Care Bill [HL]

Lord Mackay of Clashfern Excerpts

Tuesday 9th July 2013 Lords Chamber

[Lord Rix]

My Lords, as we are approaching Statement time, I will be brief. I want to support the noble Baroness, Lady Browning, in her Amendment 88G, which advocates the need for advocacy. In the world of learning disability, advocacy is often totally essential. Information and advice which is not proportionate, frankly, can be quite useless. Advocacy may well come from parents and carers, but sometimes it can be the wrong advocacy. An independent advocate is essential to many people with a learning disability, so I wholly support this amendment.

[Lord Mackay of Clashfern]

My Lords, I have spent most of my life as an advocate, so I have to say how important advocacy is. I want to say a few words in relation to the point made by the noble Baroness, Lady Gale, about continuing NHS care. The point is important in that Clause 22, as the boundary between health and social care, is vital.

I would have thought—I may be wrong and obviously the noble Baroness will correct me—that it ought to be the general practitioner who advises a patient as to whether they need continuing NHS care. During our deliberations in the Joint Committee there was quite a lot of discussion about the question of continuing NHS care, and it is obvious that there is some conflict of interest. The local authority providing the care may wish to have it provided by the NHS since that would be free and not its responsibility, so the boundary between the NHS and local authorities is particularly relevant in this connection.

At the moment, I do not see how it can be for the patient to claim continuing NHS care. The GP should be able to say to the patient that they need it and that should be sufficient for it to be provided. The likelihood is that a patient would have great difficulty in assessing for himself or herself whether continuing healthcare was needed, so it must be a matter for professional advice. I think that the advice that we are talking about in this context is advice about local authority services, not about the services that the NHS can provide. However, as I say, the boundary between the two is vitally important. I hope that the point made so eloquently by the noble Baroness, Lady Gale, arising from her own inquiry, will be looked at with a considerable degree of care.

[Baroness Greengross]

My Lords, I hope that noble Lords will forgive me, but I forgot to speak to one of the amendments that is relevant to this group; that is, Amendment 86C. It is about people with dementia who have had a diagnosis. I know that the noble Earl will share the Prime Minister’s view and those of all of us who have looked at the number of people who receive a diagnosis of dementia. We now want to ensure that many more are diagnosed, and diagnosed early.

However, there are many reports that people diagnosed with dementia and their carers feel terribly abandoned after they have had the diagnosis. The Bill’s emphasis on access to prevention services and information and advice for people, particularly if their needs have not yet reached the threshold of eligibility for social care, is welcome. But there are no specific prompts to ensure that people receive the information they need at the time when it is most useful. The risk is that, although local authorities have set up information and advice services, the information does not reach people at the right time. A post-diagnosis information pack tailored to specific long-term conditions should be given to every individual who is diagnosed with one of those conditions. It would provide access to tailored information about the support that is available to them, and it would enable them to cope with the challenges of living with a long-term condition. The pack would provide information on the likely impacts of dementia and contain core information on national and local services. I think that this would be an important aspect of providing the right information and advice at the right time.

NHS: Mid-Staffordshire NHS Trust

Lord Mackay of Clashfern Excerpts

Monday 24th June 2013 Lords Chamber

[Earl Howe]

The question surely is whether my right honourable friend is saying things that are true. My judgment is that he is very near the truth, if not spot on. Most people will ask themselves whether it is the Department of Health or the press which oversensationalises things. I think I know the answer to that.

[Lord Mackay of Clashfern]

My Lords, in considering the way forward in inspections, might not prominence be given to local inspection systems? After all, a national system cannot be in all the places at once, whereas local people can see what is going on in their local area. There might be something to be said for strengthening that aspect of the inspection system.

[Earl Howe]

My noble and learned friend makes an important point. Of course, that will be the virtue of local Healthwatch, which will be the eyes and ears of the local community in a particular area. We have also strengthened the role of governors of foundation trusts, whose job it will be to have an equally up-to-the-minute view of their organisation’s performance.

Care Quality Commission: Morecambe Bay Hospitals

Lord Mackay of Clashfern Excerpts

Thursday 20th June 2013 Lords Chamber

[Earl Howe]

My Lords, I recall the noble Lord, Lord Patel of Bradford, making those points very powerfully some years ago when we debated the Bill that created the CQC. He makes an extremely important point. I think that we can take it from the statements of David Prior yesterday that the decision taken in 2009 to take a generalist approach to inspection was a mistake. The CQC’s inspectors are in one sense specialist inspectors who are trained and supported to carry out their role, which they do to the best of their ability. However, requiring inspectors to have oversight of a wide range of service types from slimming clinics to acute hospitals, and indeed mental health establishments, has spread expertise too thinly.

