Coronavirus Bill

Baroness Barker Excerpts

2nd reading & 2nd reading (Hansard - continued) & 2nd reading (Hansard - continued): House of Lords
Tuesday 24th March 2020 Lords Chamber

[Baroness Barker (LD)]

My Lords, I, too, pay tribute not just to the staff of the NHS, who are doing a truly wonderful job, but to the army of cleaners, drivers and shop assistants who are playing an incredible role in the most difficult of circumstances.

I start by echoing what my noble friend Lord Newby —and, to a certain extent, the noble and learned Lord, Lord Falconer of Thoroton—said about the need for scrutiny and for this House in particular to scrutinise legislation. Speaker after speaker has said that at any other time, this legislation would simply not pass.

It is extremely important that when the Government have to take extreme measures—and they do—they do so in an open way and that there is detailed discussion involving people who themselves have the relevant experience and information, or who have access to outside expertise, as do we in this House. That way, we will go beyond the level of a television interview. We need to deal with matters in great detail and be part of the information and education programme that will be necessary throughout all this, to ensure public support for and recognition of the need for extreme legislation.

Secondly, we must recognise that the Bill comes before us at a moment when we do not have large-scale testing programmes or vaccination, and that that has a direct effect on everything in it. If we have both in a few months—as I very much hope we will—life will be very different, and it will be important then to revisit some of the assumptions built into the Bill.

I want to make a point that may seem obvious, but nobody has yet said it today. When we talk about the NHS and local government, we are talking about completely different systems. The NHS is a centralised system which is largely run on a not particularly democratic basis; it is run more on the basis of expertise. It is a command-and-control system that enjoys a political standing in this country which practically no other body does. Local government is different. It is based on an open democratic procedure, with elected officials, and it does not, by and large, enjoy the same standing. Therefore, local government is, quite naturally, often very defensive and cautious, and for good reason—it gets taken to town by the Daily Mail quite frequently. We are suddenly expecting those two systems to function together in the same way. I go back to the point that my noble friend Lord Scriven made earlier, which may seem terribly technical but is in fact very important. There needs to be a general power of direction for local government, so that it can take the decisions that will have a bearing on the health and social care outcomes of its local population.

It is really interesting to see what, even in an emergency situation, government considers to be important and not important. Three things in the Bill are problematic. The first is the removal of the duty on local authorities to provide adult social care. Everybody understands that local government will go through the most massive transformation; it will never be the same again. It will probably have to reorientate everything towards this for years to come, and certainly for a year. However, to remove that duty completely is wrong, because from it flows not just the way in which vulnerable people are dealt with now, during the emergency, but the recovery process for local services and so on. It would be preferable if local government retained its relevant social care duties, but that their application was amended so that it was required to implement them only so far as is reasonably practical. As the noble Baroness, Lady Verma, said, domiciliary care is under immense strain. If local authorities do not make those investments now because they think they will not have the money, the impact on the NHS in a few months’ time will be even greater.

When I talk to local government colleagues, as I am sure we all do, they say that one of the big issues worrying them is indemnity for volunteering. The Bill refers to volunteering for a local authority only in relation to health and social care. It may well be that, just to fulfil the health and social care duties, local authorities will have to rely on volunteers to do all manner of other things, such as carrying out some of their environmental responsibilities. They are really bothered, because local authorities have traditionally spent an awful lot of staff time doing DBS checks because of the nature of what they do. We need not only a fast-track system—for example, not allowing somebody who has ever been barred to be checked—but a much faster system. We should also have an indemnity for a local authority that has to reconfigure very quickly a number of its central functions.

The other point that it is important to make at this stage is that, more so than the NHS, local authorities have had whole ranks of staff taken out. They have a few central managers, and front-line staff. They do not have very much; in fact, unlike in the NHS, most of their services are not provided in-house, so they do not have the ability to command or summon up capacity in the same way the NHS does.

We are expecting that charities will step into that breach, but that sector, as people heard during the debate on the Question answered by the noble Baroness, Lady Barran, this afternoon, is on a cliff edge. Charities do not run with great margins or large amounts of reserves, and they cannot quickly scale up on nothing. You cannot have an entirely voluntary workforce; volunteers need to be managed, which is a skill in itself. Can the Minister talk about the need for there to be grant funds—some via the NHS, some via local authorities, and some direct to charities—in order to build up that capacity?

