Health and Social Care Bill

Debate between Earl of Sandwich and Lord Beecham

Monday 27th February 2012 Lords Chamber

[The Earl of Sandwich]

My Lords, having worked in the voluntary sector for many years, I could not resist saying one word in support of my noble friend. The only word that I missed from his speech and that of the noble Baroness, Lady Tyler, was “innovative”. The voluntary sector is ahead of the National Health Service in so many ways, as are other sectors.

We are coming to an amendment, if not tonight then probably on Wednesday, regarding addiction to prescribed drugs. This is a field where we have practitioners who are the people who do it; they are not the bureaucrats behind. It is an area where the Bill needs strengthening. The noble Lord, Lord Rooker, and I tabled a very important amendment on this matter last time around. I can hear him saying, “Let us take every opportunity to strengthen the Bill when it comes to the voluntary sector and bureaucracy”.

[Lord Beecham]

My Lords, I warmly congratulate the noble Lord, Lord Mawson, not only on the substance of his amendments but on his sense of timing, because we are now very familiar with complaints from the voluntary and community sector in relation to the welfare-to-work programme. It was anticipated that the sector would be heavily involved in helping to place people into work, but, in practice, we have seen most of that endeavour carried out by much larger companies, with the sector playing a very limited role. It is precisely to avoid that outcome that the noble Lord has tabled his amendments. In particular, I am attracted to and wholly support subsection (2) of the new section proposed by Amendment 64A, which would confer on the board the capacity to,

“take specific action to support the development, including capacity building, of the voluntary sector, social enterprises, co-operatives and mutuals”.

That seems to me the kernel of the two amendments, which we very much endorse. In a mixed economy of provision, that sector needs to be developed and supported.

A further potential opportunity is raised by new Section 13W, on page 23 of the Bill, which confers on the board a power to,

“make payments by way of grant or loan to a voluntary organisation which provides or arranges for the provision of services which are similar to the services in respect of which the Board has functions”.

That may be implicit in subsection (2) of the amendment, although new Section 13W appears to limit that power to grant or loan to a voluntary organisation, which would not necessarily include the social enterprises, co-operatives and mutuals referred to in the noble Lord’s amendment. Perhaps the Minister, if he is sympathetic to the amendment, will look at whether the provision about grants and loans in new Section 13W might be expanded.

It is never too late for a little pedantry. I want to raise with the noble Lord, Lord Mawson, a couple of questions about the wording of parts of his amendments. Proposed subsection (1) of the new section proposed by Amendment 64A refers to the board exercising its functions,

“so far as it is consistent with the interests of the health service”.

I think that he means the interests of patients, rather than the service as such, which I would have thought more consistent with the general approach.

There is also a potential problem with subsection (3), which seeks, understandably, to provide that the board should take such steps as might produce,

“a level playing field between providers … meaning that one sector of provision is not more disadvantaged than another and relative benefits can be taken into account”.

That seems potentially to conflict with Clause 146 of the Bill, which would appear to rule out such a deliberate adjustment in favour of the sector. That is one good reason why my noble friend Lady Thornton will move an amendment to delete that clause and I hope that the noble Lord will support it.

A further question concerns a matter touched on by the noble Lord, Lord Newby, and relates to the second amendment, which, I confess, I do not quite understand. The amendment provides that the board may promote the inclusion of weightings in the procurement process,

“which reflect wider social, economic and health outcomes for each local health area”.

Does that relate to the conditions that exist at the time of the procurement rather than outcomes? I do not see how outcomes would fit and I am not clear what the weightings are. They cannot be only financial weightings. Is it to be a consideration to encourage the letting of contracts to the voluntary and social enterprise sector because of the particular nature of the locality? It is not clear and perhaps when the noble Lord replies he will—at least for my benefit— touch on that.

Interestingly, the two amendments relate to the part of the Bill dealing with the functions of the National Commissioning Board but purely to the health service provision, whereas proposed new Section 13M on page 19 refers to both health and social care provisions. I can understand why the amendment is limited in the way that it is, but I assume—again perhaps the noble Lord will confirm this—that he would envisage ultimately the same principle being applied to the provision of social care services. Is it not an illustration of the failure to develop the social care part of the Bill, which we touched on earlier?

Having said that, I strongly support the thrust of the noble Lord’s amendment and repeat my congratulations to him.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Earl of Sandwich and Lord Beecham

Wednesday 18th January 2012 Lords Chamber

[The Earl of Sandwich]

My Lords, I am not sure whether this is the appropriate amendment, but having had some experience of immigration and immigration detention I just wanted to make one point. I know that we are coming on to issues related to that. I declare an interest as a patron of visitors to Haslar detention centre in Portsmouth.

