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House of Lords

Friday, 13 March 2015.

10 am

Prayers—read by the Lord Bishop of Leicester.

Local Government (Religious etc. Observances) Bill


10.07 am

Relevant document: 19th Report from the Delegated Powers Committee

Amendment 1

Moved by The Earl of Clancarty

1: Clause 1, page 1, leave out lines 4 to 15

The Earl of Clancarty (CB): My Lords, I will speak to Amendments 1, 2, 3, 4 and 5. Amendment 2 is consequential to Amendment 5. They all deal with new Section 138A, which is the meat of the Bill, concerning council prayers. I am very grateful to the noble Lord, Lord Garel-Jones, and the noble Baronesses, Lady Meacher and Lady Flather, for putting their names to Amendment 1, which seeks to remove council prayers from the Bill, but leaves new Section 138B, which deals with religious events. The noble Lord, Lord Garel-Jones, and the noble Baroness, Lady Meacher, give their apologies that they cannot be present this morning.

This time two weeks ago, the House was discussing a global matter in the shape of the International Development (Official Development Assistance Target) Bill. We have gone from the global to the local, albeit applied nationally in England and Wales, and the very local indeed if you cast your eye over the very extensive list on pages 2 and 3 of bodies to be covered by this Bill. Nevertheless, this Bill is, or ought to be, understood as being part of something larger, which is the place of religion in society and, indeed, the place of religion in the workplace, which is the subject of a significant report published yesterday by the Equality and Human Rights Commission.

At Second Reading, the noble Lord, Lord Cormack, said that the Bill is a simple measure. In a way, that is true, but what he did not say is that it is an uncontroversial measure. There are Private Members’ Bills that pass through this House—we have had one or two recently—that have close to unanimous support from Peers and public alike. This is not such a Bill, and therefore deserves the scrutiny that it is now able to get.

One of my concerns about this Bill is the place it came from. Why was there felt to be a need for this Bill in the first place? That is the question to be asked of anyone who says that this is a modest measure. Instead of the Government asking how widely shared are the concerns that individuals may feel excluded after the 2012 High Court ruling, which would be the proper

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and realistic response to that ruling, in reaction a Bill has been brought in that simply wants to put us back to where we were and sweeps such concerns under the carpet and refuses to acknowledge them.

As I said at Second Reading, councillors are not elected for their religious beliefs. They are elected for what they are pledged to do for the local area and for their political affiliations. Councillors are the electorate’s servants. In that light, if we are to have this Bill, in the interests of what should be the scrupulous impartiality of councils towards all beliefs and non-beliefs, a better compromise solution would be silent prayer, which I have tabled as Amendment 3.

The noble Lord, Lord Cormack, and I share views about areas of arts and culture. For example, I am completely with him in his campaign to restore and maintain the great cathedrals and churches, which are great religious works of art, but I do not believe in tradition for its own sake. The fact that a council has been saying prayers as part of official business for hundreds of years does not mean that it should be saying prayers for the next few hundred years, and not today if that is an inappropriate practice in the modern age. I stress that we now live in a multi-belief and non-belief culture. At the very least, traditions can be modified, and Amendments 4 and 5 are reasonable improvements to the Bill. I thank the noble Lord, Lord Avebury, for his support for these amendments.

Amendment 4 would do quite a bit to mitigate a sense of exclusion by separating prayers and the remainder of business from each other. Amendment 5 ensures a two-thirds majority agreement that has to be renewed annually, ensuring that if prayers are a tradition they are nevertheless a living tradition that is not to be taken for granted. I hope that not only the noble Lord, Lord Cormack, but the two Front Bench speakers would agree that these are two very reasonable amendments to the Bill. I say “would” because, because of time constraints, we are in the invidious situation of this being an all-or-nothing Bill. I am not sure whether that is democracy in action, but it is the situation. I beg to move.

The Lord Speaker (Baroness D'Souza): I should remind your Lordships that if this amendment is agreed to, I cannot call Amendments 2 to 5 by reason of pre-emption.

Lord Avebury (LD): My Lords, I am grateful to the noble Lord, Lord Cormack, and the Minister for the meeting we had with them to discuss the Bill and our amendments earlier in the week, even though it was apparent that there was a fundamental difference of opinion between us about the relationship between religion and the affairs of secular authorities. The noble Earl, Lord Clancarty, has done your Lordships an important service in enabling us to underline these differences, which may not be reflected so clearly among us as they are in the country at large.

As the Bill’s supporters observe at every opportunity, this Bill is permissive, but that does not justify it. It enables the majority of the persons on a passenger transport executive, for example, to hold prayers during their meetings and to support or facilitate, presumably

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with public money, a religious event. If they exercise these powers, they are in no way contributing to the comfort, welfare or any other benefit of their passengers, but on the contrary they are subtracting from the time available for considering how to improve the services they provide for the public.

The argument that these matters should be for the majority to decide is not acceptable. It is no triumph for democracy if the local authorities and other bodies covered by this Bill are given power to impose something which is bound to divide members from one another according to their religion or belief. It would mark out those who do not participate in the observance as not being full members of the body concerned, a body which in most cases would be subject to the public sector equality duty.

That duty, imposed by the Equality Act, means that any authority considering the use of these powers would have to consider whether they are compatible with the public sector equality duty, a matter to which I take it the noble Lord, Lord Cormack, has given some thought. When he comes to reply, he can perhaps explain why he thinks the powers are indeed compatible with the public sector equality duty when, instead of enhancing religious freedom, the Bill imposes the procedures of a religious majority on those who have been elected to do a secular job.

Therefore, I support Amendment 1 in the name of the noble Earl, Lord Clancarty, which omits proposed new Section 138A, which deals with prayers. If my noble friend Lord Cormack is not prepared to accept that proposal, I ask him at least to accept Amendments 2 and 4, which require a two-thirds majority for prayers.

No satisfactory answer has been given by the Bill’s supporters as to why those who wish to pray cannot do so informally before or after a meeting of the council or other body in their own time. Those who oppose council prayers are accused of intolerance. However, the advocates of prayers always refuse to acknowledge that no objection has been raised by us to prayer before council meetings, as indeed the National Secular Society suggested at the High Court hearing on the Bideford case.

As the Bill stands, those not wishing to participate in prayers have either to put up with them or draw attention to themselves by leaving the chamber in front of the public and then returning, probably without the chair making their nonconformity less obvious by suspending the proceedings. Both options are gratuitously unwelcoming, discourteous and divisive.

10.15 am

These concerns are not purely theoretical. I quote a Muslim former Tory councillor in Reigate and Banstead Borough Council. He says of his experience of council prayers:

“I found this experience to be wholly alienating. As someone who does not wish to recite Christian prayers, I had to wait outside the room while the prayers were taking place. This clearly set me apart as being different from all the other councillors, several of whom suggested to me that not only was I being ‘difficult’ as this was such a trivial issue, but that I had no right to exempt myself from the meetings. Since I had to walk across the floor afterwards, bumping past the mainly elderly white audience,

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people thought I was either purposely trying to be disrespectful to their beliefs, or I was late to the meeting—something taken very seriously by other councillors”.

Senior Tory councillors at the time advised him that, if he did not like the way things were being done, he should consider leaving the country. He received an email from an executive member of the council, which was copied to the rest of the Conservative group:

“As far as I am concerned the most basic gift we can offer the minorities is the one we all enjoy and that is freedom. Freedom to not attend, walk away, or go somewhere else if you don’t like the way we live”.

That view was apparently shared widely by the other Conservative members of the council. The Muslim councillor told the National Secular Society that:

“Being told to consider leaving the country if I do not agree with a … culturally chauvinist view of society—one at odds with the judgment of a High Court Judge—certainly sits uneasily with my need to participate as an active citizen who believes in liberal democratic freedoms”.

Amendment 4 in the name of the noble Earl, Lord Clancarty, goes some way to ameliorate that problem, and I am very happy to support it.

A significant proportion of the staff who do not wish to pray will feel unable or embarrassed to leave the chamber. My noble friend Lord Cormack seems to have overlooked them entirely, although that may also conflict with the authorities’ public sector equality duty. I ask my noble friend to confirm whether this matter has been considered and whether he can say what legal advice he has received on it.

The Bill’s supporters claim that the Bill simply restores the position that was thought to be the case prior to the High Court judgment in the Bideford case. The assumption that prayers were intra vires seems to have been made without legal advice, probably by those who think that there can never be too much religion in public life. However, there have been no suggestions that the High Court ruling was in error, and your Lordships should note that there was no appeal against it. It is unfortunate when a Minister of the Crown, Mr Eric Pickles, shows little respect for the courts in his derogatory reference to a judgment that does not go his way. The BBC quotes him as saying:

“By effectively reversing that illiberal ruling, we are striking a blow for localism over central interference, for freedom to worship over intolerant secularism, for Parliamentary sovereignty over judicial activism, and for long-standing British liberties over modern-day political correctness”.

That is the view of Eric Pickles.

Finally, on the subject of prayers and the claim that this is a modest Bill: the Explanatory Notes assert that the Localism Act gives principal authorities the powers,

“to have prayers as part of formal meetings”.

The lawyers who advise the National Secular Society disagree with this. Will my noble friend Lord Cormack arrange for a copy of the legal opinion on which this claim in the Explanatory Notes is based to be placed in the Library of the House in the next few days, and can he say whether the Bill, as well as the Explanatory Notes, were drafted by the DCLG, and at what cost to the taxpayer? If the lawyers who maintain that the Localism Act does not give the power that the Explanatory Notes claim they do are correct, the Bill is not making a modest incremental change but a fundamental one:

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and that is before one takes account of the quite extraordinary and diverse list—two pages long—of bodies that have never been able to summon their members to prayers and are now being empowered to do so.

I would like to hear from my noble friend whether he and his supporters think prayers are an effective means of pursuing the welfare of citizens living in the area of a local authority and, if not, what conceivable benefit to the public lines 4 to 15 can have. The key question your Lordships should be asking is whether prayers are essential to the good conduct of local government because, if not, all the amendments in this group should be supported.

Lord Elton (Con): My Lords, it is not necessary to support the racist remarks of some councillors to resist this amendment. I merely draw to the attention of my noble friend Lord Avebury the fact that the provisions here are not mandatory—they are permissive. Nothing is being forced on anybody. Secondly, as to how you get over the difficulty of not participating in prayers in a public body without drawing attention to yourself, I commend my noble friend to do as others do in this Chamber, which is to wait outside and then come in, with no need for the sitting to be suspended.

The Lord Bishop of Leicester: My Lords, perhaps I should declare an interest, having just led the Prayers in this Chamber.

What concerns me about the opening remarks from the noble Earl, Lord Clancarty, is the assumption that in a multireligious and secular society it is in the interests of all the religions to evacuate the public space of any religion. That is not my experience in Leicester at all, which is one of the most multireligious cities in this country. A few years ago, a Lord Mayor of Leicester decided, having the powers so to do, to discontinue prayers in the council chamber before meetings of the council and, at the end of his mayoral year, leaders of the other faith communities pressed hard that prayers should be reinstated in the chamber. It has been our experience continually that the argument for prayer in public comes from the leadership of the many faiths in Leicester. That has also been the case in the remembrance observances, which have grown during my time as bishop from about 1,000 people—in Victoria Park on Remembrance Day—to somewhere between 4,000 and 5,000, where Muslims, Sikhs, Jews, Hindus, Christians, Baha’is, and Buddhists stand and remember together in public those who have fallen in war.

The point was made in the opening remarks about the connections between the global and the local. Those are profound connections, particularly in our great cities. The solidarity of people standing together in respect for the divine is a very significant part of how we preserve cohesion in our society.

Lord Avebury: But these amendments have nothing to do with Remembrance Day services.

Lord Cashman (Lab): My Lords, I preface my remarks in support of the amendments by declaring an interest as a patron of the National Secular Society and the

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British Humanist Association. I know that I will probably be in a minority, but it will not surprise noble Lords to hear that it will not be for the first time in my life—and it certainly will not be the second. I thank the noble Lord, Lord Cormack, for the Bill, the noble Earl for his amendments and, indeed, the noble Lord, Lord Avebury, for his contribution.

As is said at the end of “King Lear”, and as is good to bear in mind in debates such as this, one should,

“speak what we feel, not what we ought to say”.

As I have declared, I am an atheist. I absolutely respect religious belief and conviction, but I cannot agree with this Bill because I believe that many of the problems that we face in this country and in the world today are because religion and belief occupy to a larger and greater extent the public space, with a direct connection with politics. I believe that religion and belief are deeply personal and private. Indeed, within my own family, members of the same religion do not practise and believe in the same way.

This Bill seeks to bring a kind of unity of prayer, a unity of celebrating the divine. What about those who, through their religion, are excluded, because their religion is not addressed at the beginning of the proceedings? Does that bring unity? On the contrary, there is exclusion. When people in religious groups across the world feel excluded, they may rush into the arms of others, who will encourage them into believing that they are not excluded and that they should practise their faith to a greater and sometimes extreme extent. The Bill sends a very worrying message that there are those within and those without. Amendment 5 is an eminently sensible way in which to approach that, by agreeing to such proceedings with a two-thirds majority.

I shall not detain your Lordships’ House any further, but I have deep concerns about the intentions of the Bill and, subsequently, the unintended consequences that could occur, not only in council meetings within our cities and suburbs but within those other places, in committees and meetings, to which the Bill extends prayers. I speak wholly in support of the amendments.

Baroness Flather (CB): My Lords, first, I want to draw attention to what the noble Lord, Lord Elton, said. There is a very crucial word—“may”. We should not forget that word, and I think that it is being forgotten today. They “may include”. I was a councillor for 15 years. As far as I can remember, the main prayers were said at council meetings, not at every meeting. This Bill seems to suggest that every possible meeting should have a prayer before it, including sub-committees. Everything is included, including sub-committees. So no—we did not do that.

