Abortion (Disability Equality) Bill [HL]

Lord Lester of Herne Hill Excerpts

Report stage (Hansard): House of Lords
Friday 24th February 2017 Lords Chamber

[Lord Lester of Herne Hill (LD)]

My Lords, it is a privilege to speak after the noble Lord, Lord Winston. He and I go back together a long time to when we both created life—I as lawyer and he as expert witness—in Diane Blood’s case. As a result of that case, she was able to create two boys using her dead husband’s sperm. I listened with care to his speech. We are privileged to have him, one of the greatest experts in the country on the subject, and I agree entirely with his speech; I simply do not agree with the amendment, and I need to explain why.

I am a man; I am not, as far as I am aware, disabled at the moment; and I am not a doctor, so what is my reason for speaking on this subject, as I believe that it is very much up to the woman and parents, not to others, to decide whether to have babies? The reason I speak is because of my experience when I was counsel for the Family Planning Association in Northern Ireland, in a case that went to the Court of Appeal in Northern Ireland seeking to provide guidance to women in Northern Ireland, where, as your Lordships will know, there is no abortion Act in force, only the common law. The problem in Northern Ireland was, and is: what kind of medical service should be provided to those women in a common-law situation without the Abortion Act?

What I discovered during the course of the case and told the Court of Appeal, which was pretty disturbed by it, was that the one situation in Northern Ireland where women can get abortions without having to come to England, Scotland or Wales is on the grounds of foetal abnormality. They do so at common law, and they do so quite regularly. They do so without the benefits or burdens of the Abortion Act. My difficulty with the Bill, but my particular difficulty with the amendment, is that were it or anything like it passed, we would go back to the common law position, which is very uncertain and vague, but encourages the worst thing of all, which is backstreet abortions. The more difficult you make it to terminate pregnancies against the wishes of the woman, the more likely it is that she will be driven to other ways of aborting the foetus. That seems to me profoundly undesirable.

I understand perfectly well where the noble Lord, Lord Winston, is coming from with his amendment, but it cuts down the situation in which abortions are lawful under the Abortion Act and should remain lawful: where there is foetal abnormality but the foetus is unlikely to die when born. It should not be our function to limit the circumstances in which there can be a termination, given all the safeguards in the Bill about the medical profession and its ethics, which the noble Lord has talked about. Therefore, although I agree entirely with his speech, I cannot support his amendment.

[Baroness Tonge (Non-Afl)]

My Lords, I did not intend to speak to the amendment, but I have to stand up as a fellow medical practitioner—if a very humble one—to say that whenever the noble Lord, Lord Winston, speaks on his subject in this Chamber, he makes me feel young again. I am again a medical student listening to one of the best profs give a superb tutorial, and I thank him for that, because it was extremely useful. I add only a couple of things. I get very tired of people arguing that doctors assist women towards having an abortion—that somehow they want to get on with it, are complicit and do not allow women enough time. In my experience as a family planning doctor, and even when I was a Member of Parliament, I never came across examples of this. Women are listened to very carefully and allowed to make up their own mind. Allowing women to have the choice is essential.

A number of people say that women are terribly upset and traumatised after they have had an abortion. That is, again, a rarity. Usually, if they have had the right counselling and right termination, when they have had the abortion for whatever reason—particularly in the cases we are discussing this afternoon—there is a sense of great relief at being able to get on with their own lives. If the Bill went through we would be taking that away from a large number of women and I would deplore that.

Care Bill [HL]

Lord Lester of Herne Hill Excerpts

Wednesday 7th May 2014 Lords Chamber

[Earl Howe]

My Lords, I shall speak also to the other amendments in my name in this group. They respond to the excellent report from the Joint Committee on Human Rights and follow discussions that I have had with the noble Lord, Lord Low, and others. I am grateful to the Joint Committee and particularly to the noble Lord, Lord Low, who unfortunately is not able to be here today. I extend my thanks to my noble and learned friend Lord Mackay, my noble friend Lord Lester, the noble and learned Lord, Lord Hope of Craighead, and the noble Lords, Lord Pannick and Lord Warner, with whom I have had constructive meetings.

As has been said here and in the other place throughout the passage of the Bill, this Government need to send out a strong message to the sector not to allow abuse, neglect or harm. Our priority must be preventing harm, abuse and neglect happening in the first place.

However, Clause 48 as inserted by this House went too far. It applied the Human Rights Act to all provision of CQC-regulated social care. As the Joint Committee on Human Rights acknowledged, the Human Rights Act is not intended to cover entirely private arrangements. If Clause 48 became law, it would have been the first time that the Act applied directly to purely private arrangements where there is no state involvement. It could have led to other interest groups arguing that they should also be able to challenge private providers on human rights grounds in other spheres.

We still believe that much stronger deterrents are available. Many of the Care Quality Commission’s fundamental standards will include human rights dimensions. These standards will apply to all registered providers of health and social care, and failure to comply with them could be a criminal offence.

However, as I have just said, I am aware of the strength of feeling on this matter and that is why I am today prepared to offer a government amendment which I hope this House can support. The amendment would make it explicit that care providers who are regulated by the Care Quality Commission in England or by equivalent bodies in the rest of the United Kingdom, when providing care and support arranged or funded in whole or in part by local authorities, are exercising a public function for the purposes of the Human Rights Act. I hope that noble Lords will agree that this amendment meets the objectives of the Joint Committee on Human Rights. It makes it clear that providers of publicly arranged or funded care and support, both residential and non-residential, provided on behalf of a local authority to an individual, are bound by the Human Rights Act.