We are clear that we must now work with the CQC to create a much more specialist approach to inspection, including on mental health. I think that the three new chief inspectors we are appointing will help to do that. It is not the whole answer, because they need to be supported by clinical expertise and by the people who are experts by virtue of their experience in care services. However, I will take away the noble Lord’s idea of a chief inspector of mental health. I must be honest with him that we have not discussed this, but I am sure that we now should.

[Lord Mackay of Clashfern]

My Lords, I wonder if my noble friend would take account of the suggestion of the noble Lord, Lord Hunt of Kings Heath, that legal advice can sometimes prevent people from doing the right thing. I was very sorry to hear that. I think that good legal advice should in fact produce the result of people doing the right thing. The second point I want to make relates to the claims against the health service for negligence. These have been quite substantial over the years. Could the CQC look at that area and examine the grass-roots standard of care given to patients?

[Earl Howe]

My Lords, the deputy Information Commissioner is quoted as saying that confidentiality and data protection issues should not stand in the way of disclosure where disclosure is clearly in the public interest. I completely agree with that. That is why our instant reaction yesterday, when we were told by the CQC that legal advice had said that the names of the individuals had to be kept confidential, was to challenge that. I am pleased that that decision is to be reversed and the names will be released.

On my noble and learned friend’s second point, most certainly yes: the CQC should take a view about matters relating to negligence. However, I would add that apart from the CQC, we now have the new Healthwatch bodies, part of whose function will be to make sure they provide good soft intelligence on what is happening in NHS and social providers in their local areas. The Healthwatch bodies can then act as the eyes and ears of the CQC, which, with the best will in the world, cannot be everywhere at once. In terms of the future—this is clearly a longer-term agenda—I hope we will have a system that is better equipped to pick up this kind of incident should it ever occur again.

Care Bill [HL]

Lord Mackay of Clashfern Excerpts

Tuesday 21st May 2013 Lords Chamber

[Lord Mackay of Clashfern]

My Lords, it is a great privilege to follow the noble Baroness, Lady Campbell of Surbiton, who speaks on these matters with a particular authority and profound experience. I should mention my interests: I am a vice-president of the Carers Trust, a member of Barnardo’s and I have honorary fellowships from three of the medical royal colleges.

I am extremely grateful to the noble Earl, Lord Howe, for his explanation of the Bill. I also congratulate the department and the Ministers there as quite a number of changes have been made to the draft Bill and yet they have managed to get it in so early in this Session. One of the difficulties that that may entail is that the funding arrangements may not be fully known at the beginning of our consideration of the Bill in Committee.

I was privileged to be a member of the Select Committee engaged in pre-legislative scrutiny of the Bill and I want to acknowledge the great expertise of my fellow committee members and the excellent chairmanship of Paul Burstow, who was the Minister before he found himself chairing this committee.

In the many submissions that the committee received there is one that goes very deep into this situation. It is from the King’s Fund, suggesting that the time may have come for a reappraisal of the arrangements between social care and healthcare. As I went through the Bill, I appreciated from time to time that the division between these two areas affects integration. There was a great desire for integration and I share that. One of my lawyer friends connected with the committee said that as a lawyer he had some difficulty with integration. One can see why that is. The King’s Fund has raised a huge question about whether some change should be made. No doubt the noble Lord, Lord Sutherland of Houndwood, will have something to say about the matter later, with his expertise in this area.

The Bill sets out in Part 1 a very welcome and wonderfully wide principle of well-being as its object for individuals. I am thankful for the alterations, and indeed the widening of that principle which was made on the recommendations of the Joint Committee. However, I echo what has already been said—that without adequate funding the anticipation of what the Bill will achieve will be considerably higher than the realisation, which can only be damaging for those who promote the anticipation in the first place.

The Joint Committee advised that the duty to have regard to this well-being principle should be incumbent on the Secretary of State when he is making regulations under the Bill. I must say that that seemed to me, and I am sure to the rest of the committee, to be eminent common sense. Sadly, however, in preparing the Bill, the Government did not feel that that should happen. In the explanation given in answer to our recommendation 22, the Government say:

“We do not agree that the Bill should require the Secretary of State, when making regulations or issuing guidance, to have regard to the general duties of local authorities under clause 1”.

As regulations are intended to give effect to the obligations of the local authorities under Clause 1, one would think that in making regulations it would be common sense to have regard to the principles on which the local authorities should work. Here is the Government’s answer:

“Local authorities are responsible and accountable for social care. We believe that creating new duties for the Secretary of State would distort these clear lines of accountability”.