I was Deputy Mayor and Mayor for the Royal Borough of Windsor and Maidenhead, and in those two years I possibly attended more church services than most noble Lords, and I have read more lessons than maybe some noble Lords. People always said to me, “When you read the lesson, we like it”. Why was that? It was because I had not read it before, so I read it with feeling. I am an atheist. I do not have any problem; I will read lessons at a church service and attend a church service—I will do what is required of me, whether in a mosque, a church or a gurdwara.

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As an atheist, you respect other people’s faiths; you do not have one yourself, but that means that you are not fighting any faith.

Those who have faiths become more antagonistic to other faiths. This is the problem here. We are saying that we are not accommodating different faiths. I would never accept that prayers should be a part of council meetings—they cannot be part of them, because it is not council business. It does not concern the people being looked after in the area. They are not part of a council meeting. They are asking for a blessing on the work of the people who are trying to do their best. That is what it is all about—and, in a way, that is what it is all about here.

I wondered whether this issue could not be resolved by doing something different. Here, those of us who are not religious do not take the oath any longer—we affirm. Cannot we have an affirmation to honour this and that and try to do our best at the beginning of every meeting? That would be so much more in keeping with today.

10.30 am

Lord Cormack (Con): I apologise for intervening and am grateful to the noble Baroness, but this Bill allows that to happen because a council can have a period of quiet reflection or prayers of any faith can be said—all choices are available. The word underlining all of them is “may”, with which she began her speech.

Lord Lea of Crondall (Lab): As regards there being a party line on this side which is—

Baroness Flather: I am sorry; I had not finished speaking. I am glad to hear what the noble Lord said but it is not spelled out. It is implied but we need to spell out that it is not essential to have prayers and it is for the council itself to decide what it would like to have. Perhaps it would like to have an inclusive, non-religious procedure invoking help in carrying out its business, or just a period of quiet reflection. I would prefer a period of quiet reflection as, given that I am an atheist, it is the only thing I could participate in. I could not say prayers or invoke help from anybody because I have decided not to do so. We have to think about this issue on a practical level. There is an awful lot in this Bill which makes people think that some of its measures are compulsory.

Lord Lea of Crondall: My Lords, for the avoidance of doubt, as regards my reflecting a party line on this side of the House which is aligned with the views of the National Secular Society, I believe that the remarks of the right reverend Prelate the Bishop of Leicester reflect the position in many parts of the country. This is not a case of religion invading a public space; it is the settled view of society at present. We have debated the establishment of the Church of England. Without going back to the time of Henry VIII, it is a fact that the monarch, as head of the Church of England, is also able to ensure that other religions are respected in this country. I have the highest regard for the noble Lord, Lord Avebury, but I do not think that the

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examples he gave were at all representative of people feeling excluded, any more than that is true of noble Lords being corralled outside the Chamber in some sort of terrible dungeon waiting to come in after Prayers have been said. I think there is a category confusion in the argument being advanced.

Lord True (Con): My Lords, I intervene as a leader of a local authority. I declare an interest as leader of the London Borough of Richmond, where our council meetings—but no others—start with a period of prayer. It is not spoken prayer but is currently admirably led by the mayor’s chaplain, Jeff Hopkin Williams. The prayers do not need to be led by a Christian pastor. In the 30 years I have been on the council, we have had prayers led by people of all faiths and, indeed, by people from the Humanist Association. I respect the views of noble Lords who have spoken about the National Secular Society, but I feel that that society is straining at a gnat and is seeing some tiger or dinosaur stalking the land. What we are actually talking about here is people coming together—I say this to the noble Earl—to conduct public business, sitting down commonly at the start of that business, as we do in your Lordships’ House, and hearing an affirmation from a person leading the prayers with regard to the common purpose of the council. I think back to the prayers that were spoken at our last meeting in which we were asked to respect each other, approach business in a creative fashion, remember that we were in public service and dedicated in the principles of public service. I find nothing exceptionable in that.

Lord Avebury: Is there any reason whatever why those matters should not be dealt with outside the ambit of the official council meeting? Why could they not be covered in a five-minute period before the council meeting starts?

Lord True: They do take place at the start of the meeting. Everybody in a free society can meet whenever they wish, if they wish to have a prayer meeting. I am talking about the opening of a meeting which is intended to conduct public service. It is a common affirmation of principles and it is a moment when we sit together collectively and silently. I personally find nothing offensive in that in any sense. People have an odd idea if they think that council meetings are crowded with people who might be offended by seeing people come in and out. People come in and out all the time, rather as they do during proceedings of your Lordships’ House. There is nothing conspicuous about that.

Of course, we are not elected for our religious beliefs, as the noble Earl said, but we are elected to share a common purpose. Prayers are one of the few moments when those of us who are in the Chamber can be guaranteed to share the principle and spirit of what is being said. I absolutely recoil—

Lord Cashman: Will the noble Lord clarify to the House that I am right in suggesting that he is not implying that those of us who do not involve ourselves in such religions are devoid of those common principles?

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Lord True: No, I am certainly not saying that. However, I would vastly prefer it if the National Secular Society did not go round the country seeking to drive out aspects of faith in public life. I would leave well alone and live and let live. I wish to draw my remarks to a close. It would be a great pity if this Bill were not allowed to proceed. I think it would be a disaster if we voted on this issue. I cannot think of anything more calculated to bring division where there is none than taking to a Division the issue of whether we should or should not have prayers, and having that backed by email campaigns and other campaigns. The whole idea is absurd in my opinion.

Baroness Flather: I take issue with the noble Lord’s remark about bringing division where there is no division. This country is not what it used to be. I first came here in 1947 and I have lived here ever since then. It is changing all the time. Huge change has occurred in each decade. The National Secular Society is giving voice to the opinion held by many people. That society is not run by just three or four people. As I said, I am an atheist but I respect everybody else’s faith. I opt out of the Prayers in the House of Lords. I would prefer not to have to do that and would prefer the Prayers to be more inclusive of atheists. There should be quiet reflection or much more inclusive prayers. It is not a case of what the National Secular Society is advocating; the rest of us have changed.

Lord True: My Lords, I wanted to conclude my remarks but I must respond to those comments. My local authority has, and has had, councillors of all faiths and none, including many atheists. My deputy leader is a strong atheist but is very happy to attend the prayers for the reason that I gave. The campaign run by the National Secular Society is of a very different order from the position mentioned by the noble Baroness. This is a process which brings people together, has long had a place in public service and should continue. I strongly support the Bill and hope that these amendments will be rejected.

Lord Anderson of Swansea (Lab): My Lords, like the right reverend Prelate, I also have a declaration to make. I am a Christian—a very fallible Christian—but I find the Prayers at the start of your Lordships’ business extremely helpful in setting the tone and putting everything in context. The only part of the Prayers with which I have a problem is that concerned with setting aside prejudice. As a rather lapsed politician, I balk at that a little. When I served on a local authority, I also found that the prayers set the tone.

What we are seeing in the amendments, which have clearly been helped by the National Secular Society, is something that I do not accept. Many people here attend these Prayers because of the spirit and principles that come from them, even though they may not be believing Christians or indeed part of any other group. I take issue a little with the number of bodies that the noble Lord has included in the Bill—I think we should have a degree of proportionality—but local authorities should certainly be included. We have here in your Lordships’ House a precedent. I am sure that some of

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those who attended Prayers today do not have a belief but find them helpful in setting the tone for the proceedings which come. But I am confident that even those who were outside and came in later did not feel excluded in any way; nor would those in local authorities or smaller parish councils who stand outside and go in later feel themselves as part of the generality to feel excluded.

It is a part of our tradition that we should cherish. It sets a proper tone and principle. Perhaps we should look again at proportionality, but I—I am sure in common with many Christians and people of other beliefs and non-Christians—find our own service here to be something of value. Perhaps that may be next in line for those who wish to consider excluding from the public space any reference to our Christian traditions. Indeed, I do not find, as my noble friend Lord Cashman said, that Christianity is taking a larger slice, a larger share, of our public space. I find that many Christian traditions are indeed on the defensive. Many Christians are finding it increasingly difficult to express their faith, and there is a multitude of examples of that. Let us return to the status quo ante and recognise the proud traditions—the Christian traditions—of this country, but also embrace new faiths and recognise that many of us find something of immense value here in your Lordships’ House. It is something that those who serve in other councils would find of equal value.

Lord Taverne (LD): My Lords, I want to put the argument in a wider context for a moment. The reason why theocratic states are not democratic is because they have no separation of church and state. The reason why the success of the Muslim Brotherhood led to suppression of democracy is because it did not separate church and state. In the progress of history, the progress of democracy has been linked by the separation of church and state. In Britain, this is not complete but there is a formal continued existence of the role of the Church of England, which is an anomaly. I say that with great respect to the admirable work done by the Bishops in this House, who are very progressive and enlightened in their views. The intrusion of religion into political debate should, as far as possible, be avoided.

This Bill is particularly anomalous at a time when the Church of England is no longer the majority religion. Most people in this country do not go to church and have to deal with a multiplicity of faiths. The Bill is a step in the wrong direction. The influence of politics and religion should be kept apart through the separation of church and state, and the Bill does not do so.

Lord McColl of Dulwich (Con): My Lords, many of your Lordships will remember the late Lord Orr-Ewing. He had a relative in the West Country who was a consultant at the local hospital. He was chairman of its medical executive committee and chairman of the local parish council at the same time. He got a bit tired towards the end of his time and forgot where he was, just for the moment. When opening a meeting of the medical executive committee he thought he was in the parish council meeting, and said: “Well, gentlemen, it is time to open the meeting. Shall I do so with a word

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of prayer?”. The consultants were all rather surprised at this but, to give them their due, they bowed their heads and there was an effective prayer. It turned out to be one of the most peaceful, constructive meetings that they had ever had.

Baroness Perry of Southwark (Con): My Lords, perhaps I may reply briefly to the point that my noble friend Lord Taverne made. It is historically not the case that the progress of democracy has been linked to the separation of church and state. The most egregious examples of the lack of democracy have been where religion or, indeed, its lack has overtaken the state and replaced it. This is what ISIL is trying to do—to replace the state by its religion. The aggressive atheism of the Chinese communist state and the Russian Soviet communist state are two potent examples of how democracy cannot thrive without a decent place for religion within a country.

10.45 am

Lord Hughes of Woodside (Lab): I will not delay the Committee long. For all my life, I have been an avowed atheist. I have no problem with that or with religion. I have no problem with exclusion, except in a narrow sense. On a more trivial matter, one of the big problems in your Lordships’ House is that those of us who wait outside during Prayers cannot get a seat when we come in. One of my suggestions is that we should have a couple of Benches set aside for the atheists, so that we can get a proper seat.

However, on a more serious matter, exclusion takes many forms, sometimes thoughtlessly. It is sometimes deeply wounding. On the day of the Charlie Hebdo assassinations, I received a text message saying that there was to be a minute’s silence before the commencement of business. When I came into the Chamber after Prayers, I was shocked to discover that the minute’s silence had taken place before Prayers, thereby totally excluding people such as me who do not come in for Prayers. I was deeply upset by that, and still am. Those people who preach, from a religious point of view, that they are tolerant and always think of others might think again. Those of us who are atheists have feelings and share values about society.

Lord Mackay of Clashfern (Con): My Lords, it is often the case that the power of religion is sought to be harnessed for a mistaken purpose. We have illustrations of that in our situation today. A particular movement tries to hang on to some religion as its base because it believes that by that method it will increase its power and influence. The proper course for the Bill is for it to proceed, on the basis that there should be a majority ruling in the council. I cannot see, for the life of me, why there should be a special majority giving particular value to those who do not want prayers over those who do. Surely, equality of votes is the right way in which to go forward.

I can speak from personal experience, although I should not say “of course”, because I happen to be a Christian and have sought to be one for a good part of

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my life. Our scriptures tell us that if anyone lacks wisdom, he should ask of God, and God will give him that wisdom. I do not support the Bill on the basis of tradition but strongly support it on the basis that prayer can have a profound effect in this respect: I have to say, even in relation to addressing your Lordships’ House, one has to think about getting help to remove lack of wisdom, which I am particularly conscious of, because we face many difficult problems in this House. Wisdom, such as is prayed for here at the beginning of every session, is a valuable commodity.

It is not so long ago, and I am old enough to remember, when this nation was faced with a terrific disaster when the British Expeditionary Force was trapped just outside Dunkirk. His Majesty King George VI called for the nation to engage in prayer. Whatever noble Lords think about the causal connection, there is no doubt that a wonderful deliverance was afforded to our troops in Dunkirk. The way that they were delivered was nothing short of miraculous. I therefore support this Bill, not because of any tradition or because it has been done before, but because I think councillors, by majority, are entitled to have this privilege if they wish it.

Lord Kilclooney (CB): My Lords, in the most religious part of the United Kingdom, Northern Ireland, we have no established church. Here in England there is the established church, the Church of England. In his speech, the noble Lord, Lord Taverne, said that the Church of England is no longer the greatest church in England. I was looking recently at the wedding statistics in the United Kingdom. When it comes to religious weddings, 75% are still in the Church of England, 11% are in evangelical churches, 10% are in Roman Catholic churches, and 4% are in others. Clearly, although I am not a member of the Church of England, there is no doubt that it is still the choice of the majority of the religious people in England.

Baroness Eaton (Con): My Lords, I am an elected member of a council that does not have prayers or any time for reflection at the beginning of its proceedings and council meetings. I have been a member for rather longer than I dare declare—30 years. In that time there have been some extremely acrimonious and unpleasant incidents. It has not been the happiest and most collegiate of places to work on behalf of the public. I cannot help feeling that if those moments of quiet reflection and prayers had taken place during those years then the business of the council would have been far speedier and certainly would have been better for the public who we served.