Like others, I understand that the protection of liberty is one of the primary factors in the allocation of legal aid. Yet the advice I have received is that this Bill will fall heavily on the most vulnerable people in our society—asylum seekers and those in detention who are awaiting removal to their home country. In many cases, it will mean that a vulnerable person, perhaps a victim of torture and perhaps as young as 16, will be unable to present their case without access to any formal representation and whose legitimate cries for help under international asylum law will simply be unheard. Applications for bail will be refused even more often than they are today simply because of the lack of legal aid and proper representation, if I have understood the situation right.

I well understand that the Minister has to defend the Government’s position in difficult times but I would like some reassurance that the test of vulnerability under this legislation will be reasonable. Perhaps he could explain how it will conform with international human rights law.

[Lord Beecham]

My Lords, I rise to deal with the amendments in this group, one of which, Amendment 90ZZA, is in my name and that of my noble friend Lord Bach. It might be thought odd that that amendment is included in the group we are discussing, but I will deal with that later.

I wish to deal first with the amendment spoken to by my noble friend Lord Berkeley. I suppose that it can only appropriately be described as an original amendment as it relates to the Duchy. However, it raises an interesting constitutional point which needs to be explored, although, it may be thought, probably not in the context of this Bill. The noble Lord raises a legitimate concern and he is not responsible for the grouping. The matter does not fall entirely within the purview of the group that we are discussing and perhaps not of the Bill, but no doubt those matters will be addressed in some other way at an appropriate time.

I wish to touch briefly on the government amendments which are wholly uncontroversial and entirely acceptable to the Opposition. The Minister may not offer a detailed description of those amendments as they speak for themselves.

We certainly support Amendments 60 and 61, which were spoken to so ably by the noble Lord, Lord Ramsbotham. We entirely agree with him that we need clarity as to what constitutes harm for the purpose of the Bill, and in this context the loss of liberty must certainly be included. I trust that that is acceptable to the Minister. Frankly, it would be absurd if that were not the case. There is a question in my mind, and perhaps those of other noble Lords, about the precise meaning of “deliberate” in this context. Does that refer to the act of omission or commission—the substantive act—or to the fact that the consequences which are complained of were intended all along or ignored in a negligent way? It seems to me and to other noble Lords who have spoken that this amendment deals very adequately with those matters, and should be accepted.

The noble Lord who moved the amendment properly referred to immigration. In a briefing provided by Bail for Immigration Detainees, the point is made that the Bill does not define what “deliberate” or “harm” mean. It expresses concern that the ministry will seek to interpret “deliberate” as more than unlawful, and “harm” as injury, and that that would result in the exclusion of many claims for damages for unlawful intention or false imprisonment brought by individuals who lost their liberty as a result of unlawful acts by the immigration authorities or the police. In that event, it is quite unrealistic to suppose that without legal assistance such claimants could properly make their case. No doubt, the Minister will clarify the intention of the Bill in that respect.

However, these matters are not necessarily confined to immigration cases. There might well be other cases in which liberty might be lost, arrests made and people detained—for example, under the auspices of defective warrants. It may be that arrests are unlawful on the grounds that the requirements of the Police and Criminal Evidence Act were not observed, where the actions of officers were unlawful but were not thought to be deliberate. Other cases might arise out of breaches of the Data Protection Act, where a disclosure might wrongfully be made about someone who, for example, alleged that he had a criminal record when that was not the case and damage might be occasioned. Another example might be where someone in custody, either in a police station or prison, might be assaulted by someone else simply because of the negligence of those operating the facility in question. I should not imagine that the Government would seek to exclude the provision of legal aid in those cases.

Amendment 90ZZA refers to a rather different set of circumstances—in fact, an entirely different set of circumstances—that bring into play the position that might arise in the Court of Protection. On an earlier amendment, we heard the noble Lord, Lord McNally, restraining his glee at pointing out the defects in amendments moved by the noble Lord, Lord Thomas, and supported by me, on the applicability of Court of Protection proceedings. However, this amendment relates to a different case. It seeks to insert “mental or psychological” harm, in addition to physical harm, into paragraph 4 of Part 3 of Schedule 1, relating to,

“Advocacy in the proceedings in the Court of Protection”.

At the moment, legal aid would be limited to,

“a person’s right to life … a person’s liberty or physical safety”,

and some other matters. However, physical safety is not by any means the be-all and end-all, and there are clearly cases where people might be subjected to psychological or emotional harm and may require legal assistance. One can think of people with learning disabilities being abused or taunted, generally suffering as a result of the actions of others, and needing the protection of the Court of Protection—and therefore needing legal aid to pursue their remedy and obtain protection. It is fair to say that it is unlikely that there would be many cases of this kind, and therefore, as has been suggested in respect of other amendments that we have discussed, the cost would be likely to be limited. However, the Court of Protection can deal with such matters by granted orders and injunctions to protect people from harm that may amount to physical or emotional harm, in addition to the ordinary rights that would be available regarding legal aid.