The Government were unable to accept the JCHR amendment as it was drafted for technical reasons. The Human Rights Act is an entrenched enactment which the devolved legislatures cannot modify, but its application should be the same across the UK. Government Amendment 11B therefore applies the legislative clarification to Wales, Scotland and Northern Ireland.

It is important to bear in mind that the scope of application of the Human Rights Act matters to lots of other people beyond the care sector. The Government believe that it is not appropriate to pick and choose which people or bodies are expressly made subject to the Human Rights Act. That is why I want to make it clear that this amendment would not set a precedent for any future occasions where there are perceived to be gaps in the coverage of the Human Rights Act. I hope that this amendment will be welcomed. I beg to move.

[Lord Lester of Herne Hill (LD)]

My Lords, I apologise to my noble friend for having missed the first few sentences of his speech. However, I heard the substantive part of it.

First, may I say on behalf of the Joint Committee on Human Rights, which met this morning, that the committee is absolutely delighted by how the Government have reacted to the problem that was raised in this House by the noble Lord, Lord Low, and many others, and which led to an amendment that—on reflection—was too strong? The amendment now tabled meets the problem admirably. The problem was created by an unfortunate decision of the Law Lords—by three to two—in the case of YL. As the Minister will know, the previous Government, like the present one, had been looking for an opportunity for that unfortunate judgment to be reconsidered in a suitable test case. However, no such case has arisen. The pity of it is that the whole point of the Human Rights Act was not to have a list of bodies that would be subject to the Act but to have a good, flexible test that would be fact-sensitive and would apply without the need for amendments of this kind. Unfortunately, no such test case has arisen where the matter could be properly decided, and therefore one has in a sense to use Elastoplast—sticking plaster—to deal with particular problems.

We quite understand the Government’s reservations about this being regarded as a precedent. As the Minister knows, ideologically there are some for whom the words Human Rights Act are almost anathema; that is why it required a certain amount of discussion to get to the present situation.

The Joint Committee sought clarification on just one matter. I do not think there is a problem; it is rather a matter of seeking confirmation that the Government intend the amendment to cover social care provided by a regulated provider and paid for by direct payments. It is not absolutely clear from the amendment that that is so. We think that it is so but is that correct? Do the Government intend the amendment to cover social care paid for by direct payments, provided that the care is purchased from a regulated provider? I am speaking extremely slowly, in order that others may be able to answer. No doubt others will want to say something about this amendment as well, but if that point could be confirmed in the Minister’s reply it would be very helpful. Nothing that I have said, however, should mask the delight we feel that this problem has been solved in this manner.

[Lord Hope of Craighead (CB)]

My Lords, I would like to say a few words about this group of amendments.

First, I thank the Minister for his helpful explanation. I particularly want to say some things on behalf of the noble Lord, Lord Low, who very much regrets that he is not able to be here this afternoon. His amendment sought to make it clear that the provision of regulated care was a public function for the purposes of the Human Rights Act, within the umbrella of Section 6(2)(b) of that Act. As noble Lords know, it was not accepted in the other place and we now have a government amendment which deals with that issue in rather different terms. It is a happy state of affairs to have that amendment in place.

The noble Lord, Lord Low, has authorised me to say two things. First, he very much welcomes the amendment and, secondly, he has asked me to express his appreciation for the way the Minister and his colleague in another place—Norman Lamb—have listened to the views in both Houses and have worked very hard to secure an agreement on the current amendment across government. The noble Lord, Lord Low, appreciates all the work necessary to achieve that, and he wishes me to stress his grateful thanks. I associate myself with these remarks.

Perhaps I may say one or two things in the light of what the noble Lord, Lord Lester, said about the case of YL. That was a decision by the United Kingdom Supreme Court, not by the Law Lords in this House. It was a decision by the justices by majority, and there it is. That decision stands as good authority for the point that it made, which was that while the regulation of privately provided care by a local authority was a public function, the private provision of care itself was not. The interesting point about the case arises at the very end where the noble and learned Lord, Lord Neuberger, said that if the legislature was unhappy with the decision and thought it appropriate, it would be right to spell out in terms that Section 6(2)(b) of the Act applied to private bodies whose provision of care and accommodation was funded by a local authority. That was what he was thinking at the time. The point he was making was that there would be a mechanism for dealing with particular problems in a particular way. That solution has now been worked out by the Government in the way that we see before us.

I respectfully suggest that by doing this, the Government are not setting a precedent. So far as the judges are concerned, they would not regard it as such at all; the precedent is in the Act itself and is doing precisely what the noble and learned Lord, Lord Neuberger, had in mind. I do not regard it as any disadvantage to do it in this way; it is very satisfactory that it has been achieved as it has. It is a precisely targeted measure which, as I have been trying to explain, is exactly what the noble and learned Lord had in mind.

I hope that I might be permitted to ask three short questions. I apologise to the Minister for not having given notice of them, due to the short time available since the amendment was circulated. The first relates to the list we see in the table at the end of subsection (3) of the new clause, which seeks to set out the list of the authorities to which the measure applies and a list of the functions intended to be covered by the measure. The question is, simply: can we take it that the intention is that this list should catch all the circumstances where care or support is arranged or paid for by the authorities listed there? We have not been able to check this for ourselves but I assume that that is the intention. It would be helpful if the Minister could simply confirm that that was what was being intended.