I hope that the stimulation this debate may bring may give my council food for thought yet again, and that maybe a democratic decision could be made about reinstating that quiet time at the beginning of proceedings. As we have heard, it does not have to be religious in a particular sense: that council could chose to make it something that reflected the population of that council, or it could be a quiet time for reflection. I think that the Bill, which will put back the status that we assumed prayers had, is a good thing.

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Lord Hardie (CB): My Lords, so far there has been reference to time for prayers. In fact, if one looks at new Section 138A, it is much wider than that. It says:

“The business at a meeting of a local authority in England may include time for … prayers or other religious observance, or … observance connected with a religious or philosophical belief”.

To take up the point that the noble Baroness just made, the time at the beginning of a meeting is not necessarily connected with any particular religion. At the risk of offending the noble Lord, Lord Foulkes, who is not currently in his place, I say that I understand that at the commencement of business in the Scottish Parliament there is time for reflection led by different religions and by none—the Humanist Society has an opportunity as well—and the Presiding Officer decides based on a rotation. What we are talking about here is an opportunity for local authorities to decide by majority—I accept the point from the noble and learned Lord, Lord Mackay of Clashfern, that it should be a simple majority—that, if they wish to do so, it might be helpful to have time for reflection, not necessarily by a representative of the established church, but by anyone whom the council decides on. I commend the practice of the Scottish Parliament: it might even be rotated.

Lord Kennedy of Southwark (Lab): My Lords, I declare an interest as an elected councillor in the London Borough of Lewisham. We do not have prayers at our council meetings. When looking at these amendments today it is worth reminding ourselves of the aim of the Bill—as has been made very clear by a number of noble Lords in their contributions today and in the Second Reading debate.

This is a passive Bill, which requires no one to do anything. It is permissive; it merely gives permission for councillors on parish and town councils and some combined authorities to do what they believed they were able to do in the first place. It brings them into line with the position on higher tiers of local government, namely districts, metropolitan councils, unitary councils, London boroughs and county councils. The Bill is needed because, although the Secretary of State was able, under his powers, to enable these higher tiers of local government to make the decision themselves, his powers did not extend to the lower levels of local government.

I have the greatest respect for all the noble Lords who have put their names to the amendments in this group. On many occasions in your Lordships’ House we have taken the same positions and been in the same Lobby. However, I contend that these amendments are not necessary.

Amendment 1 would remove the whole of the proposed new Section 138A and would effectively remove from the Bill the whole purpose of it being here in the first place. Amendments 2 and 5 would require there to be a two-thirds majority in favour of these proposals and for the decision to be reaffirmed every year at a meeting of the council. In my opinion, that goes too far and is not necessary. If the parish or other council concerned wants to avail itself of these powers, it would have to get agreement. A simple

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majority is perfectly acceptable in that regard. I agree entirely with the comments of the noble and learned Lord, Lord Mackay of Clashfern, in that respect.

Amendment 3 seeks to restrict what is allowed to only silent prayers. Silent prayers may be what the authority wants to do, which is perfectly acceptable—or some other act of worship or philosophical belief. But to restrict that would again undermine the permissive nature of the Bill, in that you can do what you want to do: it is your choice. The Bill is not prescriptive in any respect whatever.

Amendment 4, again, is not necessary. Look at the example here in your Lordships’ House: every day one of the right reverend Prelates—today it was the right reverend Prelate the Bishop of Leicester—starts our proceeding with Prayers. No one is forced to attend and it is the choice of individual Members whether they do. Those who choose not to attend wait outside until they are told by the doorkeepers that Prayers are over, at which point they come in and take their seats. No business is transacted whatever until Members have taken their seats. Do we really believe that that would not happen at meetings of local authorities? I do not accept that, by not participating in prayers, you would not be seen as a full member of the authority, as suggested by some noble Lords. Again, the amendment is not necessary as the Bill is drafted in such a way as to take account of what people themselves want to do. There is no pressure on anyone to do anything at all.

In conclusion, although I would not be affected by this particular group of amendments, I lived and worked for many years in the east Midlands and I attended the remembrance service that the right reverend Prelate the Bishop of Leicester referred to. It is a very moving and respectful event for people of no faith and many faiths.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Lord Ahmad of Wimbledon) (Con): My Lords, I am grateful for this opportunity to discuss both the broad intentions of the Bill—to give authorities the freedom to determine for themselves whether they wish to hold town hall prayers as part of official business—and some of its details, and, in those details, explain why we consider it a gentle and necessary measure.

This morning I woke up, as we all did—that is always an important part of the day. After doing that, I rather hoped that I might have had a bit of a lie-in, which means that I leave the house at about 8 am, rather than 6.30 am or 7 am. Being a father of three, with two children under the age of three—I know that those who are parents will share this experience—I was awoken at 5 am. One milk bottle followed another, after which, what did I do? I prayed, in my own Muslim way, in a moment of prayer and reflection.

I then travelled to the House, as all noble Lords did today, and arrived to be confronted by barriers and what have you. Sadly, there was an incident outside your Lordships’ House this morning. Nevertheless, I then came into your Lordships’ Chamber and prayed. I am grateful, as we all are, to the right reverend Prelate the Bishop of Leicester for leading Prayers this

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morning. We started, as usual, with reflections on our duties, on what our country is about and on why we are here.

11 am

I say to my noble friend Lord Avebury—I hope he knows that I respect him greatly—that I have been at many multifaith ceremonies with him where we have prayed in our own way, and others have prayed in their own way. That is a reflection of what our country is and it is reflected right here in your Lordships’ House. When we say the Lord’s Prayer, I recite the Lord’s Prayer. I am a Muslim by faith and was educated in a Church of England school, and—do you know what?—I do not find any offence in the prayers of other religions. In fact, the reflection of all other faiths and indeed of no faith teaches us to respect each other, and that is vital in our country and society today.

The noble Baroness, Lady Flather, and I share much in common in our thoughts, and indeed I pay tribute to the work that she does. Over the last few weeks we have remembered those who gave their lives in the First World War—people of all faiths and none who came together to stand against tyranny. We have had prayers and reflection, but I can tell your Lordships that when we pray, by whatever mode, I reflect and pray in my own way, as I do in your Lordships’ Chamber. When certain prayers are recited and other noble Lords join their hands in one way, I raise my hands in another—and your Lordships’ House allows me to do just that.

I will to pick up a final point before I turn to the substance of the amendments—and, again, I address my noble friend Lord Avebury. He gave the example of a Muslim councillor in a particular council. I, too, served for 10 years on a local council. I was a cabinet member in a local council in London. Was I ever offended by prayers? On the contrary, I was not. I attended prayers because doing so gives people of faith and perhaps even those of no faith a moment of reflection and inspiration. As my noble friend Lady Eaton said, there is a time for quietness before one gets into the frenzy of the day.

These are important elements of how we define ourselves as a society and what we are, and in bringing together people of all faiths and none to celebrate what our country stands for. Doing that does not exclude anyone. I ask my noble friend Lord Avebury: are we suggesting for a moment that those who do not take part in Prayers at the start of our proceedings are somehow excluded and that their contributions are held in less regard? On the contrary, we are equal Peers of the realm and have the greatest respect for each other. I give way to my noble friend.

Lord Avebury: My Lords, I am sorry to interrupt my noble friend but I would like an answer to the question that I posed to another noble Lord. Why cannot people who believe so strongly that prayers before a meeting can be helpful to them in their deliberations organise themselves separately so that they are not part of the official business but are

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organised by a voluntary group of councillors who, in this respect, would have nothing to do with the official business of the authority?

Lord Ahmad of Wimbledon: My Lords, nothing in the Bill would prevent that. This is about choice at a local level. As we have already heard, there are provisions for local authorities to have prayers or not have them. We have heard from two Members on both sides of the House who are, today, members of local authorities, neither of which has prayers. If a coercive practice were already in place, surely those two Members who have spoken—the noble Lord, Lord Kennedy, and my noble friend Lady Eaton—would have said that their local authority needed to have prayers. Neither has prayers, which again shows the openness of what is being suggested. Indeed, all we are asking for here—and the Government support the Bill—is the opportunity for people to be given a choice. I know that that is not something that my noble friend objects to.

Perhaps I may turn to the amendments. One of the key objectives of the Bill is to give authorities, including, crucially, those authorities that cannot exercise the general power of competence, the freedom to include in their formal business prayers or other religious observance or observance connected with a religious or philosophical belief. I reassure the noble Baroness, Lady Flather, and other noble Lords that, for the purposes of the Bill, religion is not defined; rather, the Bill refers to,

“observance connected with a religious or philosophical belief”,

as other noble Lords have pointed out, and to “religious observance” as well. The definition is wide enough to embrace what might be described as mainstream religions but it also includes those with a sincerely held belief that is not conventional. Therefore, we consider that the Bill is inclusive. We have no desire—nor is it the intention of the Bill—to produce an exhaustive list of what is and is not to be considered a religion or, in this case, prayers.

On a lighter note, when I first joined your Lordships’ House, I came from the private sector. My right honourable friend Eric Pickles has been referred to. When I became a Government Whip, I was told that every Wednesday morning Eric held prayers. I thought, “This is novel. We’re going to turn up and have prayers with Eric”. However, it was a reflection of what we term “certain meetings”, and I think that those are reflections of our traditions. Perhaps the definition of prayer—which is very wide—is, as the noble Baroness suggested, one that allows local authorities to decide, if they so choose, to have a moment of reflection rather than a formal prayer service according to one religion or another.

We consider it right that authorities should have this freedom and right that they should be able to decide for themselves whether to include town hall prayers as part of official business. It is right because, as I have said, we live in a multifaith nation that respects all faiths and those who have none, and it is right because we should provide a local choice and, where a council wishes to hold town hall prayers as part of its official business, it should not be denied

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that freedom. I reassure noble Lords that the Bill does not compel town halls to adopt prayers. Nobody who does not wish to attend prayers as part of official business will be required to do so. Town halls may decide to have no prayers or to have a moment of reflection. That is part of the Bill, and the amendment seeks to remove that granting of freedom.

Amendment 2, coupled with Amendment 5, would introduce two new and, we believe, unnecessary restrictions, as the noble Lord, Lord Kennedy, pointed out, on the decision-making process in town halls. It is unnecessary because there is no need to require a two-thirds majority to enable a local authority to hold town hall prayers. As my noble and learned friend Lord Mackay ably described, this would mean that a minority might vote against prayers but still stop the council holding them as part of its official business. Do we want a minority stopping a majority from taking part in an item of business that nobody is compelled to take part in? That is exactly what the Bill is intended to put a stop to.

Nor is it necessary for a decision to include town hall prayers as part of official business to remain valid for only 12 months. The Government have worked hard to reduce red tape in councils, to remove burdens and to make town hall decision-making more transparent and accountable. This amendment would introduce, into a Bill that is about freedom to choose, a compulsion to revisit, year after year, a decision that has been taken and agreed. Councils are, of course, free to decide one way or the other on whether to include town hall prayers as part of its official business, and they are also free to reconsider their decision, but they should not be compelled to do so every 12 months.

I was interested to see the amendment that seeks to replace the Bill’s—if I may describe it as such—non-definition of town hall prayers with a definition of an act of worship. As I have already said, the Bill is carefully drafted to avoid the definition of prayer, religion or belief. The provision as drafted ensures that town halls are not limited to any particular act of worship or observance. This amendment may be intended to ensure that, through silence, no offence is caused. However, that would go against the Bill’s intent to recognise all faiths, and respect those with none, by compelling those who would otherwise vocalise their observance to remain silent. I worry that the amendment also goes against the transparency and accountability that we have worked so hard to ensure become part of town hall culture. I am also concerned that it seeks to silence those who would wish to make clear their belief.

Another amendment seeks to limit the time that the council may spend on an item of business—in this case, town hall payers or an observance connected with a religious or philosophical belief—to five minutes. I find that somewhat peculiar. I presume it is to ensure that town hall prayers do not take up too much valuable time. I have already mentioned transparency and accountability. We have ensured that the public can report on the proceedings of town hall meetings and I would imagine that the only measure of time deemed to be unreasonable for any item of council business is the length of time that the electorate consider

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unreasonable, no matter what the business. As it is, local councils determine themselves, generally in guidance, how long should be spent on different agenda items.

In conclusion, we should trust local authorities and councillors to serve the interests of the public to whom they are accountable, without the need for any steer about how long they should take over this or that item of business. We should trust councils and the electorate. This Bill is all about choice—the choice of whether to allow or not to allow—and that choice is best made by those who are elected at a local level to serve their local electorate. With these assurances, I again reiterate the Government’s support of this Bill. After we have heard from my noble friend, I hope that the noble Earl will withdraw his amendment.

Lord Cormack: My Lords, I am extremely grateful to my noble friend for his robust and totally convincing defence of a Bill that I had the honour to present to your Lordships’ House a couple of weeks ago. I am very grateful to all those who have taken part in this interesting and stimulating debate over the past hour. Second Reading came at a rather awkward time on a Friday two weeks ago. Most of your Lordships had been exhausted by the overseas aid Bill and, other than myself, there was only one Back-Bench speaker, namely the noble Earl, Lord Clancarty. I thanked him then and I thank him again now.

In effect, we have had a Second Reading debate over the last hour and I make no complaint about that. Amendment 1, moved by the noble Earl, Lord Clancarty, would remove the first part of the Bill and its whole underlying purpose. The noble Earl is rather fortunate that he is in your Lordships’ House and not in another place. I speak as one who, in another place, was a chairman of committees for 15 years and had to decide on amendments with the advice of clerks. In another place, Amendment 1 would have been considered a wrecking amendment and would not have been allowed. But I am glad that it has been allowed and that noble Lords in all parts of the House have had the opportunity to put their points of view.

