Care Bill [HL]

Lord Hope of Craighead Excerpts

Wednesday 7th May 2014 Lords Chamber

[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.