The second question relates to situations where a personal contribution, of whatever kind, is made to the cost of the care or support arranged by the authority. The arrangement is the authority’s but the individual makes some contribution of his or her own. Again, it is a short question: can we take it that the requirements to which that subsection refers will be met in that situation, the critical point being that it is the public authority that has made the arrangement? I would have regarded that as the touchstone as to whether or not this provision applies.

The third question is rather related to that, and to the content of the care package that is being provided. There may be cases, for example, where people with learning disabilities or mental health problems may need some assistance to enable them to participate in the activities that are being provided or get access to them. This question is similar to the second one. Can we take it that here, too, although these people are somewhat outside the scope of the other statute, the position nevertheless is that because it is the authority making and regulating the provision, the provision will apply to it?

These points aside, on behalf of the others on these Benches who have participated in these debates, I express my great thanks to the Minister and all those who have been working very hard to achieve the happy result that we have this afternoon.

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, the question that we are debating at the moment as we approach the enactment of the Bill is whether any extra words in any of these amendments are needed to provide more safeguards and greater public trust and confidence. The bit of law which is paramount but which has not been mentioned so far is the Human Rights Act. This Act, in Section 3, requires that all legislation, including this Bill, must be read and given effect to, if it is possible to do so, compatibly with the convention rights. One convention right, in Article 8, is the right to personal privacy. The Human Rights Act also provides that if any public authority, which includes the Secretary of State and any body performing functions of a public nature, were to breach the right to privacy, it would be liable to obligations, damages and other remedies under the Act. We do not have a written constitution which guarantees privacy; instead, we have the data protection legislation, which is broad-ranging, and the Human Rights Act.

The right to privacy requires three things. One is reasonable legal certainty where there is to be any invasion of privacy—one must know what it is for. The second is a legitimate aim—it must be done for a proper purpose. The third thing is that any invasion must satisfy the principle of proportionality—it must not be excessive. There is a lot of case law on this. Indeed, I was involved in one of the cases years ago in the Court of Appeal—called, I think, Source Informatics —which dealt with the lawfulness of supplying anonymised patient data.

I do not think it is sensible to add further language or further mechanisms over and above those that the Minister has described this afternoon. The more specific we become and the more we go on adding, the more ambiguities we create over what the additional words mean and how they might be interpreted. My view is that it is much better to use the Human Rights Act, the data protection legislation and the specific safeguards that the Minister has adumbrated very clearly today. In my view, they completely satisfy the right to patients’ personal privacy and I cannot think that adding these other words will add to public confidence. It seems to me that public confidence depends more on leadership and public information based upon the framework that we have.

Therefore, I hope that we do not divide the House on this. I hope that we are all able to agree that confidentiality and privacy are vital, as is public confidence, but that we should not overlegislate and overprescribe. In particular, we should not do so when we are considering Commons amendments at the 11th and a half hour before midnight, and we may later come to regret anything that we now add which creates further problems and further ambiguities.

[Baroness Brinton]

I agree with the last comments of the noble Lords, Lord Lester and Lord Ribeiro. One of the problems that your Lordships’ House has faced with this is the issue of data used for research versus data used for commercial purposes. That becomes a very grey area when some commercial firms are doing pure research. It may be worth your Lordships’ House remembering that even commercial research, whether it is carried out by research departments or within universities and other research bodies, is bound by the strongest ethical codes in which we should all have trust and assurance because they are respected around the world. I would be grateful if the Minister could confirm again—I know he has already done so—that commercial data will not be released so that, for example, an insurance company could raise premiums for a particular group of patients. That is the fear that the public have, rather than the issue of using research data, for which we already have many structures and for which the Health Research Authority is properly the correct authority to make sure that the codes are followed absolutely. There is a difficulty in that pseudonymised and anonymised data can sometimes be undone, but that issue already exists in other research areas and there are plenty of mechanisms to hold researchers to account should they use any of that information themselves. I support the point of the noble Lord, Lord Lester, that we should be content with the Government and that if we start to overprescribe, we will end up unravelling some of the complex but effective arrangements that already exist in the research world.

Secondly and very briefly, I have previously raised with the Minister one very specific point on this issue, and I have asked him this question in writing in advance. Has there been any progress on the timetable for inclusion of primary care musculoskeletal data into the care.data programme? I understand that it was an unintentional omission earlier in the process but, given the number of people in this country suffering from musculoskeletal problems, it would be quite extraordinary if they were not included at an early stage.

[The Earl of Erroll (CB)]

My Lords, I would just like to say a few words about this because I am very involved in the whole world of IT, personal data and identification and the issues around examining the data. One of the things that has become apparent to me is that if care.data is to be effective, public trust must be maintained in it—that is the core problem. It needs to be there so that we can do epidemiological studies, and to do those some information will have to be in the database—such as postcodes, so that you can look for clusters and so on—which will potentially allow people to be identified. Once you compare it and link it across to other databases, if you are looking for someone who is of a certain age, a certain health profile and in a certain area down to 100 yards, it is fairly easy to start working out who they are by cross-linking. However, it may be important to take that risk from time to time, as long as it is done properly. What we do not want if this is to work is for people to feel a need to opt out. You cannot do epidemiological studies if half the population decide they are going to opt out. It is essential that the public trust the database, trust that they will be protected as far as possible and trust that the information will not be misused against them. That is the core to getting this whole thing to work, and if you fail on that you have had it.