I do not want to repeat what has been said either by the noble Lord, Lord Kennedy, to whom I am very grateful, or my noble friend the Minister, Lord Ahmad of Wimbledon. I just want to underline the essential purpose of this Bill. It is a wholly permissive Bill. No one is obliged to do anything. If a group of councillors or members of a local authority wish to begin their proceedings with prayers—be they Christian or of any other faith—a moment of reflection, or a thought for the day as happens in the Scottish Parliament, and a majority shares that point of view, that is how the said meeting can begin. If a different point of view is taken, it does not happen. We have heard from the noble Lord, Lord Kennedy, and my noble friend Lady Eaton, that in the authorities on which they serve, prayers or a moment of silent reflection do not begin the day. However, heaving heard what my noble friend Lady Eaton said, clearly it would be a good thing if they did have a moment of silent reflection on her council. This is wholly permissive. It does not dictate anything to anyone.

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I say to my noble friend Lord Avebury, for whom we all have great respect, that this is a gentle measure. It really is. He quoted at some length the aggrieved Muslim councillor on a Tory authority, although he named neither the councillor nor the authority. I do not criticise him for that and I do not doubt for a minute that every word of what he said was entirely true, but it certainly was not typical, as my noble friend Lord Ahmad of Wimbledon made plain in his speech.

11.15 am

One Member of your Lordships’ House would have liked to be here today. My very dear friend, the noble Baroness, Lady Massey of Darwen, is spending some of today, as she spends some of virtually every day, visiting the noble Baroness, Lady Rendell, who has been very ill and to whom I am sure that we all send our warmest regards, whether we can accompany them with prayers or not. The noble Baroness, Lady Massey, had hoped to be here but, as she cannot, she wrote to me. She asked me to say that, as noble Lords know, she is a committed humanist who has spoken of her disquiet about free schools and faith schools. She is of the view that the provisions in this Bill are not of the same order, and that the Bill is about adults making choices about whether or not they wish individually or collectively to spend a short period of contemplation before business. She said that there is no coercion in the Bill and that it applies to belief, such as humanism, as well as to faith. The Bill has her support.

I think that that is a very eloquent plea from a Member of your Lordships’ House who would not go along with many of us who are Christians, Muslims or members of other faiths. I hope that, in the light of what has been said over the last hour and bearing in mind that this is a wholly tolerant Bill which respects democracy, noble Lords who have tabled amendments will not press them to a Division. If they do, I urge your Lordships to vote not content.

I finish with a reference to the amendment which talks about special majorities. That would place the minority in the ascendancy. That, surely, is inimical to the sort of democracy that most of us hold dear. We in this House, appointed as we are, all have an enormous regard for democracy. We say time and time again that we believe in the supremacy of the elected House. If a Bill comes to your Lordships’ House from another place, we do not say, “Did it have a two-thirds majority?”. A majority of one is a majority. I hope that we will treat the authorities—the local, single-purpose and dual-purpose authorities covered by this Bill—around the country with the same degree of tolerance and respect that we treat the Members of another place, which we all acknowledge has supremacy.

I hope the amendment is withdrawn but, if it is not, your Lordships will demonstrate convincingly that they believe that this freedom of choice should be allowed to those who have been elected in whatever capacity to serve their fellow citizens.

The Earl of Clancarty: My Lords, I thank all those who have spoken in this debate and who have made powerful contributions. I am very glad that we have

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had a proper debate on these issues, which contrasts, as the noble Lord, Lord Cormack, has said, with the empty House of two weeks ago. That is a very good thing.

In this debate, there has been quite a lot of talk about the permissiveness of this Bill. Yes, it is a permissive Bill but it is permissive in one direction. People may ask, “Why can’t councillors who don’t want to go into prayers stand outside during prayers?”, as was suggested by he noble Lords, Lord Elton and Lord Kennedy of Southwark, and others. However, that leaves a fundamental question: why should any councillor have to be put in the position of feeling excluded from any part of the official business on the grounds of their beliefs or non-beliefs? The noble Lord, Lord Avebury, asked whether the Localism Act has any powers over council prayer. I am sure that that is questionable. No chances are being taken with the full range of authorities set out in this Bill. Of course, it is the Local Government Act 1972 that is being amended, not the Localism Act.

In answer to the question of the right reverend Prelate the Bishop of Leicester, the relationship between public religion and councils will be dealt with in the second grouping. Council prayers and the religious life of a borough are two quite different matters.

I was disappointed, in particular, with the responses of the Front Benches to Amendments 4 and 5, two reasonable amendments which would improve the Bill. However, there is a sense that there cannot be any budging from how the Bill stands at present, which is of course how it came into this House. I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

Amendments 2 to 5 not moved.

Amendment 6

Moved by Lord Avebury

6: Clause 1, page 1, line 16, leave out from beginning to end of line 7 on page 2

Lord Avebury: My Lords, Amendment 6 would leave out new Section 138B which the Bill proposes to insert into the Local Government Act 1972.

Except for the words “support or facilitate, or”, which Amendment 8 proposes should be left out, this new section duplicates the provisions of Section 111(1) of the Local Government At 1972, which reads, in part, that,

“a local authority shall have the power to do any thing (whether or not involving the expenditure, borrowing or lending of money or the acquisition or disposal of any property or rights) which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”.

No doubt my noble friend can say to the Committee whether the Government disagree with Eric Pickles, who was quoted by the New Statesman as claiming that under the Localism Act, which came into force in February 2012, after the Bideford ruling, councils have a general power of competence. He said:

“Logically this includes ability to pray before meetings”.

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I would be grateful for an answer to that question and to the others that I posed to my noble friend during the first discussion. I did not expect him to have all the answers available off the cuff today, but it would be useful if he could write to me at some point after the conclusion of these proceedings.

There is enough legislation generated in this place already without legislating to empower local authorities to do what they are already able to do. We understand, however, that my noble friend believes that the High Court judgment in the Bideford case could mean that no event that has any religious element in it is permissible and would therefore be open to challenge. In fact the judgment was limited specifically to the saying of prayers as part of the formal meeting of a council and did not extend to any other part of its activities. Here again, assuming that my noble friend has taken advice, could he place a copy of counsel’s opinion in the Library of the House?

In the Bideford case, the judge analysed the provisions of Section 111 very thoroughly, saying that the council did not require members to attend prayers uniquely among all other matters on the agenda of their meetings. If it was necessary to grant this dispensation, prayers could not be regarded as conducive to the transaction of business or to the exercise of any functions. At paragraph 25 the judgment reads:

“There is a contradiction at the heart of the Council’s position. It has made the prayers a part of the formal business of the Council, yet it says that Councillors, summoned to its meetings, are not obliged to be present for this incident to the transaction of business nor to participate in it. I do not think that what falls within the scope of section 111, as an incident to the transaction of the business of the meeting, can then be regarded as such that attendance for it is unnecessary or optional, in distinction from all other business. In effect it is treated as being outside the scope of the meeting”.

This is the key to the sensible solution of a dispute that we are having with my noble friend. If prayers were not part of the formal meeting, but were held separately under voluntary arrangements, there could be no possible objection to them. Every faith group represented on the council is fully entitled to hold prayers or other religious observances as a group if it considers it appropriate. It is wholly unjust for those on my noble friend’s side of the argument to say that we are trying to restrict religious freedom.

The ruling could not, by the greatest stretch of the imagination, apply to events outside the council chamber and that applies not only to private meetings for prayer but to voluntary attendance at remembrance or other religious services, which are not remotely controversial. They occur all over the country without any problem or challenge. To put it another way, new Section 138B, which Amendment 6 proposes to leave out, is based almost entirely on an implausible hypothesis.

That leaves only Amendments 7 and 8 in this group to be mentioned. Amendment 7 would prevent the authorities covered by the Bill from supporting, and Amendment 8 would prevent them from supporting or facilitating, religious events. Local government is funded by a society that is, however much the promoter of the Bill may regret it, increasingly religiously diverse and non-religious. Indeed, in many localities, the non-religious may themselves already be in a majority.

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Each authority’s purpose is, or should be, to serve all equally, regardless of religion and belief, and its functions are not of a religious nature.

The authority’s funds, which come from the council tax and national taxation of people of all faiths and no faith, should therefore not be expended to support or facilitate events, or elements thereof, which are of a religious or belief nature. Consider how the corrupt former mayor of Tower Hamlets, condemned by Mr Pickles as a “medieval monarch” who had “misused” his “unchecked” personal power to favour ethnic and political allies, might have relished the use of these powers. They would not only have caused people to pay for events to which many were opposed, but they could be used by unscrupulous politicians to buy the loyalty of particular religious groups or to favour the groups to which they belonged. It would be helpful to know whether my noble friend believes that the law already allows local authorities to “support” or “facilitate”, as in this Bill, under the Local Government Act or otherwise. If it does, there is no need for it to be part of this Bill. If not, it represents mission creep—literally in this case—which has not been acknowledged. Either way, I am unhappy that the power is there and I hope that noble Lords will agree with me.

Please note that these amendments do not leave out “make arrangements to be represented at”, although, on reflection, perhaps we should have sought to leave out words that are obviously covered already because the Local Government Act allows for such representation at other events. The rest of the amendments in this group are consequential. I beg to move.

The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab): My Lords, I must advise the Committee that if this amendment is agreed to, I shall not be able to call Amendments 7 or 8 for reasons of pre-emption.

The Earl of Clancarty: My Lords, I have little against the contents of proposed new Section 138B. I think I am probably with the majority of the country who would like to see council prayers dropped but would defend a council having an involvement in religion as a significant aspect, if one aspect, of the life of the borough.

At Second Reading, the noble Lord, Lord Kennedy of Southwark, mentioned Lewisham Council’s involvement in acts of remembrance and in Holocaust Memorial Day. Of course, one can think of many other examples of events of a religious or part religious nature. I have no problems with any of this. As I say, the great majority of the country would not object to—indeed, might insist on—such involvement. None of this is at risk.

My quibble is with the word “support”, which over eggs it. Impartiality is the key. My concern is that this proposed new section is not necessary. There is something slightly peculiar about having this alongside council prayers in the same Bill. They are entirely different matters, and I think that the public can make that distinction.

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11.30 am

Lord Cashman: My Lords, I rise to support the noble Lord, Lord Avebury, and I will not repeat the evidence that he has put before the Committee. It has been argued by DCLG that, left unchallenged, the High Court ruling would prevent local councillors from, for instance, laying a wreath at a Remembrance Sunday event. At Second Reading, the noble Lord, Lord Cormack, even suggested that the Bill was necessary to allow councils to close roads so that people attending such ceremonies could do so safely. The High Court ruling simply clarified that local authorities have no power to hold prayers as part of their formal proceedings or to summon councillors to such a meeting and therefore Section 111(1) of the Local Government Act 1972 would apply. It states:

“Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have power to do any thing … which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions”.

I therefore support the amendment.

Lord True: My Lords, we have heard from noble Lords who have spoken so far that they believe that it is perfectly lawful for what is proposed in the amendment to take place. On the other hand, we have heard that people would like to see the legal advice. I have not heard any objection to the activities that take place, which in general are supportive of the community life of all religious groups and, indeed, of those of no religious faith. If there is a shred of doubt in the law that these proceedings should be able to go ahead, given that there is support in principle even from those who have spoken from a different standpoint from mine, it would be highly sensible to make that clear beyond doubt in this statute. I hope, therefore, that the wording will remain in the Bill.

Lord Kennedy of Southwark: My Lords, like the previous group of amendments, I do not think that any of the amendments in this group would improve the Bill. There is a possibility that they would make things very confused and potentially unworkable. That is not a good way to make legislation. As I said before, the Bill mostly affects lower tiers of local government and some combined authorities, and it is permissive in nature. Amendment 6 would remove the power to support, facilitate or be represented at a number of events.

As the noble Earl, Lord Clancarty, said, at Second Reading I told noble Lords that while we do not hold prayers at council meetings, we do observe Holocaust Memorial Day. At our last meeting, which was close to the day, we invited the local rabbi to address the council meeting. He spoke to us and then led us in a short ceremony, which was very moving and was welcomed by everyone. As a council, obviously we support Remembrance Sunday. We have two prominent war memorials in the borough. Our elected mayor attends a ceremony at one and the chair of the council attends the other, while other members of the council attend both. The services are both led by local Anglican

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vicars and people of all faiths and no faith attend those events. This amendment could be confusing for them.

As I have said, I lived in the east Midlands for many years and I often attended the Diwali celebrations held there, along with members of the local council. I now regularly attend the Diwali celebrations which are held in Southwark with my good friend the leader of Southwark Council, Councillor Peter John. As I look at the Bill, those events would potentially be put at risk because the council would be participating in a religious event. I do not think that these amendments would help us at all and I hope that they will be withdrawn.

Baroness Flather: My Lords, we have heard how councillors go to functions such as celebrations of Diwali and Eid, which are organised by other faiths, and that is wonderful, but they do not have anything to do with the council. It is not the council that is facilitating such gatherings. It is not the council saying, “We will help you to organise your Diwali function”. That needs to be borne in mind. Facilitating or supporting religious functions usually means facilitating and supporting Christian festivals, not others. If that could be included, I would be much happier.

Lord Ahmad of Wimbledon: My Lords, again I thank noble Lords for our debate and I want to clarify again the Government’s support for the Bill as it stands. Just on the final point made by the noble Baroness, Lady Flather, councils up and down the country provide great examples of supporting all faiths and none, and indeed of supporting faith festivals. That support is not only right, it is also welcome and should be encouraged. Down the road from me we have Tooting in the London Borough of Wandsworth, which some noble Lords may know well. Quite often, you will see celebrations and lights going on for Diwali or for Eid, and for other festivals of every religion, including Christmas. In the multifaith society in which we live, it is right that all of these are celebrated and respected. People of all faiths and none come together for these religious festivals. Indeed, the noble Baroness probably knows better than most Members of your Lordships’ House how they can bring communities together.

Baroness Flather: Very briefly, I have seen these festivals take place and I have attended them, but I am trying to point out that they are not supported by councils as such. They do not receive the council’s formal support and facilitation, nor are they given any help with money and so on.