The Government have taken drastic action in respect of the Mental Health Act. Mental health tribunals are now to be a single judge on a phone—if we are talking in that way, we ought to require them at least to be videophones—and the three-month treatment rule will be changed. I, along with organisations like Mind and Rethink Mental Illness, accept that in a time of great stress on the NHS we cannot run the system as we do now. However, there are misgivings about people being sectioned under Sections 2 and 3 of the Mental Health Act. Having taken away some very fundamental safeguards with regard to people being deprived of liberty and incarcerated, will the Government reconsider the length of time before which somebody can have their case reviewed and make it much quicker, so that anybody who has been detained by one doctor instead of two will automatically go to the front of the queue for a swift review?

Having said that, one thing that has caused much remark in the social care sector is that there is no mention at all here of the mental capacity legislation. There are two problems with that. First, in emergency medicine there is still a requirement to establish that somebody has mental capacity and to ascertain their wishes. I understand that, at a time like this, an A&E department will not be able to go through such a comparatively bureaucratic process, and that it is possible to do a simplified version of that just for these purposes.

The other, bigger, problem is that we will have lots and lots of very vulnerable people in care homes without access to any sort of representation, or even assessment. So I say to the Minister, and this is a very difficult admission, that the Government may wish to take out some of the bureaucracy and form-filling that was in the Mental Capacity (Amendment) Act, which some of your Lordships worked on. We should be requiring people who run homes to enable relatives at the very least to have some kind of contact—remote contact, telephone contact, or something like that—if it is not possible to go in and visit. To ignore this completely sends out a really bad message to people.

I fully understand the Government seeing the need to free up medical resources by going down to only one doctor. I imagine that across the NHS people are looking at ways to free up time for medical staff, cut down visits and make sure that people are not going on public transport unnecessarily. As the Minister knows, I am concerned about women’s access to early medical abortions. We already have an agreement in England, Wales and Scotland that women can take at home the second of the two pills that they need, provided that they have ongoing support and access by phone to a medical practitioner. I ask the Minister to consider whether women can have a telemedecine interview with the staff of a clinic. They could then very quickly get the medicines that they need and take them safely at home. I am not asking for any other change to the grounds on which that might be done. It is simply an administrative procedure, but it would make an enormous difference to the ability of women, most of them young, to receive that healthcare.

On the next point, I declare an interest: my brother is shortly to retire as a police officer—this week, I think—having served in the Greater Manchester Police for over 30 years. All the provisions in the Bill are about health and social care workers, particularly health workers, returning. All the issues about their pensions apply to other people in public service. I rather suspect that there may come a time when we need police officers who are not long retired to come back, not least because they are first responders, they have some medical training, and all of that. I do not think anyone else has mentioned this issue. It is not a personal plea on behalf of my family in any way at all; it is a genuine point.

On the provisions to review this legislation, it seems wrong that the Government are going to say that the Bill cannot be amended in future. That is a mistake, a point that was made by David Davis in the Commons. As I said, the Bill has been made now on existing knowledge, but the position may well be very different in three or six months’ time. Inevitably, some of the proposals that the Government have put in the Bill will turn out to have been necessary, but some will not. It would be in the Government’s best interests to retain the flexibility for this Bill to be amended in the light of experience. I hope I have demonstrated, as other noble Lords have, that we say this in the spirit of seeking to be helpful to the Government, not to attack them or to try to achieve any kind of political advantage, and I hope the Minister and his colleagues will reconsider.

The Government have said that there are various powers in the Bill and they will be switched on and off as necessary. That is potentially very confusing. Have the Government thought about having a website, a place to which anyone who has to refer to the Bill can go, with a rolling update on which provisions of the Bill were active and which were not? I can see a number of people who will have to try to make this legislation work having problems doing so.

That said, sadly the Bill is very necessary. We will work hard, and although we will, I hope, be back here, we will work smart and in different ways to provide ongoing scrutiny and to help the Government, and indeed the country, to get through these extraordinarily difficult times.