The noble Lord, Lord Lester, made a very good point about the human rights stuff being in there and that we have the Data Protection Act and all these things. The Minister also mentioned the Data Protection Act. However, there are some challenges with this. One of them is how you bring a case under the Human Rights Act when a department or the health service is acting incorrectly. It is quite tricky; it does not happen overnight and you would be lucky to stop it. There are wonderful protections in the Data Protection Act but there is a certain amount of vagueness about exactly where the limits are and, worse still, it will all be changed this autumn or winter when the new European Parliament assembles. The proposals nearly got through before the coming elections. Under the digital single market agenda, a new Data Protection Act regulation will almost certainly come out of Europe somewhere towards the end of the year. That will have direct action in this country. We have no control over it as it is a European law that is directly effective in this country, and the Information Commissioner over here will be the person who will enforce it. We will have no say in whether it relaxes things too far or becomes too prescriptive in what it does. We cannot rely on it for certainty in the future

[Lord Lester of Herne Hill]

The noble Earl may not be aware that nothing that comes from Brussels will be able to offend the European Convention on Human Rights or the charter of rights with regard to EU action.

[The Earl of Erroll]

I fully agree with the noble Lord. My challenge with it is how easy it will be to raise a human rights case if we find that the regulation does not comply with something on which we have legislated here and there is a conflict. I accept that it is theoretically possible. I would argue that maybe the way proposed by the noble Lord, Lord Owen, is another way of trying to make sure that we do not have to go to that step.

Briefly, there are some commercial issues with this. One of the changes is that the National Health Service may end up giving away data that are all good for research purposes but which would be very useful for pharmaceutical development and stuff like that. Companies will make a lot of money from information that they get from the data, but I would like to see the NHS benefit. I do not have a problem with it selling the correct data if it is properly controlled for the right research purposes. There will also be some businesses and companies that will make a business out of analysing such data and selling the analysis back to the NHS. It would be useful because the NHS does not have the time or the skill to do that work, but the NHS should benefit from the work and effectively charge for the data that it sells.

There are two reasons why I like the amendment of the noble Lord, Lord Owen. On the Minister’s interpretation of statistics, if we take the more general wording, “the promotion of health”, and it is possible for the food industry to use it to bolster some of their stuff, we have to look at some of the underlying assumptions of the statistics, which can be dangerous things. We need to see how that is done. Even if we go for the newer wording in Amendment 40C, there could be problems in this area. I do not think that anybody is capable of regulating themselves. We always have our own internal biases towards our own objectives and can be regulated only by someone who is looking at it from another point of view, from outside.

We have had the Caldicott guardians for a while. The system works as they are looking after the public interest. They give the public confidence that things are not being misused in their names. Therefore, why are we throwing away a few years of experience of something that works? It is not tampering with the wording of the Bill or playing around with a mish-mash of words; it is merely re-establishing something that already exists. It is a sensible balance. If you cannot check yourself, checks outside the organisation have to exist. Therefore, I suggest that we support the amendment.

Health and Social Care Bill

Lord Lester of Herne Hill Excerpts

Tuesday 13th March 2012 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, in my view, the Human Rights Act applies already to the matters raised in this amendment. The reason for that is fairly straightforward. As your Lordships know, when the Human Rights Act was passed, many functions previously exercised by public authorities were by that time exercised by private individuals and companies. Therefore, the Human Rights Act contained the provision that public authorities should include those in respect of whom certain of their functions are functions of a public nature. That was deliberately adopted to deal with the situation where the public service was in fact given by a private individual or a private company that was not itself a public authority. For the purpose of enforcing the Human Rights Act, bodies that had as any of their functions a public function were responsible in respect of it as if they were a public body.

The case of YL has been referred to. That was not a health case but a case under the National Assistance Act where the local authority had put the lady into a private home. A majority of the House of Lords held that that was not a public function in respect of the private home. It was of course a public function in respect of the local authority, Birmingham City Council, but not in respect of the private home. The Government of the day decided to reverse that decision, not because they thought that the principles of the Human Rights Act should be altered but because they believed that the outcome in that case was wrong. That is what has happened in relation to that type of case, leaving untouched the general principles settled in the Human Rights Act itself.

At the time, the then Government decided to have a consultation on whether the Human Rights Act needed to be amended in some way to deal with these situations. The result of that consultation, so far as I understand, was that nothing needed to be done. The Government put forward an amendment in respect of the YL decision, whose introduction in this House was, I think, in the hands of the noble Baroness, Lady Thornton. In accordance with what the Government thought about the matter she said:

“Therefore, it remains the Government’s view that, in general, the provision of publicly arranged health and social care should be considered a function of a public nature. The Government will therefore continue to treat those exercising such functions as being subject to the Human Rights Act”—

and ever since that has been the position. She went on:

“I reiterate one important point from the letters. It remains the Government’s firm view that independent providers of NHS care under the National Health Service Act are, as the law currently stands, exercising a function of a public nature”.—[Official Report, 22/05/08; col. GC 632.]

That is to say that independent providers operating under the health service were carrying out a function of a public nature, and therefore the protection of the Human Rights Act applied.

In YL, Lord Bingham of Cornhill, who was one of the minority, expressed the matter in this way: he thought the answer to the question in that case was clear. Unfortunately, not everybody sitting in the case thought the same, but that was his answer. He said:

“When the 1998 Act was passed, it was very well known that a number of functions formerly carried out by public authorities were now carried out by private bodies. Section 6(3)(b) of the 1998 Act was clearly drafted with this well-known fact in mind. The performance by private body A by arrangement with public body B, and perhaps at the expense of B, of what would undoubtedly be a public function if carried out by B is, in my opinion, precisely the case”,

which here is covered,

“by Section 6(3)(b)”.