Lord Ahmad of Wimbledon: It is not often that I beg to disagree with the noble Baroness, but in many cases councils support the lights being put up and the closure of streets to allow them to be put up. We could take this down many paths, but I am sure that when the noble Baroness attends these events, she brings to them her glitter, glamour and expertise and that her presence is always most welcome.

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Moving on to the specific amendments, let me be clear that, as I said in my earlier remarks, faith is part of what defines our nation today. Belief plays a part in all our communities. Respect for faith and belief and for those of all beliefs other than our own goes hand in hand with respect for those of no faith. That is the cornerstone of what defines the British character. Belief and faith in this nation are happily not locked behind the walls of churches, temples, mosques, gurdwaras or any other places of worship, and I celebrate that, as I am sure do all noble Lords. Faith is celebrated in our high streets and through the observance of prayers every day in this House, as several noble Lords pointed out in the previous group.

Faith extends into the fabric of our government as well. We support projects that are run by faith groups in our communities. The Near Neighbours programme is an excellent example of that. I can give a practical example of how it is not restrictive. The Near Neighbours programme comes under the auspices of the Church of England, but an excellent example can be found in Leicester where a Near Neighbours project celebrated Mitzvah Day, which is a Jewish festival. I can tell noble Lords that the director of that centre in Leicester is a Muslim. That is what defines our country: it is about bringing communities together, not dividing them. This is a working example of how it happens in practice.

It is right that authorities should be able to support, facilitate or be represented at religious events and events connected with a belief. It is right that, at services held on Remembrance Sunday throughout the nation, elected representatives should be there. It is right that if a council needs to close a road to ensure that such a service can take place safely, it can do so without challenge; it does not have the power to do so because it is a religious event. The same goes for scout parades and other ceremonies that mix a religious element with civic pride and community spirit. These are all examples of councils’ proactive support, and it is right that they should continue. We should be able to trust our councils and councillors to exercise their powers appropriately when supporting or facilitating such events, and we should trust the electorate to hold their councils to account on such decisions.

Amendments 6, 7 and 8 would remove the second fundamental purpose of the Bill and send a somewhat concerning message about the restrictions that might be placed on the freedom of councils to ensure properly and safely that communities are able to celebrate not just behind the walls of places of worship, but as communities within their communities and serving their communities.

Amendments 9 to 19 appear to seek to restrict the authorities that the Bill may extend to. My response to my noble friend Lord Avebury is a simple one: let those authorities and organisations decide for themselves. It is all about having a choice over whether they wish to take advantage of the freedoms that the Bill offers. There is no compulsion on them to do so and no requirement.

I reiterate that the Bill is about freedom and choice. To deny local councils that freedom to make that choice would be wrong. With those assurances, I hope that, after we have heard from my noble friend, the noble Lord will be minded to withdraw his amendment.

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Lord Cormack: My Lords, first, I thank the noble Earl, Lord Clancarty, for withdrawing his amendment in the previous group and for recognising that, at this stage in the Parliament, this Bill either goes on to the statute book as it is or it does not go on to it and that it is within your Lordships’ power to determine what happens to it. However, I hope that, in determining that, your Lordships will bear in mind that the Bill came to us from another place, having been piloted through the Commons by Jake Berry and without having caused Divisions in the other place.

As for these amendments, I just briefly reflect that I am fortunate enough to live in the great cathedral city of Lincoln. Even as I speak, people will be assembling in the cathedral—I would have been among them had we not been sitting today—for a special service of remembrance for those who gave their lives or suffered terrible injury in Afghanistan, very similar to the one that has just begun in St Paul’s Cathedral in the great city of London. We have many such services in Lincoln during the year, one of the most moving of which is always the service to commemorate Battle of Britain Day. In the Second World War, Lincolnshire was referred to as the airfield county, and countless young men flew from Lincolnshire airfields, either during the Battle of Britain or for Bomber Command, who never came back. Whenever we have these services, the local authorities—the city council, the county council and various district councils—are represented and roads are closed.

The clause that we are currently concerned with is about putting beyond doubt the freedom of any local authority—if it so chooses, to repeat the words I used when I responded to the earlier group of amendments—to ensure such events can take place. It can facilitate—not a word I particularly like—give its approval to, support and take part in them, but it does not have to do so. The important point of this Bill is that it places no obligation on anybody or any authority to do anything. It merely gives them the freedom. I am grateful to those who have supported the Bill.

Lord Cashman: I just want to make something absolutely clear for the Committee. The noble Lord, quite rightly, paid tribute to the acts of remembrance going on today in relation to Afghanistan. I would just place on record that such remembrances, principles and acts of commitment are not the sole domain of people with religious belief or people of faith—they are common to all of us. I know the noble Lord will agree with that but I did not want anyone to be in any doubt whatever about the sharing of common principles.

Lord Cormack: My Lords, I do not think that anything I or any other noble Lord has said in this debate, or on any other occasion, has thrown that into doubt. Of course there are many brave atheists who have gone to their deaths in the service of their country. Countless Hindus fought in both worlod wars, as did many Muslims and, of course, many Christians—those of all faiths and of none. The Bill does not seek to suggest anything to the contrary. All it seeks to do is to put certain things beyond doubt and make it entirely clear that local authorities and other authorities covered

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by the Bill can, if they wish, hold prayers in their meetings—we have dealt with that—or support, attend or, to use that unfortunate word, facilitate such events. That is all it says.

I will of course write to my noble friend Lord Avebury, as he requested, and try to pick up any points that may not have been covered in the debate, but I ask the following of him, as a man who was once the most famous Liberal in our country—I remember the Orpington by-election, as will many others—who entered the other place with an extraordinary reputation, which he sustained, and who has made innumerable contributions from a liberal standpoint in your Lordships’ House. I merely look at him and ask him to exercise his liberal instincts today and to allow to others the freedoms that he has so skilfully enjoyed and legitimately exploited on many occasions over the years. Would he be kind enough to consider withdrawing his amendment?

11.45 am

Lord Avebury: My Lords, I am most grateful to my noble friend for the unexpected compliments and for the courteous way in which he has conducted these proceedings. However, as for the accusation that we are, in some way, trying to prevent people attending or participating in great events of the nation such as the remembrance of the victims of the First World War or of those who died in Afghanistan, I have to say that it is not worthy of the noble Lord to suggest that we are in any way trying to obstruct or frustrate the attendance of people from councils at those events. There is nothing whatever in the amendments that could have led to that conclusion.

I asked my noble friend whether Section 111(1) of the Local Government Act already gave permission for the local authorities covered by the Bill to engage in those events. If that is so, then most of new Section 138B, which we are talking about currently, is not necessary. We always say that we discourage legislation that duplicates something that is already on the statute book. Constantly, when people try to make amendments to legislation, Governments tell them, “You should not do this, because Section so-and-so, which covers the eventuality, is already on the statute book”. I asked whether my noble friend could tell us whether Section 111(1) of the Local Government Act already covers the events referred to in new Section 138B.

Lord Cormack: As I tried to say a few minutes ago, this Bill seeks to put matters beyond doubt. Until the Bone case—with which my noble friend is very familiar—came before the High Court, people thought that what had gone on for generations was entirely permissible. The High Court judgment said that Mr Bone had not been discriminated against and had not been unfairly treated. However, it also said that the Local Government Act in question did not allow prayers. The first part of the Bill dealt with that issue. We are seeking to put these matters beyond doubt, so that in future no Mr Bone can seek to take an authority to court if it closes a road on Remembrance Sunday or on any other day of the year such as today, when these services are taking place, not only in London and Lincoln but

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in other parts of the country too. It is merely to ensure that this is beyond doubt. It is a belt-and-braces approach. I know that my noble friend—and I am pleased to call him that—has over the years very often been anxious to put beyond doubt certain things in which he has firmly believed. That is all we are seeking to do.

Lord Avebury: With respect to my noble friend, I did not think it was beyond doubt. I thought Section 111(1) did cover it; nor has the Bideford judgment anything to do with the matters we are currently discussing, because the conclusion of the judge when summing up was:

“'The saying of prayers as part of the formal meeting of a council is not lawful under section 111 of the Local Government Act 1972”.

But we have got beyond that now. We are not talking about prayers; we are talking about the attendance, support or facilitating of events of a religious nature by members of a local authority.

I do not know how many times I have to repeat this but no one who supports the Bill has the slightest objection to the national events that I was talking about earlier. We would not dream of trying to frustrate local authorities’ decisions to participate in those important national events. What we are talking about are the words “support or facilitate”, which do not occur in Section 111(1) of the Local Government Act. I am saying that it carries enormous dangers if you give people those powers. I refer to the case of the former mayor of Tower Hamlets and the machinations that he was engaged in in generating support from religious communities within Tower Hamlets. There is a serious point here that if we allow local authorities to support or facilitate events that are of a religious character, we are opening a Pandora’s box, which we may regret later on.

I sense that the House wants this discussion to come to an end. I conclude that because the Bill had the support of the other place and because it is not our position to frustrate the will of the other place, which we would do if we pressed this amendment to a Division, I beg leave to withdraw it.

Amendment 6 withdrawn.

Amendments 7 and 8 not moved.

Clause 1 agreed.

Clause 2: Powers of other local authorities

Amendments 9 to 19 not moved.

Clause 2 agreed.

Clause 3 agreed.

House resumed.

Bill reported without amendment.

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Health and Social Care (Safety and Quality) Bill


11.53 am

Clause 1: Harm-free care

Amendment 1

Moved by Lord Turnberg

1: Clause 1, page 1, line 7, leave out from “that” to “avoidable” in line 8 and insert “service providers carrying out regulated activities take steps to reduce”

Lord Turnberg (Lab): My Lords, I am grateful to the noble Lord, Lord Ribeiro, and to the Minister and his team for spending some time last week discussing the Bill with us. That was helpful but I fear that I am still very concerned about the potential impact of the Bill in its current form.

I say at the outset that I will not be arguing against the case that we should be doing everything we possibly can to avoid harming patients; nor am I arguing against the underlying purpose of the Bill, which I am convinced is meant with the best possible motives in mind. But we know that even in the best hospitals occasional mistakes will be made and someone will be harmed, and the question we have to face is whether legislating for mistakes never to be made is the best way of achieving that purpose.

During our discussions it was helpful to hear that the new regulations will apply only to institutions, such as hospital trusts and care homes, and not to individual healthcare workers—nurses, doctors and other carers. They, as we know, are regulated by other bodies and held to account by them if they cause harm. But it is not at all clear that that is the intention of the Bill as it is currently written. Indeed, it was pretty obvious at Second Reading that much of the debate focused on individual surgeons who operated on the wrong leg—regrettable and devastating though that may be—but now we are told that that is not what the Bill is about. We even heard from one noble Lord details about which hernia he was having operated on and you cannot get much more personal than that.

We now know that the Bill is about ensuring that all the precautions necessary to avoid harm are taken by institutions. It is obvious that that is where we should be aiming our efforts to try to avoid those terrible stories that we hear about of neglect and abuse, particularly of elderly people, in hospitals and care homes. These are far too common for comfort. They are largely due to institutional failings and that is where we need to aim the Bill. But the problem is that it is not clear in the wording of the Bill that it applies to institutions and not individual care workers. I fear it is not much clearer in the proposed regulations, which I have now had a chance to look at.

My anxieties are increased, rather than the reverse, when I read those regulations, where there is much reference to individual persons providing the care—for example,

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“the things which a registered person must do to comply”;

there is then a long list of things they must do “to mitigate such risks”. The regulations also,

“make provision as to the persons who are fit to carry on a regulated activity”.

I have been told that “a registered person” refers to a trust manager or chief executive, not someone registered with the GMC, for example. But I fear if that is the case the room for misinterpretation is too great.

My first amendment tries to make it absolutely clear that the Secretary of State’s duty applies to institutional service providers as a whole, not individual healthcare workers. I have also included in the amendment the proposal that the responsibility of institutions is not to produce zero harm but to aim at a continuing reduction in harm over time. That at least is in the realm of the possible, which is what legislation should be about. My second amendment is designed to ensure that institutions take this responsibility very seriously by regularly monitoring the effectiveness of the systems of harm reduction that they have put in place.

There is yet another problem with the current wording of the Bill, and that is the possibility of the harm that the Bill itself could cause if it is not amended. Let us suppose that we can be convinced by the noble Earl that the Secretary of State’s duty applies to institutions, not individuals. We can then easily imagine that fearful hospital trusts, with the Secretary of State and CQC breathing down their necks and trying to ensure that absolutely no avoidable harm is ever inflicted on a patient, will place a severe burden on their doctors and nurses. They in turn will be very cautious indeed about any medical innovation they might consider offering to their patients. The whole atmosphere that we are desperate to introduce into the NHS of an innovative service keen to take up new ideas and treatments will be frustrated.

Furthermore, it is not too difficult to imagine that a culture and oppression could follow—I cannot believe that that is the intention of the noble Lord, Lord Ribeiro, or of the Minister. We need a culture of openness and willingness to admit mistakes and those errors of judgment that are bound to be made, so that lessons can be learnt. I am afraid that errors are inevitable even in the most safety-aware trusts and care homes, yet fearful employees may feel that they are better off covering up rather than admitting to their mistakes.


I am strongly of the view that it is only by proper training and education, and, even more importantly, by effective leadership at the institutional level that we can establish the safe practices that we aspire to. We know that that at least works, and it is the best way in which we can expect to see the progressive reduction in harm to patients that we all want. That is the purpose behind my Amendment 3, where I propose that it is the duty of service providers to ensure that their staff are properly trained and supervised in their efforts to reduce harm to patients.