I have some difficulty in understanding that. The object was not to create new duties for the Secretary of State but to assist him in performing the duties that he has to make regulations. It seems to me that to attempt to make regulations in relation to this matter for local authorities, which are bound by the general principle, it would only be sensible that the person making the regulations should have regard to the general principle.

I welcome the Bill very much: it has great opportunities, subject to what I have just said about the funding. I shall comment on only one or two particular points because there are many speakers and there will be many matters that people want to raise and I do not want to create unnecessary repetition.

Clause 22, as it is now, defines the difference between healthcare and social care. The Joint Committee commented on that but the department has enlarged the clause; it is bigger than it was before, but I am not sure that it is much clearer. In particular, it provides that if a registered nurse is to be employed, the consent of some commissioning board—usually the national one, I think—is required. I would have thought that something could be done about that without requiring continual reference to the commissioner.

I will not say much about the Dilnot clauses because generally they came later than our committee could have seen, but I agree with the point that the eligibility and cost arrangements nationally must be important for the Dilnot cap to work. It ought to be the same fit whether in London or Cumbria. That would require a degree of uniformity across both cost and eligibility that might be quite difficult to attain.

The noble Baroness, Lady Campbell, has already mentioned the human rights point. The Joint Committee suggested that this should be put in, and I adhere to this matter being looked at in Committee in due course. The point I particularly wish to stress is the situation of young carers. The Joint Committee recommended that this should be dealt with in the Bill. The answer is that it is inappropriate that children should receive adult care. However, that was not the point the Joint Committee sought to make. Its point was that the Joint Committee considered that there can be a relationship between the care provided for the adult and the child providing that care.

One of the important factors is that the child’s obligations of care, which are often undertaken cheerfully and voluntarily, do not cause damage to the child. The imposition and undertaking of undue burdens of care for adults, which may be given out of love, affection and loyalty to the adult, may be damaging to the child. I—and I think the Joint Committee as a whole—believe that this is an important factor to be put into this Bill. The regulations and legislation about care of children are contained in five different statutory provisions, starting with the Children Act 1989. There have been others since and I gather that there are about six different provisions of guidance on these matters. The children are surely entitled to some degree of simplification, just as the adults are, by this Bill.

Another point I shall touch on is the question of guidance. The Joint Committee recommended that guidance should be by way of a code, which should be available and endorsed by Parliament. However, the Government have said: “This is not really necessary. It is not quick enough; things change so quickly that we need to change them all the time, therefore it is not appropriate in this situation to have a code”. We expect a lot of social workers and often they are the people who take the burden of complaint when something goes wrong. It cannot be right to have a lot of different pieces of paper for social workers to know what the guidance is—and when the guidance changes the pieces of paper just increase. They do not always seem to destroy the previous pieces of paper, so the difficulties for people trying to carry out this work are increased by that system.

I remain of the view—which we can discuss in Committee—that guidance should not be ad hoc pieces of paper, but a code, which can last for a reasonable time. After all, the statutory provisions have lasted some time. There are many other matters that one could raise, but I do not want to find myself shortening the time available for others.

National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013

Lord Mackay of Clashfern Excerpts

Wednesday 24th April 2013 Lords Chamber

[Lord Davies of Stamford]

We have had a very thorough and memorable debate on this important subject, and that is not a bad thing. It is striking that the House should be so full on this occasion, because the NHS is very close to all our hearts and to the hearts of the whole of this country. We had a very powerful speech by the noble Lord, Lord Owen, and against that we have had attempts by a spokesman on behalf of the coalition, and by the noble Lord, Lord Walton, to whom we always listen with great respect on these occasions, trying to reassure us that things are not quite as alarming as they appear to be—not quite as alarming as the BMA, which the noble Lord, Lord Walton, once presided over in a very distinguished fashion, appears to think.

Before we accept those blandishments and reassurances, we need at least four very specific assurances from the Government tonight. One is on the matter very well raised by my noble friend Lord Hunt. Clause 5 is extremely weak in providing any protection against the absoluteness of the requirement for CCGs to go out to tender. It simply says that they do not have to do so if in fact there is no other party able to provide the relevant service. As the noble Lord, Lord Hunt, very clearly said—and he is absolutely right—in a large urban area such as London or the West Midlands, there will always, or almost always, be somebody else who is technically capable of delivering the service, so that is extremely weak protection. I am not very reassured by what the noble Lord, Lord Walton, said on that subject. It is no use saying “We’ve got guidance”. We are now passing the law, and guidance cannot override the law. What is more, when we have changed the law you can be absolutely certain that an awful lot of lawyers and some very aggressive companies will be waiting to use this law to try to force open a business opportunity.