In his opinion, that was the case in YL. Parliament has gone along with that in the amendment and has said that the minority in the YL case were correct. In particular, it has been affirmed that this applies to the Public Health Act.

Some of the situations that have been mentioned by those who support the amendment have occurred in private residential homes. That does not mean that the Act does not apply; it means that for some reason the Act was not observed in these homes. Sadly, that can happen anywhere in relation to the Human Rights Act. It does not mean that it does not apply; it just means that it has not been carried out.

This amendment is supposed to clarify the law. Your Lordships will notice that its heading states that it applies to certain parts of the health service: it is not in any way a universal provision. The heading states:

“Human Rights Act 1998: provision of certain personal care and health care services to be public function”.

It refers to certain services, not all. I submit that that applies to all in the light of the statute as I have explained it.

As I say, the amendment seeks to clarify the law and close a loophole. Unfortunately, when you start to investigate particular cases of this kind, you are apt to get into areas of risk. What happens if a lady who is getting personal care is staying with her daughter and is not in her own private home? This amendment would not apply to that situation. This is a very difficult area. Those who originally framed the Human Rights Act bore that in mind, and the Act was very carefully framed by the Labour Government of that day. My noble and learned friend Lord Irvine of Lairg was extremely careful in selecting the language that was used. As I said, in 2008, when the amendment was made in respect of the National Assistance Act, the position in relation to the health service was very clearly restated. I submit that this amendment is unnecessary, undesirable and risks not covering the whole of the National Health Service provision, as, indeed, it does not attempt to do.

[Lord Lester of Herne Hill]

My Lords, it is a privilege to act as junior counsel to a leader as distinguished as the noble and learned Lord, Lord Mackay of Clashfern. His speech makes it unnecessary for me to speak for long. I respectfully agree with everything that he has said but wish to add a few further points. I am very sorry to disappoint so many of my friends from civil society and their representatives whose eloquent speeches we have heard today. However, I do not think that there is a loophole and, if there were, I do not think that this amendment would remove uncertainty; it would, in fact, increase it.

I am particularly glad to say this in the presence of the noble Lord, Lord Wills. He will remember that he was Minister when I was trying, as a GOAT in the Brown Government—noble Lords will know what that means—to persuade his colleagues that we should do something about the YL problem by way of further legislation. Unfortunately, the previous Government were unable to muster support for that and the present coalition Government have given that general problem to the Commission on a Bill of Rights, on which I serve, as one of the issues to consider in the context of whether there should be a Bill of Rights for the United Kingdom. Therefore, the general problem is on the agenda of that commission. When it reports by the end of this year, the Government can then take stock of what to do about it.

As the noble Lord, Lord Low, indicated in his completely accurate account of some of the background, the origin of the problem lies in the majority decision of the Law Lords in the YL case. I believe that the majority in that case asked themselves the wrong question. Instead of asking how to apply the test in Section 6 of the Human Rights Act to cover private care homes, they said to themselves—and made clear—that it was somehow unfair to place greater obligations upon public sector bodies than private sector bodies. I think that was completely the wrong question and they were very bold in deciding not to follow Lord Bingham and the noble and learned Baroness, Lady Hale, whose speeches I found completely convincing in logic but also, more importantly, completely in harmony with the intentions of the legislation when it was enacted in 1998.

--- Later in debate ---

[Lord Wills]

My Lords, in supporting the amendment, I hope that it might be helpful to your Lordships’ House if I were to provide more background from the previous Government, for whom I shared ministerial responsibility in this area, as the noble Lord, Lord Lester, alluded to. I am privileged to follow him on this, because I have found so often in our past relationships that we share many common objectives but do not always agree on the best way of getting to them.

As we have heard, the problem that the amendment seeks to address arose unexpectedly from a decision in the House of Lords, narrowly decided by a majority of three to two, which removed from vulnerable people basic protections that until then had been widely assumed to be entrenched. The arguments for addressing this problem have been compellingly outlined by other noble Lords who have spoken in this debate. These arguments were clear to the previous Government. As the Minister responsible for human rights, I felt that the YL decision did not reflect what Parliament had intended. I will not go into that because the noble and learned Lord, Lord Mackay, has set out cogently exactly why that is the case. I felt that it would be necessary to legislate to put that beyond dispute.

However, as always, it was necessary within government to agree on the scope of any change and to find an appropriate legislative vehicle. As your Lordships well know, this can often take some considerable time. In 2008, the Health and Social Care Bill, as it then was, was the first opportunity that the previous Government could find to make some progress in putting right the consequences of the YL case. I will come back to this, but here I agree with the noble Lord, Lord Lester, that this was only a start and did not address the more fundamental problem that the case had thrown up. The change in the 2008 Act was narrow in scope. As we have heard, the changes were limited to residential care services. They did not address the status of health services or home care services that were contracted out by the NHS or local authorities, and contracting out is only likely to increase under the legislation being brought in by this Government. The previous Government ran out of time in making a settled decision on how best to go further. Sadly the noble Lord, Lord Lester, had decided to stop being a GOAT, even before that process was concluded.

Therefore, in the light of all this and the YL judgment, I am not sure why the noble Earl seems to believe that all care from all providers is now covered beyond dispute by the Human Rights Act. I should be grateful if the Minister could set out in detail why he believes that advice to the opposite effect—including, as I understand it, from counsel to the HRC—is wrong. Why is that advice wrong?

