Health and Social Care Bill

Debate between Lord Wills and Lord Lester of Herne Hill

Tuesday 13th March 2012 Lords Chamber

[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.

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[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.

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[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.