I recognise that we have a very tight schedule for the Bill and that, if we push the amendments, there is a danger that the Bill will be lost—I understand that

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there will be little time for the other place to look at any amendments. That would be a shame, not least because I am very much in favour of other provisions in the Bill, so I have a dilemma, but I think that the Bill as it stands is not really fit for purpose. I will be interested in what response the Minister can give us, and in whether he is willing to clarify and amend the regulations and guidance notes to reflect the concerns that I have raised today and in the amendments. I know that the regulations and guidance notes have only just been written and that it may pose a problem for parliamentary draftsmen to have to redraft them but, having read the detailed guidance notes, I fear that they are not only draconian but misguided in places and should at least be put out for consultation.

We are today in an even more difficult position than the draftsmen because the parliamentary timetable is beyond our control. I look forward to the Minister’s response and I beg to move.

Baroness Finlay of Llandaff (CB): My Lords, I also have an amendment in this group. My intention is very similar to that of the noble Lord, Lord Turnberg, who has just spoken. I, too, state categorically that I do not believe that harming patients is acceptable. Pressure sores, neglect of patients, hospital-acquired infections and so on are not acceptable, and we should aspire to eliminate avoidable harm from our systems in healthcare. However, when we legislate, we must be careful that our wording is accurate, clear and does not raise the probability of unintended consequences. It is that which concerns me, hence my amendment.

The Berwick advisory group has advised that the correct goal is the continual reduction of harm, because patient safety experts report that zero harm is impossible, that cultures must be addressed to reduce harm, and that that is where resources should be focused. We must ensure that open, honest and transparent working cultures exist across the NHS, and that the clause does not inadvertently inhibit innovation, which often involves taking controlled risks, and does not stifle open discussion and reporting of errors. We must not legislate in a way that seeks blame and reverses our move towards such an open culture.

That is why I have suggested that the clause be retitled “Reducing harm in care”. The amendment would amend the National Health Services Act 2006 to include among the Secretary of State duties,

“the continuous reduction of avoidable harm”.

Given the time and progress of the Bill, can the Minister confirm that any subsequent regulations will be consulted on and be subject to affirmative resolution?

Can the Minister confirm that the duty in Clause 1 applies to organisations overall rather than to an individual practitioner, who may find himself or herself working in an uphill struggle to decrease harm in a poorly run organisation? As the noble Lord, Lord Turnberg, outlined, my concern is that such an individual could be scapegoated and hung out to dry by such an organisation unless it is absolutely clear that the onus of responsibility in Clause 1 rests on the provider organisation to have appropriate infrastructure in place to reduce avoidable harm. Can the Minister confirm

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that it is all organisations with which the NHS contracts in any form that must have a harm reduction policy, including private and voluntary sector care organisations, and that this must go across all health and social care?

Harm reduction must recognise the need to take risks at times with the intention of achieving a good outcome. Paralysis caused by risk-averse cultures is beginning to pose a great risk to patients, because not acting or taking the guidance or protocol-type approaches to care can sometimes pose a greater risk to an individual patient with complex individual needs than acting in a way that is outside what might be considered to be the normal confines of activity.

Lord Warner (Lab): My Lords, I support all four amendments in this group, but I added my name to those of my noble friend Lord Turnberg. I speak from the perspective of someone who nearly 12 years ago as a Minister approved a new system to improve patient safety by reporting serious incidents. We did not try at that point to go for unrealistic approaches to improving safety in the NHS. That was not because we were spineless; it was because we needed to get people behind the agenda and bring out into the open serious instances of the poor practice that was going on and jeopardising the safety of patients. I do not think that Clause 1 meets that test. It is likely either to produce excessive caution or simply to drive some of the poor practice underground.

I support every word that my noble friend said and very much of what the noble Baroness, Lady Finlay, said, so I will not repeat them, but I want to draw attention to the briefing that we have all had from three significant organisations: NHS Providers, the Health Foundation and the BMA. I do not always stand up and advocate the policies of the BMA in a number of areas, but in this area it is absolutely right.

I draw attention to what those organisations say in some of that briefing—I shall not read it all out. The Health Foundation makes it clear that introducing a duty such as that in Clause 1 would go against the evidence of what is possible in delivering safe health and care services. It states that the NHS has already demonstrated considerable progress towards building a genuine safety culture and that it is concerned that the message sent to NHS staff through the wording of the Bill may hinder further progress on this. It draws out in a summary of its concerns three very simple points, which might be a consequence of passing the Bill as it stands. First, patient safety experts tell it that causing no avoidable harm is impossible; secondly, legislation is not a solution for cultural problems; and, thirdly, a duty of no avoidable harm will divert further resources from what we know improves safety. My noble friend Lord Turnberg alluded to shifting priorities of what organisations and staff do in a way that is not always helpful to patients.

NHS Providers said very similar things but added something important. It said that should the Bill pass into law, further regulations may be laid by a new Government who have not engaged or given assurances in this area. It urges amendment to ensure that any regulations are fully consulted on and passed by affirmative resolution.

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This is an extraordinary point in the electoral cycle to bring forward a provision of this seriousness in the form of Clause 1. The Government have to think again; they should consider whether they really want to be involved with a Bill containing a provision of this kind. It is full of possibilities for unintended consequences; potentially it could do harm to patients. I do not doubt the good intentions of the people behind the Bill and I do not doubt that they will be pretty grumpy about some of us drawing attention to our concerns. This has become the Government’s Bill—let us not mince our words. It may have started off and still nominally be a Private Member’s Bill, but the Government have put a lot of effort into it, as the sheer number of civil servants standing by to help shows. This is, to all intents and purposes, a government Bill. If the Government really want this legislation in this Parliament, they have to consider doing much more than they are currently providing for to meet the concerns expressed not just by Members of this House but by people whose opinions we all respect. With all due respect to my noble friend Lord Turnberg, the easiest way to meet many of those concerns would be to accept the amendment of the noble Baroness, Lady Finlay. The Department of Health needs to consider whether this would be the wisest thing to do.

Baroness Masham of Ilton (CB): I agree that there should be a culture of openness, honesty and transparency. When things go wrong, most people say, “I don’t want this to happen to anyone else”. There should be lessons learnt from mistakes, not cover-ups. This should be made as clear as possible.

Lord Hunt of Kings Heath (Lab): My Lords, as noble Lords know, the Opposition support the Bill. However, issues have been raised which I hope the noble Earl, Lord Howe, will help to clarify.

I should like to pick up my noble friend’s point about whether this issue is raised at institutional or individual level. It looks as though the Bill focuses on individuals. Will the noble Earl confirm that it is his view that responsibility ultimately lies with the corporate boards which are responsible for the activities taking place in the National Health Service? If that is so, why does the Bill not list those bodies which it covers so that it would be clear who should take corporate responsibility?

Secondly, I take the noble Earl back to the Statement he made last week about Morecambe Bay. It was very telling when he talked about the concerns raised by Dr Bill Kirkup about the lack of a culture of openness and transparency. He said that,

“this report makes clear that there is a long way to go. It seems medical notes were destroyed and mistakes covered up at Morecambe Bay, quite possibly because of a defensive culture where the individuals involved thought they would lose their jobs if they were discovered to have been responsible for a death. However, within sensible professional boundaries, no one should lose their job for an honest mistake made with the best of intentions. The only cardinal offence is not to report that mistake openly so that the correct lessons can be learnt”.—[

Official Report,

3/3/15; col. 160.]

Will the noble Earl say very clearly that that point, which I agree with, is not in conflict with the Bill, and in particular with Clause 1? It is very important—the

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last thing we want to do is discourage people from being open about mistakes. We do not want that to be an unintended consequence of the Bill.

12.15 pm

The noble Earl sent me a very helpful letter after Committee because I had raised the point that every NHS body in the country reports annually hundreds of incidents of mishap to patients. I want to be clear on whether, because of that and the provisions of Clause 1 in particular, it would be possible to say, once the Bill is enacted, that every NHS hospital would be in breach of the duty in Clause 1. He said in his letter that,

“harm will only be ‘avoidable harm’ if it cannot reasonably be avoided … providers will be required to take all reasonable steps to make sure that the care they deliver is provided in a safe way in order to comply with the regulations. It is also a defence to criminal proceedings brought for a failure by a provider to provide care in a safe way to show they took all reasonable steps and exercised all due diligence to prevent the breach occurring”.

The noble Earl went on to give a very helpful example. He said that,

“in a case where an individual doctor makes a prescribing error that results in a reportable patient safety incident or near miss, if the provider had taken reasonable steps to prevent such an error (through its medicines management arrangements, training, supervision and so on) then it would not constitute a breach of the regulation”.

I should be grateful if the noble Earl could clarify from the Dispatch Box whether that is the correct assessment. Again, it would be very useful to our understanding of how the Bill’s procedures will be implemented.

The noble Lord, Lord Ribeiro, will know of the WHO checklist, which is meant to be gone through by surgical teams before they start a surgical session. It is known that virtually no organisation in the UK reaches 100% application of that checklist. It is also known that some consultant surgeons refuse to take part or show clearly by their attitude during the check that they do not agree with the practice. I would like to know who is responsible in that context. If the noble Earl says it is the organisations, that would suggest that they are in breach if they do not take disciplinary action against consultants who do not engage enthusiastically with the WHO checklist. I know that it is difficult to answer specific examples, but it would get to the heart of some of the issues people have with the current definitions in the Bill.

This is a very important Bill that is clearly aimed in the right direction. We are all committed to reducing harm, and avoidable harm, in the health service, but it is important to understand where, exactly, responsibility lies.

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, I shall first address a concern that several noble Lords have flagged up most prominently: that the regulations are not sufficiently clear that the duties that we are talking about here are duties on providers rather than individuals. The regulations apply to registered persons. Schedule 1 to the Interpretation Act 1978 makes it clear that in legislation “person” includes not only natural persons

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but legal persons, such as companies. Under the Health and Social Care Act 2008, the registered persons are providers, not individual members of staff.

The noble Lord, Lord Hunt, asked why the clause does not list the bodies covered by the Bill. The clause amends Section 20 of the Health and Social Care Act 2008. It is the 2008 Act which sets out who the regulations apply to. They apply to registered persons who, under the Act, are the providers, not individual staff, as I said. He also asked whether almost all providers would be likely to be in breach of the regulations for one reason or another. The clause amends the Secretary of State’s regulation-making powers. It would not by itself impose requirements on providers. Those requirements will be as laid down in the fundamental standards regulations, to which I shall come in a moment. On the specific example that the noble Lord gave, where a surgeon did not engage meaningfully with the WHO checklist prior to an operation, my answer is that that would be a disciplinary issue for the employer and/or the professional regulator, if it became known.

Lord Hunt of Kings Heath: That is an extremely helpful answer, but will it be made absolutely clear to employers in the guidelines to be issued alongside the regulations that they have not only a right to take disciplinary action but a duty to do so? If that is set from the centre, that will give a lot of authority to boards, which they sometimes feel that they do not have at the moment.

Earl Howe: That is a very important point, which I shall be happy to take away.

Amendment 1, tabled by the noble Lords, Lord Turnberg and Lord Warner, would replace the reference to “no avoidable harm” with “take steps to reduce” avoidable harm. I accept that in some settings regulated by the CQC, including the NHS, that phrase may better reflect the scale of what can be achieved. However, regulation by the CQC is not just about the NHS. In the case of some health and adult social care services, I believe that it is reasonable to strive to eradicate all avoidable harm. It is for that reason that I prefer the current wording. Yes, it is more ambitious, but its ambition contains an incentive to strive towards a continuous reduction of avoidable harm across all settings regulated by the CQC.

The amendment would also result in requirements on providers to monitor the steps they take to reduce avoidable harm and to train staff in the reduction of avoidable harm. That is clearly desirable, but I must question whether it needs to be a duty set out in primary legislation. The training of staff in reducing avoidable harm is important, and Section 20(3)(d) of the Health and Social Care Act 2008 already expressly provides for regulations to include requirements on the training of staff.

The fundamental standards regulations, to which I referred a minute ago, which were passed by this House in November and come into force in April, already meet the test of the Bill, and no change to

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regulations is required. The fundamental standards require that care and treatment is provided in a safe way for service users. They give the CQC power to take action against providers where a failure to take steps to provide care in a safe way results in avoidable harm.

The regulations are breached not whenever avoidable harm occurs, but where there has been a significant failure effectively to manage the risks of harm. They are clear that that involves assessing the risks and taking steps to mitigate them. They ensure that staff have the right skills and qualifications, that premises and equipment are safe and that medicines are properly managed. They also require providers to have systems in place to assess, monitor and improve the quality and safety of services.

Noble Lords have cautioned that the clause might lead to staff to take a risk-averse approach. The noble Lord, Lord Hunt, expressed the concern that it could encourage staff to lose sight of the patient and instead focus on covering up mistakes. I firmly believe that the reverse is the case. What it does is to underpin our efforts to strive for the very thing so strongly advocated by the noble Lord, Lord Turnberg: an open reporting culture where identifying errors helps organisations to improve the safety of care. Where providers take the steps to manage the risk to safety, frontline staff can focus on the needs of patients and service users, content in the knowledge that the environment in which they work promotes safety and quality.

Our debate up to now has perhaps given the erroneous impression that the fundamental standards are just about the systems and processes. They are not. They focus on the outcomes of care and treatment. The new regulations, which come into force in less than three weeks, place patients and service users at the heart of service provision. They require that treatment and care meet the needs of service users and reflect their preferences. They prohibit providers from providing care without consent. They also put in place a new duty of candour that requires providers to inform service users where there have been failings in their care.

In those ways, patients and service users are central to the fundamental standards. Clause 1 rightly ensures that safety and the reduction of avoidable harm will always be the foundation of the regulatory system operated by the CQC.

I turn to Amendment 4, in the name of the noble Baroness, Lady Finlay. I am confident that all noble Lords share the same objective as that of Clause 1, which is to place patient safety at the heart of the delivery of services. The Committee will be aware of the importance that the Government place on improving safety. The recent report of the Morecambe Bay investigation has re-emphasised that that is the right approach. Moving towards the reduction of avoidable harm requires action across the health and social care system.