The Government also appear to be concerned that accepting the amendment might cause legal uncertainty in other areas outside health and social care. I understand these arguments. I heard them many times when I was in government, but such bureaucratic caution could be extended to arguing against ever legislating for anything. However, in this particular case, if the Government are seriously worried, I suggest to the noble Earl that they may be too late. The 2008 Act has already opened that door. The Government’s suggestion that all these services are already covered, whatever the legal status of that commitment by the Government, has opened the door still wider. The Minister would therefore be unwise to rely on their line of argument, if that is what he is tempted to do in resisting the amendment.

[Lord Lester of Herne Hill]

Can the noble Lord explain what is meant by “certain personal care”, which is unclear, and what is meant by a “health care service”, which is not defined in the Bill? He is saying that we need it clarified. I do not understand how that can be done.

[Lord Wills]

I am very sorry; the microphone was not working for the beginning of that. If the noble Lord was asking a specific question that he actually wants me to answer, I would be very grateful if he could repeat it.

[Lord Lester of Herne Hill]

I am asking whether the noble Lord has any answer to my point and that of the noble and learned Lord, Lord Mackay, about how the references to certain personal care and a healthcare service, which is not defined anywhere in the Bill, will resolve uncertainty rather than create greater uncertainty.

[Lord Wills]

I understand that fundamental point. That does not argue against the Minister rejecting this amendment in principle. If he believes that that point in itself will create uncertainty, it is very open to the Government to redraft the amendment and specify it more precisely. I would be very content to support this amendment if the Minister said precisely that—that he would accept the amendment, subject to revising and clarifying that particular point. There will always be some areas of ambiguity in any legislation. That is why the courts exist and that is how the noble and learned Lords in this place have made their careers. That does not concern me very much. I would be perfectly content if the Minister stood up and said he was content to accept an amendment along these lines, subject to clarifying what the noble Lord and the noble and learned Lord have already identified as an issue.

I also understand that the Government are worried that they may be pre-empting the role of the Care Quality Commission and that this amendment may be unnecessary because of the protections that have been offered by that. Of course it has a role to play but that role should never substitute for the fundamental protections offered to the individual by human rights legislation.

As we have already heard, there is a serious problem of flagrant human rights abuses of older people. They need the protections offered by the Human Rights Act, but it is not just a question of the sort of brutal abuses that we have already heard described today. There are protections against those anyway, but I ask the Minister to consider this: the protection of the Human Rights Act offers fundamental dignity and respect to elderly and often very vulnerable people. I think here of the case of an elderly couple who had been together for 60 years or so but were about to be separated by a local authority. From memory, one of them had dementia and the local authority wanted to provide care for that partner in a specialist facility for dementia care, while the other partner went into more mainstream residential care. They had no protection against that. They were not being refused care. They certainly were not being abused in any of the ways that we have heard about already, but they wanted to spend their remaining years together. The Human Rights Act was the only protection that they had. The case was taken to court. They won and were able to spend their last years together. That is the sort of dignity and respect that elderly, vulnerable people are owed. That is the protection that the Human Rights Act offers them, and that is what this amendment seeks to extend.

Even then, there is a further benefit from extending the protection of the Human Rights Act in the way that this amendment wants to do. Important work that was carried out for the EHRC two or three years ago by the noble Baroness, Lady O’Loan, and Professor Klug at the EHRC showed how basic human rights principles of dignity and respect can help transform the culture of public service delivery. The Government could signal the importance that they attach to this by accepting this amendment today.

Throughout the long passage of this Bill, the Minister has been notable for his willingness to listen to and engage with argument and, where he has felt able, to change course. I hope that he will not now seek refuge by pushing this off to the forthcoming White Paper on social care. If media whispers are to be believed, No. 10 does not want that to see the light of day any time soon. Even if it appears, there is no guarantee that this issue will be satisfactorily addressed. Even if it is, it could then be years and years before any appropriate legislative vehicle could be found to make the necessary changes.

I also hope that the noble Earl will resist the seductive invitation from the noble Lord, Lord Lester, to leave this to the Commission on the Bill of Rights. Distinguished as it is, and diligent as its endeavours have been, if we believe the Daily Telegraph, it is already split three ways on many of the issues that it has to address. I hope that the Minister will consider that he would not be wise to leave this important decision to a commission whose outcome is, at best, not yet certain.

[Lord Lester of Herne Hill]

I simply say to the noble Lord that he should not believe everything he reads in newspapers.

[Lord Wills]

Believe me, I try extremely hard not to do so, but I noticed that the noble Lord did not deny the account given in the Daily Telegraph. I hope that it is wrong.

--- Later in debate ---

[Lord Lester of Herne Hill]

For the record, I deny the account given in the Mail, in the Telegraph, by Dr Pinto-Duschinsky on the BBC, and anywhere else.

[Lord Wills]

I am extremely glad to hear that. I hope that the journalists concerned have noted that important denial, which I am grateful to hear from the noble Lord.

If this issue is delayed, we could be looking at years and years when vulnerable elderly people will be denied that fundamental protection. When I was Human Rights Minister, I was certain that we needed to go further than the Health and Social Care Act 2008 in tackling this problem. We ran out of time. The Government now have the time and the vehicle to do what I wish that the previous Government had been able to do. I hope that the Government will seize this opportunity and accept the amendment.

