European Union (Withdrawal) Bill

Debate between Lord Mackay of Clashfern and Baroness Whitaker

Wednesday 14th March 2018 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, I completely agree with what the noble Lord, Lord Chidgey, just said. Noble Lords might be forgiven for thinking that in the exhaustive debate on the previous group of amendments the cause of democracy was well and truly vindicated. However, the defects these amendments seek to rectify are just as much of an onslaught on democracy, for the reasons so well set out by the noble Lord, Lord Lisvane, and the noble Baroness, Lady Smith of Newnham. I therefore hope that the Government will take them into account in a total redraft of Clause 9.

[Lord Mackay of Clashfern (Con)]

My Lords, first, I hope that “appropriate” will disappear in any event, and that it will be replaced with “necessary”. This clause appears to be drafted especially to deal with a situation where, once the withdrawal Bill is passed, a number of important things have to be done before exit day. I hope that the House of Commons will have the opportunity to consider these. The reference here is quite clearly to something that is required in implementing the withdrawal agreement. We have only to listen to the amendments that were dealt with this morning to know the tremendous complexity that this withdrawal Bill is bound to have—I only hope that it will have it and that we will have an agreement that will be incorporated in a withdrawal agreement Bill, which will deal with these complications. However, if they are dealt with, it is quite obvious that quite a number of things will have to be dealt with speedily that will be brought into effect on exit day. For example, where the authority controlling a particular line of business is no longer effective because of the withdrawal agreement, it may be necessary, to preserve that, to have some form of regulation that sets up an alternative, so that there is a control; for example, with regard to the things that were mentioned this morning, food safety.

It is therefore possible that in some situations the regulations will require modification of existing Acts of Parliament. The substance of this clause is therefore of importance, and we may have to consider it in a bit more detail. I hope that the Minister, when she comes to reply, will be able to give us some examples of the kind of thing that can happen. However, it would be dangerous not to make provision in case that kind of thing happens. The withdrawal agreement Bill will be complicated enough, so if we can make some preparation for it, that would be of benefit.

European Union (Withdrawal) Bill

Debate between Lord Mackay of Clashfern and Baroness Whitaker

Committee: 5th sitting (Hansard - continued): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Baroness Whitaker (Lab)]

My Lords, the noble Lord, Lord Lang, pointed out that we are a bit thin on the ground for such an important set of amendments, but the Minister should know that there is behind us an army. I have had more representations on Clause 7 than on any other part of the Bill—representations from national organisations, human rights organisations, advocacy organisations, legal organisations, professional organisations, and from individuals. There is very widespread civic concern over these clauses, and the Government should heed it and accept these amendments, which have such widespread support also in your Lordships’ House.

[Lord Mackay of Clashfern (Con)]

My Lords, the existence of these powers in the Bill has created an apprehension in a lot of people that the Government are proposing to use the powers in some way to undermine something that is valuable to them. It is therefore important—apart altogether from the argument that examines the detail—that we examine this carefully. The noble Lord, Lord Wilson of Dinton—with his background of great success as a civil servant, no doubt contributed to by his early experience as a lawyer—has moved the amendment in a way that has made it extremely clear. It is quite clear to me that necessity is a better test on which to leave these powers than the discretionary test of “appropriate”. It is not absolutely right that discretion is not subject to judicial review, but at least an objective test is certainly more likely to lead to successful judicial review if it is transgressed.

We have to remember the huge task involved in trying to put these two systems together; the European system, which has been here for 45 years, has been working alongside our system and kept separate from it over all that time. That is by no means an easy task. Indeed, what we already discussed with regard to Clauses 2 and 3 illustrate that. It is difficult and time consuming, and we must ensure that the solutions we suggest to the Government are practical and will enable this to be done in a reasonable time so that the statute book can be right on Brexit day.

I anticipate that the test of necessity will be an easier one to apply for those entrusted with the power than the test of what is appropriate. The latter involves an element of judgment, which is not always easy to exercise; whereas if it is obvious that these two bits do not fit together, it is necessary to do something about it. As the noble Lord, Lord Wilson, said, it is not necessary to circumscribe the solution. The argument that necessity suggests not only that the amendment is required but also what particular amendment is required stretches the matter a little far. So long as it is necessary to do it, that is a sufficient test for our purpose, and then it is for the Minister to do his best to sew these two pieces together.

I am somewhat alarmed at the survey by the noble Lord, Lord Wilson, of the people entitled to use this power, and the Minister may well have something to say about that. However, there is a lot of work to do, and we do not want to overwork the Ministers with necessary adjustments when they ought to be doing something else. There is certainly plenty to do between now and Brexit.

In addition, it has been said that this is surrendering the power of Parliament to the Executive. To an extent that is true, but Parliament retains a veto in respect of every single regulation, either by a negative or an affirmative resolution. It is true that we do not want to have thousands of these if we can possibly avoid it, apart from anything else. But there is an element of control there. How practical that would be is, I think, doubtful. There is an urgent need now to circumscribe these powers so that they work properly and effectively but not excessively. As I said, a lot of people have worries about human rights, equality rights and a whole lot of other rights. Sometimes people have spoken in conversation or in observations to the press or whatever, which does not represent the Government’s policy. This helps to inflame the idea that the Government are using these powers to take away all that has been so dearly won. I do not think that is true, but we should try to remove the possibility that this idea can be represented.

Health and Social Care Bill

Debate between Lord Mackay of Clashfern and Baroness Whitaker

Tuesday 13th March 2012 Lords Chamber

[Baroness Whitaker]

My Lords, I declare an interest as a member the British Institute of Human Rights advisory board, and I apologise for my failing voice. I simply want to add to the very eloquent testimony we have heard so far that surely common sense suggests that an organisation which carries out a public service function that is mandated by a public body and takes public money for that function should be bound by the responsibilities of public service. If it is not, fellow citizens whose rights are abused—and as we have heard from the noble Lord, Lord Low, and others, this is not uncommon, particularly in old-age care—will have a lesser right of redress. Furthermore, and almost more importantly for the prevention of abuse, providers of this level of care will have little incentive to train individual carers in those notions of dignity and respect that we call human rights.

We have the Government’s response on the record in a letter to the noble Lord, Lord Lester, on 27 February, that all providers of publicly funded health and social care services should consider themselves bound by the Human Rights Act. The Government think that a court would find that the provision of publicly funded personal care at home is a function of a public nature. This is not the same as being legally binding and, perhaps more importantly, the references to “personal care only”—that is to say the all-important Article 8 right to private and family life—are not in the picture at all. So I hope that the Government will accept this amendment.

[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.