I agree with those who say that the main way to reduce avoidable harm is through changes in culture. None the less, there is also a role for legislation. The role of the law in this area is straightforward: it can define minimum acceptable standards and introduce

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ways to protect patients who are put at risk when those standards are not met. It provides a safety net that protects people from harm.

I stress that the regulations issued under Section 20 of the Health and Social Care Act 2008, which Clause 1 amends, apply to registered providers of health and adult social care in England. There are two important points here. First, the regulations do not apply to individual members of staff but to the providers of care. In that respect, they offer protection to staff as well as to patients and service users. Secondly, the scope of the regulations is not restricted to the health service but applies also to adult social care. In that respect, the scope of the clause is broader than that of the noble Baroness’s amendment. For that reason, I prefer the current wording, which offers the same protection to patients and service users wherever they receive care, not just in the NHS.

The noble Baroness asked whether the clause applies to all care organisations, including those in the voluntary sector. All providers of regulated activities must register with the CQC and meet the registration requirements, including voluntary sector and independent sector providers. She also asked whether the regulations will be consulted on and subject to affirmative resolution. The answer to both questions is yes, but having said that, the fundamental standards regulations are consistent with the objective of Clause 1. Those regulations were consulted on and were subject to affirmative resolution. Any future regulations amending or replacing those regulations would also be consulted on and, unless the changes are minor, would be subject to affirmative resolution.

Lord Warner: Can the Minister clarify something for me, because I am increasingly puzzled? He keeps talking about the fundamental regulations which are coming into force in three weeks’ time being consistent with Clause 1. If they are consistent with Clause 1 as they are framed, why do we need Clause 1?

12.30 pm

Earl Howe: What Clause 1 does is to amend the provision whereby the Secretary of State may require the CQC to have safety as its prime objective to one where it must have that requirement as its prime objective. That is what Clause 1 essentially does, so there is a good reason for having the Bill alongside the regulations.

Lord Warner: I am sorry but this is quite a key point. If the Minister is right and those regulations were drafted in accordance with the law as it stood before this Bill, they presumably make the same requirement. The Minister is saying that they meet the requirements of the Bill. I still cannot reconcile why you need to change the law, particularly if we are now into “may” and “must” territory, which always delights your Lordships’ House. I am obviously being very dim but I still cannot understand why you need to change the law—the primary legislation—but do not then need to revisit the regulations which were made under other primary legislation. I thought I saw the Minister proceeding, uncharacteristically, with a degree of caution

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on this. There is an issue here on which, so far, the Government have not given me a particularly convincing explanation.

Earl Howe: I am very sorry that I have not given that explanation clearly enough. The point was well drawn out at Second Reading by my noble friend Lord Ribeiro that what Clause 1 essentially does is to bring patient safety absolutely to the fore in the context of the CQC’s work. That is entirely consistent with the approach that we took in the fundamental standards regulations which, as the noble Lord knows, flowed out of the work done by Sir Robert Francis QC in his report on Mid Staffordshire. If I can be clearer to the noble Lord before the conclusion of this debate, I will be glad to do so but I find it difficult to say more than I already have on this.

The noble Lord, Lord Turnberg, asked about the CQC’s guidance. Its guidance on the new fundamental standards has been consulted on. The CQC has a range of actions that it can take when a provider does not meet the fundamental standards, ranging from a warning notice to cancelling registration. The CQC’s enforcement policy is clear that any action that it takes will be proportionate to the risks to patients and that its most serious sanctions will be used only in response to the most serious service failings.

Lord Elton (Con): My Lords, would another way of addressing the concerns of the noble Lord, Lord Warner, be to say that Clause 1 removes from the Secretary of State a discretion to produce regulations which are not as satisfactory as the current ones are?

Earl Howe: Not for the first time, my noble friend Lord Elton comes to my aid. That is exactly right.

Lord Turnberg: My Lords, I listened extremely carefully to what the noble Earl has just said and I am grateful to him for clarifying what a registered person is—I think that it is the word “person” that gets very personal here. I remain somewhat concerned about whether legislation to stop avoidable harm is a feasible proposition.

Lord Hunt of Kings Heath: Perhaps I may say to my noble friend that I think that the noble Lord, Lord Ribeiro, should wind up first and then he should come back.

Lord Ribeiro (Con): My Lords, I thank the noble Lord for that intervention, and I thank my noble friend the Minister for his succinct answers in respect of Clause 1 and the four amendments that have been tabled. Before I respond to the amendments in the names of the noble Lords, Lord Turnberg and Lord Warner, and the noble Baroness, Lady Finlay, I would point out that I have heard reference in the Chamber again today to zero harm. Clause 1 is not about zero harm but rather about reducing harm. It is very important that we make that clear right at the beginning as well as right at the end.

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The noble Lords, Lord Turnberg and Lord Warner, do not object in their amendments to placing a clear duty on the Secretary of State, as defined in the Bill, and they recognise that the clause places an obligation on the Secretary of State to include steps to reduce avoidable harm in the requirements for registration with the CQC. However, they argue against including the term “no avoidable harm” and would prefer it to be replaced by “reducible harm”. We will get there. It is important to note that it is the providers of health and adult social care services in England that are required to register with the CQC, not individual members of staff. Again, the concerns that the noble Lord, Lord Turnberg, expressed at the beginning were about the perception that this obligation would fall to individual practitioners or health and care workers. It does not. It is very much defined as being on those who are registered with the CQC. That cannot be clarified enough. I think that my noble friend the Minister made that point.

At Second Reading, the noble Lord, Lord Willis of Knaresborough—he is unfortunately not here today, but has been supportive of the Bill—and I attempted to blow away the myth of zero harm, which implies something negative that will impact adversely on healthcare professionals when something goes wrong. The fundamental standards, which have been referred to, become law on 1 April. They will not be changed by the Bill, which places a duty on providers to ensure that safe systems are in place for the care of patients. It is about putting safe systems into place, just as in the airline industry you need safe systems in place to ensure that disasters do not occur.

Clause 1 is in no way critical of the new fundamental standards, which meet the demands of the clause. As the noble Lord, Lord Warner, said, NHS providers have sought assurances on this point, and I think they have been given. In their report, they also asked how the Government will avoid the clause creating a clinical culture with staff fearful of taking controlled risks and reporting mistakes. I think that education and training of the workforce will be used to ensure that that does not happen.

The noble Lord, Lord Warner, was also concerned about some aspects of Clause 1 and the effect that the Bill will have on the Secretary of State’s position. The Bill removes the Secretary of State’s discretion in determining whether the legal minimum standards for providers of health and adult social care cover the requirement to move towards no avoidable harm. This is so central to the quality and safety of services that it is right that there is no possibility of future Secretaries of State electing not to cover this area in the registration requirements. That is one of the principal reasons why it is important to have Clause 1 in the Bill and not just to rely on the fundamental standards.

I mentioned training and education. The noble Lord, Lord Turnberg, expressed his considerable concerns about the culture, fear and frustration that the Bill will create, rather than openness and willingness. I will address his Amendments 2 and 3 by referring to the Department of Health’s response to the Francis report in its document Culture Change in the NHS, which

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recognises the importance of health education and safety. The Berwick advisory group has been mentioned a lot during our discussions, along with the health foundation. The Berwick review recommended that,

“all healthcare professionals receive initial and ongoing education on the principles and practices of patient safety, on measurement of quality and patient safety, and on skills for engaging patients actively”.

Health Education England’s commission on education and training for patient safety, chaired by Sir Norman Williams, a past president of the Royal College of Surgeons, and Sir Keith Pearson, the current president of NHS England, set out proposals for enhancing safety training for all health and care professionals covering four themes: how to raise concerns about patient safety; human factors, which are increasingly important for patient safety, particularly in surgery; mandatory training to improve patient safety; and service improvement for patient-centred outcome and patient safety.

The noble Baroness, Lady Finlay, expressed concern that the Bill might stifle the reporting of errors. Berwick recommended a number of measures to ensure the effective reporting of serious incidents and prompt action in response. Many such measures, such as the new national patient safety alerting system, are already in place, and 17 alerts have been issued in the past year. I believe that the learning and training tools are in place, and NHS England is working with the Health Foundation to implement Berwick’s recommendations. Where a provider takes the necessary steps to mitigate the safety risks, this will allow front-line staff to focus on the treatment and care needs of patients and service users. Far too often we have heard it said that practitioners are looking up to managers rather than looking down at their patients. This Bill, if implemented, will provide them with the knowledge and comfort that safety systems are in place and that, if they fail, it will be the provider who stands accused, not the professional. I hope that that will give some reassurance to the noble Lord, Lord Turnberg.

I was heartened to see the heading of Amendment 4, which was tabled by the noble Baroness, Lady Finlay. Although I do not agree with the substance of the amendment, it does make the point that “reducing harm in care” is what this Bill is about. Many speakers in our earlier debate, including my noble friend the Minister, referred to reducing avoidable harm. The noble Lord, Lord Hunt, also talked about the checklist. At Second Reading, in response to the point about checklists, I said that colleges and speciality associations totally support the proposal. As the Minister pointed out, the checklists are mandatory and disciplinary action will be taken if they are not followed.

Lord Hunt of Kings Heath: Does the noble Lord agree that there is a problem at the moment in that organisations feel somewhat inhibited in taking action against consultants? There are two things—the checklist itself, and then the consultant’s approach and attitude to the checklist. It would be very helpful to have support from the Royal College of Surgeons and other bodies alongside that of the Government to put a bit of backbone into the boards of organisations.

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Lord Ribeiro: I entirely agree. This should be taken forward in all the colleges and, in particular, in the Academy of Medical Royal Colleges. Checklists do not stop with surgeons. There is a lesson here for many medical disciplines which could adopt similar practices. This is something that we should hear more about in future.

I have reflected on this in the light of today’s debate and the concerns expressed by the noble Lord, Lord Warner, and others, and I feel that the amendment tabled by the noble Baroness, Lady Finlay, provides an opportunity to look again at the heading of Clause 1 and to change it to “reducing harm in care”. I am assured by the Public Bill Office that it is possible to change a heading in a Bill without an amendment. I propose to accept the noble Baroness’s suggestion and recommend a change in the heading which will be printed when the Bill is enacted, although I may well ask her not to move her amendment in respect of the rest of the content.

I hope that that and the other assurances I have given about the progress in education and training following the recommendations of the Berwick report will reassure those who remain concerned that this clause implies zero harm. It does not, but it will encourage the reduction of harm in any health setting. It is progressive and does not imply that from the day that the Bill becomes law we will outlaw avoidable harm. To err is human. Our job should be to create a climate through the education and training of medical students—who from this autumn will become patient safety champions—trainees and all healthcare workers whereby they recognise that reducing harm is their responsibility. As a result, I hope noble Lords will not press their amendments.

Lord Warner: Will the noble Lord clarify the change in heading? On the first page of the Bill there are two references to “harm-free care”. Will both be changed to “reducing harm in care”?

12.45 pm

Lord Ribeiro: No. The heading “harm-free care” will be changed to “reducing harm in care”.

Earl Howe: My Lords, before the noble Lord, Lord Turnberg, decides what to do with his amendment, I shall reinforce the explanation I gave earlier in answer to the noble Lord, Lord Warner. This clause removes the Secretary of State’s discretion around whether the requirements for registration with the Care Quality Commission should cover the safety of care. That is the approach at the moment, but the impact of the change we are making is to embed current policy and practice. As my noble friend Lord Ribeiro has helpfully explained, without this change a future Secretary of State could in theory decide not to include patient safety requirements in future regulations. The Bill ties the hands of future Secretaries of State on this important matter. It would require a change to primary legislation to alter that. That has substantive significance as well as presentational significance.

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Lord Turnberg: My Lords, I apologise to the House and to the noble Lord, Lord Ribeiro, for leaping to my feet in my eagerness to respond.

I listened very carefully to the noble Earl and to the noble Lord, Lord Ribeiro, both of whom were able to reassure me to an extent about the meaning of the term “registered persons” and to whom that refers, so I am happy about that. Incidentally, I am also happy that there should be a duty that the Secretary of State “must” put forward regulations.

However, the question remains, is legislation to stop avoidable harm a feasible proposition? I remain unhappy about the possibility that this will result in excessive caution, lack of will to innovate in clinical practice and the potential to drive underground the bad behaviour of some doctors who may not wish to admit to it. Therefore, there is still some worry there.

I am particularly concerned after having spent some time going through that rather weighty document, the CQC’s guidance notes, which are particularly heavy-handed. They are extremely clear and dogmatic, and rather light on how to achieve what it wants to do. They seem designed to inhibit any innovative practice, and I fear that the document itself, following on from this legislation, will be unacceptable to people in the field.

I take the point, incidentally, about not having training, education and supervision in the Bill, even though I know that that is critical to the way in which this whole programme—what we all want—can be delivered. That is entirely dependent at the local level on people who will oversee and ensure high standards of care in their institutions. Therefore, clearly this is an important element which comes out in the CQC guidance, but not as strongly as one would wish. I noted that the noble Earl said that he would take away the possibility of looking at the CQC guidance—I am not sure whether I understood that correctly, but I hope that that is the case.

For the moment, as I have expressed, I am still somewhat unhappy about the nature of this bit of the legislation. I will ponder further on what has said. I beg leave to withdraw my amendment.

Amendment 1 withdrawn.

Amendments 2 to 4 not moved.

Clause 1 agreed.

Clause 2: Consistent identifiers

Amendment 5

Moved by Baroness Finlay of Llandaff

5: Clause 2, page 2, line 36, leave out “best”

Baroness Finlay of Llandaff: My Lords, first, I apologise to the House for not declaring my interest as president of the BMA at the opening of this debate, given that the BMA has briefed about problems with the Bill.