--- Later in debate ---

[Lord Wills]

Can the Minister clarify one point? Is his objection to the amendment a drafting one—in other words, in an ideal world, were there more time, could a draft be found that would meet the various objections that he has just outlined—or is it one of principle, and is he saying that no such amendment to cover this loophole could conceivably ever be drafted?

Perhaps I may take just a little more advantage of the Minister’s time. He mentioned earlier that, in the Government’s judgment, were a case along the lines described ever to come along, the court would find in favour of the Government’s judgment. If that were not to be the case, can the Minister say whether in those circumstances the Government would be prepared to consider an amendment along the lines of that put forward by the noble Baroness, Lady Greengross?

[Lord Lester of Herne Hill]

Before my noble friend replies, perhaps I may have a go as well. The problem is that the more specific the amendment, the more the Latin maxim applies that says that, by expressing something, you are deemed to exclude something else. Therefore there is a great danger in ambiguous specificity.

[Earl Howe]

My noble friend expresses the position exactly. In answer to the noble Lord, Lord Wills, if a court in the future were to arrive at a judgment that all of us here would consider adverse, of course the Government would intervene. However, in our view, it is now highly unwise at this point to try to frame an amendment to put these matters beyond doubt in the way that the noble Baroness seeks to do because any attempt to do so is almost certain to lead to ambiguity and doubt about the applicability of the Act in other areas. That is the point. Of course I can pick holes in the drafting of this amendment, but that is not the central issue. The issue is the wider one to which I alluded earlier.

Health and Social Care Bill

Lord Lester of Herne Hill Excerpts

Wednesday 8th February 2012 Lords Chamber

[Earl Howe]

My Lords, as my noble friend has correctly reminded us, the next debate will give us the opportunity to discuss the package of amendments designed to clarify the Secretary of State’s accountability for the health service. I recently completed a series of meetings with Peers from across the House to understand their concerns about this and related issues. Thanks to the efforts of so many here today, including the noble Baroness, Lady Thornton, I am pleased to say that we have sufficient consensus to table a series of amendments on this matter. I very much look forward to discussing them when we reach subsequent groups.

Amendments 3 and 4, tabled by the noble Baroness, Lady Thornton, seek to reinstate the duty to provide. I do not wish to dwell too long on what I have said on previous occasions, but the noble Baroness will be aware that we are retaining the wording of the NHS Act 1946, where appropriate. For example, the Secretary of State retains his duty to,

“continue the promotion in England of a comprehensive health service”,

and his duty to,

“secure that services are provided”.

The reason for our removing the 1946 duty on the Secretary of State to provide services himself is that it fails to reflect the reality of the way that NHS services are delivered. In general and for many years, the Secretary of State has not himself exercised functions of providing or commissioning services. The functions are delegated to SHAs and PCTs. Under the Bill, however, this function will be conferred directly on a dedicated NHS Commissioning Board and CCGs.

Indeed, as my noble and learned friend Lord Mackay of Clashfern has pointed out previously, there has never been a straightforward duty to provide services. The requirement was framed as a duty to,

“provide or secure the … provision of”,

services. In practice, Ministers or the NHS bodies responsible for exercising the Secretary of State’s functions have usually exercised the second option, securing the provision, rather than the first, actually providing. The Secretary of State—that is, the Department of Health—has not provided NHS services directly for many years. Our policy is that the Secretary of State should neither provide nor commission NHS services.

It is clear from these amendments that the Opposition are harking back to a centralist, top-down approach. They sometimes say that they want clinical commissioners, but these amendments contradict that. They would not create a system of clear responsibility but instead one where Richmond House was always right. That model has been tried to the point of exhaustion and has been found wanting. In contrast, the Bill establishes a framework in which the Secretary of State no longer has the powers to provide or commission NHS services. Instead, those functions are conferred on other bodies in the system. An amendment to Clause 1 to impose a duty on the Secretary of State to provide services—or a duty to exercise his functions so as to provide them—is simply not consistent with that framework.

When this issue has been debated previously, one of the main arguments against losing the duty to provide was that it would result in reduced accountability to Parliament for provision. Although that has never been our intention, we have, as I said, tabled amendments to put beyond doubt the matter of ministerial accountability. Given that the Secretary of State does not provide services directly, and that the amendments we will debate shortly clarify beyond doubt the Secretary of State’s continued accountability to Parliament, it is not clear what an amendment to reinstate the duty to provide would achieve in practice.

If these amendments are about ensuring that the Secretary of State takes the steps required to secure the proper provision of NHS services, I simply reassure the noble Baroness that the Bill already does this. It requires the Secretary of State to,

“exercise the functions conferred by this Act so as to secure that services are provided”.

That is a strong and onerous duty, sufficient to ensure that the Secretary of State discharges his responsibility for the NHS.

In explaining these amendments, the noble Baroness repeated her call for the Bill to be withdrawn on the grounds that nobody supports it. I acknowledge that there are opponents of the Bill but she must also acknowledge that many in the medical community and in the wider public support our reform programme. We know that clearly from the listening exercise last year when many thousands of people contributed their views. Those views about the principles of what we are trying to achieve came through loud and clear. In the main, the concerns revolved around implementation. We believe that we have addressed those concerns in amendments to the Bill and in other announcements that we have made that are non-legislative in nature. We continue to believe that our plans for modernisation are essential if we are to put the NHS on a sustainable long-term footing. I will explain a few ways in which that is true, and will try to do so in clear, layman’s language without resorting to departmental technical speak.

