in their likely behaviour when something is made free. Totally ignoring the Scottish experience as the Government are doing seems to me contrived. The Health Select Committee clearly did not believe the Government's estimates on future cost increases for this Bill and neither do I.

Lastly, there is the issue of whether local government is being treated fairly over funding this legislation. The noble Lord, Lord Best, has described well its grievances, so I will not repeat them. However, if ADASS and the LGA turn out to be right about the costings-as I

17 Mar 2010 : Column 635

believe they will-it will be a pyrrhic victory, because they will have to pick up the extra tab, which could well be over £300 million in the 2011-12 financial year alone. There is also something of a conjuring trick about how local government is supposed to meet its £250 million share of the claimed £670 million annual cost. The Government have said that local government is expected to find its share from the 4 per cent efficiency savings that it is to deliver in 2010-11 so that there are no extra burdens. In its letter of 15 March, ADASS said to me:

"We believe this is very poor reasoning. We are already delivering 4% savings to fund demographic changes and to keep council tax increases down. As a result of the PCaH there will have to be additional savings or increases in council tax".

Since it is difficult to increase council tax so close to the new year, this looks like cuts in services and possibly cuts to other elderly and vulnerable people, as others indicated earlier in the debate. The Government should accept the reasonable local government argument that this is a new burden that should be properly funded by central government.

We are at the beginning of a long, difficult and expensive road to comprehensive and durable reform of adult social care. This is probably the biggest social policy issue facing us in the next few years. A recent report by the London School of Economics suggests that the cost of free personal care for the elderly could have a price tag of an extra £20 billion a year building up over the next couple of decades. Getting the sums right and apportioning the cost fairly will be an important part of the journey that will have to be undertaken on, I hope, a cross-party basis.

With this first faltering step on this journey, the Government have not covered themselves with glory in their costings. They need to accept some help with the numbers from an independent source-I would suggest an organisation such as the Audit Commission or the King's Fund. This amendment will help them to get back on track without delaying the implementation of the Bill beyond next spring as the House voted for earlier this afternoon. I beg to move.

Earl Howe: My Lords, I strongly support this amendment. The Government's assurances that the Bill is affordable and that their costings are robust are belied by their own statements, never mind anything being said by local government or ADASS. It is worth reminding ourselves of some of the relevant parts of the impact assessment. First, there is the basic question of how many people stand to benefit from this policy. We do not know the answer to that question. Paragraph 5.5 of the impact assessment states:

"Data relating to the number of people who are defined as FACS Critical at any point in time and the relative distribution of their needs/disability is not something that is routinely collected at the centre".

Paragraph 8.8 states:

"We know very little about the disability of those younger adults who do not already receive free personal care, so all of the estimated costs ... are themselves uncertain".

Paragraph 5.10 talks about,


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