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My Amendment 5 focuses on the word “best” in the term “best interests”. I have had a concern about this because of the way “best interests” is now used. I have looked back, thanks to help from the Library, at 147 pieces of legislation in which the term “best interests” has been used. If one looks at those that came after 2005, when the Mental Capacity Act was passed, it is notable that that term has been included when it concerns the best interests of children, young carers, safeguarding, protection of those who lack capacity, or with regard to organisations such as charities—but not with regard to adults, who would be considered to have capacity as individuals. The term is also used in connection with the storage of gametes and the provision of local services and pension funds, which must act out of the collective best interest of people with whom the legislation is concerned.

I have also understood—I stand to be corrected—that in legislation the most recent use of a term supersedes all preceding use of that terminology in legislation. Therefore, the Mental Capacity Act should be the Act we look to. However, here we have a specific decision to be made in the so-called best interests of an individual, who can be assumed to have capacity, about the decision over their data, and that decision is being made by another person. My concern is that we are legislating for one person, the health or adult social care commissioner or provider, to decide that inclusion of the NHS number as a consistent identifier is, or is not, in the individual’s best interest, even though the individual with capacity may, if consulted, feel very differently. My concern is because there are quite serious implications about not including the NHS individual identifier.

I turn to the principle of best interests. For years we have tried to make sure that that term was used properly in both health and social care. We had a very interesting debate earlier this week on the post-legislative scrutiny of the Mental Capacity Act. Strenuous efforts have been made to roll out empowerment of individuals to enhance capacity and not to take paternalistic decisions of one person over another. Indeed, I have been involved in trying to teach the principles of the Mental Capacity Act, and I am fearful that this wording—as in this piece of legislation—could be seen to undermine the laudable intentions of that Act in terms of empowering individuals to take decisions.

I turn to Amendment 6 and how the NHS function of the unique identifier is important. In our society, we have several different identifying numbers—national insurance numbers, bank account numbers, passport numbers and so on. The national insurance and passport numbers are held from within the province of government. Perhaps it would be more honest to state that, if you do not wish your NHS unique identifier to be available to be available to you, you have effectively signed yourself out of NHS services.

Indeed, I am grateful for a briefing that I have only just received this morning, which points out—if I have understood it correctly—that opting out of the use of the NHS identifier opts you out of systems such as “choose and book”, screening programmes and so on. So effectively you are in part removing yourself from services that are available as a public health measure, as well as services that would be available to you as a

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patient. I wonder whether we should state clearly that the onus is only on you as the individual to explain why you wish such a number to be excluded, perhaps because you are a public figure and wish to use an alias—or should we begin to think about whether there should be the occasional possibility for people to have two numbers to use in different situations, rather as you can, in exceptional circumstances, hold two passports?

The NHS number makes links across the whole system of pathways of care. Indeed, it is there to reduce risk. For example, if you have two patients with a similar name who are going for surgery, the NHS number will be used as a checklist identifier to make sure that the right patient of that name is taken down for surgery. We are all aware that, when patients are in hospital and frightened and feel disempowered, they are less likely to challenge the processes that are happening to them than when they are fit and well.

Another problem concerns me. What about the person who is coerced or pressurised into withholding their NHS number because somebody is badly intentioned or abusive towards them and does not wish that abuse to be revealed? A person may appear in different parts of the healthcare system but, without that NHS identifier number, the dots cannot be joined up to protect them or to detect that there is a problem.

I seek confirmation in summing up from the Minister that I am correct in understanding that, if you decide not to use your NHS number, you are opting out of things such as screening programmes, as well as having to present your NHS number to be able to opt out of systems such as care.data, and so on. At the moment, if you opt out of care.data, you are opting out of screening programmes as well.

Another problem for the NHS is that hospital episode statistics rely on the NHS number, which is effectively how the hospital is paid. If there is no number, the only identifier that the hospital has is your name and address, which is a far greater threat to privacy in the system than is the NHS number.

With those comments, I await the Minister’s response to the questions I have posed. I emphasise again that I have real concern about how the term “best interests” is being used. I seek clear clarification in his answer so that we can have clarity on the record about how the term is used in the context of the Bill.

Baroness Hollins (CB): My Lords, Amendment 7 in my name focuses on the proposed duty in Clause 3 to share information between health professionals and social care professionals. I apologise that I was out of the country during Second Reading and was unable to speak. I congratulate the noble Lord, Lord Ribeiro, for championing the Bill through the House. I also thank the noble Lord, Lord Hunt, for supporting this amendment, together with the noble Lord, Lord Low, who unfortunately cannot attend today.

From my own research and the work of the confidential inquiry into the premature deaths of people with a learning disability, I know that there are some appalling patient safety outcomes for people with learning disabilities, where improved information sharing has a real prospect of helping. Data scaled up from the

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confidential inquiry show that 1,200 people with a learning disability die avoidably in NHS care every year. In many cases this is due to poor or inadequate care or diagnostic overshadowing, where, put simply, professionals fail to see past the learning disability to what is really affecting the patient, may not recognise that the person has a learning disability, or may have had no training on what a learning disability is.

1 pm

Competent information sharing on people’s conditions and treatments will help address some of this but it is critical that information about people’s communication needs is also shared. This is the crux of the amendment, which is probing by nature, and I hope will lead to reassurances from the Minister that the communication needs of disabled people will be given the required focus in the guidance associated with the Bill. I am supported in this by the Royal MENCAP Society, the National Autistic Society, RNIB and Sense, which provided a very helpful briefing that I understand has been circulated widely.

It is vital, and seemingly obvious, that doctors, nurses and those working in care should communicate effectively with patients, or the people they support. This might be so that a patient understands their diagnosis, any decisions they might have to make, any instructions accompanying medication and so on. The best way of communicating will, of course, vary. Some people with a learning disability might, for example, need information about medication in an easy-read format with pictures and simpler text. People who cannot read at all may need the information just in pictures, and someone with a visual impairment might need instructions in large print or Braille. Others may need an advocate, family member or interpreter to be present to support them in discussions with clinicians. I refer here to my interests as laid out in the register.

The importance of sharing details about people’s communication needs is brought into sharp focus in a story given to me by MENCAP. The family has asked that the identity of the young lady in question should remain anonymous. She died in 2012, after being in hospital for less than a month. During that time she lost a stone in weight. No alternate feeding route was considered for her until shortly before she died. No information about her communication needs was available. No best interest meeting was held, as required by the Mental Capacity Act, on how to communicate better with her or on any reasonable adjustments that would have benefited her. She said no when asked to undergo a vital diagnostic test and staff assumed that she had refused consent. In fact, this was what she always said when she was confused or did not understand. Her surgery a week later found complications that would have been detected by those tests. She died shortly after. These issues all stemmed from a lack of understanding about her communication needs and reasonable adjustments that she needed. It is quite likely that if this critical information had been made available to the right professionals, her death might have been prevented.

I will take this opportunity to talk about the mechanisms by which this critical information might be shared effectively. More and more disabled people

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are supported to use very practical tools such as communication passports, hospital passports and care plans. This is good news. We also expect publication by NHS England of an accessible information standard later this year. It would not be difficult for health and care professionals to include copies of relevant communication tools when referring people to specialists. One way is via the summary care record. As the Minister will be aware, 90% of people in England already have a summary care record which contains some quite basic information. Is there any reason why information about a person’s communication needs could not also be uploaded by the person’s GP to the summary care record? Once uploaded by the GP, the information will always be there for other health professionals to access.

There is one small word of caution. Many GPs are still unfamiliar with the communication needs of people with learning disabilities and the communication tools that can facilitate access. Is the use of the summary care record something that the Minister could consider including as a requirement or recommendation in guidance? I hope that such an expectation would also lead to the skills gap that I have identified being addressed.

In concluding, I reiterate that there is an opportunity here to improve the experience of disabled people in hospital and care settings through a greater understanding among professionals of their needs. I hope that the Minister can provide reassurances today and that guidance will reflect this. I hope also that the noble Earl will commit to an ongoing dialogue with the charities that I referred to earlier, the professionals with expertise in this area, and, of course, disabled people and their families.

Lord Hunt of Kings Heath: My Lords, this has been an interesting debate. I thought that the noble Baroness, Lady Finlay, raised some important points in relation to the definition of “best interests”. Because she referred to a number of identification streams within the health service, I ought to declare my interest as president of GS1 UK, the barcode association. Barcoding is, of course, another indicator that can be used.

I recently had an interesting discussion in Solihull with people who are helping the integration board that is aiming to bring health and social care together to provide integrated services. It was interesting to get an insight from a company that is helping the statutory providers to do this by confronting situations in which individuals are provided with services from a number of different statutory agencies but where there is, seemingly, no co-ordination at all between them. One often gets professionals arriving at the same time but not communicating with each other. This is partly due to the problem over information systems.

I should like to ask whether the noble Earl considers that the passage of the Bill will help the integration of that information, provided that the public have confidence in the process under which information is shared. There is clearly a balance to be drawn between the benefit of information sharing between statutory bodies in terms of integrating provision, alongside the safeguards

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necessary to the public. One should be in no doubt that this is quite a tension. Yesterday, the parliamentary Intelligence and Security Committee published a report on the holding of information by the security services. Reading it gives some cause for concern, in many cases, about the amount of information available about individuals. Although, as I understand it, the committee report says that that information is often never referred to or used, it none the less could be. The whole issue regarding the integrity of confidential information is important. On the other hand, we know that we have considerable failures in service because there is no sharing of information. The point that the noble Baroness raised about what we mean by “best interests” and the issue of how we can ensure public confidence is extremely important.

I support the amendment in the name of the noble Baroness, Lady Hollins, which offers an opportunity to debate the importance of including people’s communication needs in the information shared between health and care professionals. I have received helpful briefing from Mencap, the RNIB, the National Autistic Society and Sense. It has become abundantly clear that failure to understand the best way in which to talk to individuals can result in misunderstandings, misdiagnosis and, ultimately, poor care. Accessible and easy-to-read information, perhaps with pictures, to which the noble Baroness, Lady Hollins, referred, and the presence of family, advocates or interpreters, can make the difference between diagnosis and misdiagnosis.

It would be very helpful if the noble Earl could clarify that the communication needs of disabled people and the reasonable adjustments that they might need will be an important part of the health information that should be shared between professionals. I certainly hope that he is willing to place on record that guidance associated with the Bill will reflect this and that it will reach the relevant professionals.

Earl Howe: My Lords, let me turn first to Amendment 5. I understand the noble Baroness’s concern that there should be no confusion over the “best interests” wording in the Bill and the more technical and prescribed “best interests” checklist test in the Mental Capacity Act 2005. The key point for me to emphasise straightaway is that in this Bill the phrase “best interests” is ascribed its ordinary meaning: the consideration of a range of factors, including the wishes of the individual. Nothing in the Bill detracts from patient autonomy or the importance of supportive partnership working between clinicians and patients. This is in marked contrast to the “best interests” test checklist found in the Mental Capacity Act, which the noble Baroness was instrumental in shaping. In that Act, which concerns individuals who lack capacity, the term is not defined. A checklist of considerations helps professionals to determine what a patient’s best interests are.

The information-sharing provisions of the Bill respond to concerns expressed by the National Data Guardian. Dame Fiona Caldicott, in her 2013 review of information sharing, identified a risk-averse culture and concluded

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that the duty to share information for a person’s own direct care should be considered as equally important as the duty of confidentiality. I quote from her review:

“Health and social care professionals should have the confidence to share information in the best interests of their patients”.

These provisions seek to establish that sentiment in law.

The presence of the phrase “best interests” in this Bill ensures that it complies with the central principle of the Data Protection Act and the Caldicott review: to share information only where necessary and relevant. The term “best interests” is used elsewhere in primary legislation, including in the Human Fertilisation and Embryology Act 1990 and Section 38 of the Medical Act 1983. It was also used more recently in the Charities Act 2011, the Legal Services Act 2007, and in the Pensions Schemes Act 2015, which received Royal Assent last week—all are without reference to the checklist in Section 4 of the Mental Capacity Act. It is a term used across a wide-ranging legislative landscape with its ordinary meaning.

The “best interests” test in this Bill is no different from that in the pensions Act or the Legal Services Act. It requires a professional to apply a common-sense approach. I appreciate the noble Baroness’s concern that the use of the word “best” could herald a return to a “doctor knows best” kind of paternalism and to disempowering patients in the process. I sincerely hope that I can convince her that this is neither the intent nor the effect of this Bill. I am sure that the whole House will agree that the focus of information sharing should be on the needs of the individual, rather than defensive, risk-adverse behaviour of the type we have sometimes seen in the past.

I can confirm that the Department of Health will provide guidance to support the interpretation of these new duties. This will include a clarification that the term “best interests” is ascribed its ordinary meaning. The Government will also amend the Explanatory Notes to that effect.

Lord Hunt of Kings Heath: My Lords, that was a very helpful response. May I just ask the noble Earl whether explicit examples will be given in the guidance? The issue of professional defensiveness is very important. He will know that, out in the field, people often have a different view about data protection. Sometimes it gets in the way of sensible, professional working together. I urge that the guidance should be as practical as possible and that it should be aimed at field workers, rather than just the organisations they work for. Let us take as examples care workers, health service workers, health visitors and nurses, in regard to whom it is clearly in an individual’s best interests that information is shared about visits, and that sometimes responsibilities are shared, and that they are not inhibited because of some myth about their inability to share information.

1.15 pm

Earl Howe: The noble Lord makes some very good points. The duty to share information will, we trust, ensure consistency in the sense that it will make it clear when the duty to share applies. It is clear that there is a real commitment throughout health and adult social

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care to overcome the cultural barriers that Dame Fiona referred to. For example, the sharing of information for the purposes of an individual’s direct care is already required as part of the professional duties of health and care professionals, and sharing for direct care purposes can be undertaken in accordance with the common-law duty of care.