Without the Bill, Ministers would remain free to continue to micromanage the NHS. There would be no legally enforceable duties to tackle health inequalities as the Bill introduces such duties for the first time in this country. There would be no legally enforceable duties on quality improvement because it embeds quality improvement throughout the system. There would be no duties on NHS organisations to involve patients in decisions about their care. Failing organisations would continue to be propped up using taxpayers’ money—the Bill tackles that problem in a creative way. Governments would be able to prioritise the private sector over the NHS—the Bill ensures that such behaviour is prohibited. Patients would continue to lack the means to hold the NHS to account because the Bill gives patients real power by establishing HealthWatch so that the interests of patients and the public can be championed throughout the NHS. Withdrawing the Bill would cause disruption and chaos at a time that the NHS most needs certainty about the future. As has been said today, the NHS is already in a state of change. That cannot be sustained indefinitely because it puts additional strain on management capacity and creates additional cost.

[Lord Lester of Herne Hill]

Does my noble friend agree that one of the vices in the amendment is that it would encourage judicial review proceedings and legal uncertainty? I say that as somebody who has taken advantage of the old wording to bring successful judicial review proceedings in Northern Ireland. The advantage of what we now have in the Bill is that it will not place judges in the position of seeking to run the health service, instead of Parliament, Ministers and the health authorities themselves.

[Earl Howe]

I defer completely to my noble friend, who is right to point out that one thing that we wish to avoid is a charter for a legal action and judicial review. I believe that we have avoided that because of the way in which accountability is now described in the Bill—or will shortly be described, when the amendments are passed. It is accountability primarily through the Secretary of State to Parliament. I thank the noble Lord for his observations.

Health and Social Care Bill

Lord Lester of Herne Hill Excerpts

Wednesday 2nd November 2011 Lords Chamber

[Baroness Scotland of Asthal]

My Lords, I hesitate to intervene on the noble Earl, who knows I hold him in the highest possible esteem, but I think he is now treading on some contentious legal issues. Bearing in mind the wonderful consensus that we have now reached, I would just ask him to consider whether, at this stage, some of those issues are really helpful because the noble Earl will know that the Secretary of State does, by his servants, agents or otherwise, provide services and, indeed, there have been times when there has been a pandemic when the Secretary of State has had to make such provision. These are contentious issues which I am sure could intrigue us for many hours, but since we have happily come to the conclusion that we have had a surfeit of such happiness and wish to go forward, I gently say to the noble Earl that this might be a moment when we could swiftly do that.

[Lord Lester of Herne Hill]

My Lords, I would not have intervened otherwise, but I respectfully disagree with what the noble and learned Baroness, Lady Scotland, has just said. I am finding it very helpful to listen carefully for this reason: it seems to me that the Secretary of State must have a duty to secure the provision, as has been said by the Minister, for the purposes of giving effect to our international treaties, including those on human rights. Therefore, what he is saying at the moment is very important to me in trying to see how one can get wording that will include that as well.

[Earl Howe]

I am grateful to my noble friend. I apologise to the Committee. I had thought that it would be helpful if I commented on each amendment for the sake of the record so that, going forward, the Government’s view of each amendment would be clear.

Public Bodies Bill [HL]

Lord Lester of Herne Hill Excerpts

Wednesday 9th March 2011 Lords Chamber

Moved by

[Lord Lester of Herne Hill]

175ZA: Before Clause 20, insert the following new Clause—
“Restrictions on Ministerial powers
(1) The modification or transfer of a function by an order under the preceding provisions of this Act must not prevent it (to the extent that it continues to be exercisable) from being exercised independently of Ministers in any of the following cases.
(2) Those cases are—
(a) where the function is a judicial function (whether or not exercised by a court or tribunal); (b) where the function’s exercise involves enforcement activities in relation to obligations imposed on a Minister;(c) where the function’s exercise otherwise constitutes the exercise of oversight or scrutiny of the actions of a Minister.(3) Provision made by an order under the preceding provisions of this Act must be proportionate to the reasons for the order.
(4) In this section “enforcement activities” means—
(a) the bringing of legal proceedings or the provision of assistance with the bringing of legal proceedings;(b) the carrying out of an investigation with a view to bringing legal proceedings or to providing such assistance; or(c) the taking of steps preparatory to any of those things.”

[Lord Lester of Herne Hill]

I believe that Charles James Fox became known as the dinner bell because when he got up to speak everyone had dinner. This is the second time this week that the House has had the misfortune to hear me after midnight, so I hope that I do not become known as the nightcap as a result. However, it reminds me of the barrister who once asked an Irish judge for time and the judge replied, “Thou hast exhausted time and trespass now upon eternity”.

This amendment is tabled in substitution for Amendment 175. It has support from all sides of the House. I am extremely grateful to the Bill team, the Government’s senior legal advisers and my noble and learned friend Lord Mackay of Clashfern, who have enabled an amendment to be produced to give effect in clear terms to Amendment 175. I am also grateful to the noble Lord, Lord Pannick, who managed a successful revolt on the first day in Committee to obtain the House’s approval of our paving amendment. I express thanks to the noble Lord, Lord Hunt of Kings Heath, and the Minister, without whom what is now proposed would not have come to pass before the Bill left the Committee. Three scrutiny committees have also played a vital role: the Constitution Committee, the Delegated Powers and Regulatory Reform Committee and the Joint Committee on Human Rights, of which I am a member. Ministerial clearance of the amendment came too late to be able to advise those committees before the amendment was tabled yesterday late afternoon.