[Lord Mackay of Clashfern]

Can the noble Lord say what sort of clause he proposes instead of Clause 5 that would be consistent with the European legislation and the regulations made here under the previous Government in implementing it?

[Lord Davies of Stamford]

I am in favour of scrapping all these regulations completely and simply voting them down tonight. That is my simple answer. I put the onus on to the noble Lord—if he can come up with a suggestion which reassures me, so much the better.

My second concern is over the future of networks. I was lobbied over the weekend by one or two doctors in Lincolnshire and I undertook to speak about this matter. One of them served as a junior doctor in Newcastle under the noble Lord, Lord Walton, and was full of affectionate and very admiring memories of the way in which he ran his department. Nevertheless, those doctors are deeply concerned—as are so many across the country—about the impact on networks. We have all read the handouts and papers from the BMA on this subject. I notice from the way in which the regulations are drafted that the protections regarding networks and integration in Regulations 2 and 3(4) in no way override the requirement in Regulation 5 to go for tendering. That is not a sufficient protection. They simply say that there is one criterion, and that is not good enough. If the Government want us to take these regulations seriously, I expect them to provide some specific reassurances on that.

My third concern is this. We all know that the ratio of fixed to variable costs in healthcare is extremely high. To use a technical term, the operational gearing of healthcare, particularly in the secondary sector, is very high. That means that if you take out any particular activity from a general hospital, the existing overheads will then fall on a reduced range of activities and therefore a reduced range of revenues. So you will make unviable—or are likely to make both financially and possibly technically unviable—other services which are being delivered in that particular hospital.

Under these new regulations, will it be possible for a CCG to take the view that it does not want to tender either service, which, if it took it away from the existing provider, would make that provider unviable not merely for that service but for the whole range of services currently being provided? In other words, will it be possible for a CCG to take the view that it is not in the interests of the patient in that particular area to run down or destroy a local hospital or a local unit? Will the regulations provide any protection for a CCG which, in the public interest, decides not to tender out for that particular purpose?

My final concern is one on which, again, I should like a specific reassurance from the Government—it can be in a yes or no form. We live in an international digital age. We know that medical services, even remote surgery, can be provided not merely here but anywhere around the world. If electromagnetic waves travel at speed c, that merely means that you have something like a 20th of a second delay if you are operating from India. A 20th of a second may not be crucial to that operation in terms of security.

Therefore, we may well face the possibility of tendering out services all around the world. It may be that a CCG will quite legitimately decide that the Massachusetts General Hospital is the best place to go for a particular type of surgery. That is fine but, again, if a CCG decides—or, more likely, if the national Commissioning Board decides—that it is in the interests of this country to keep a capability here, will it be protected in taking that decision against Monitor or against the competition laws which will then operate?

An even better example, perhaps, than remote surgery is imaging. Whether it is computerised thermography, ultrasound or magnetic resonance, these things can be read anywhere around the world in real time 24 hours a day, seven days a week. It may well be that very good offers will come in from India to provide this particular service. In those circumstances, if we went for those offers in a particular region—perhaps in the whole country—we would not have any radiologists left at all. They would all have gone somewhere else in the world. Will the national Commissioning Board and the CCGs be protected if, in the interests of keeping what they regard as an essential capability in this country, they decide that it is not appropriate to tender out a service or to accept a tender, however financially and technically attractive that tender might be?

Social Care: Funding

Lord Mackay of Clashfern Excerpts

Monday 21st January 2013 Lords Chamber

[Earl Howe]

My Lords, I might have hoped that the noble Baroness would welcome my initial Answer, which at least gives her the certainty that an announcement will be made before the Budget. As the noble Lord, Lord Warner, said, that is progress and, I hope, welcome progress. However, I take the point that the noble Baroness makes and the sooner we can introduce the certainty that she desires the better.

[Lord Mackay of Clashfern]

My Lords, first, is it possible that these clauses will be available during the time that the Joint Committee is still working? Secondly, am I right in thinking that Dilnot has nothing to do with healthcare but has to do with what we usually call social care?

[Earl Howe]

Yes, my Lords, my noble and learned friend is right. The Dilnot proposals focus primarily on social care although there are always knock-on effects for the health service. In theory, it will be possible for us to produce clauses covering the Dilnot proposals for scrutiny by the Joint Committee but I am not in a position to give that undertaking at present.

Health and Social Care Bill

Lord Mackay of Clashfern Excerpts

Monday 19th March 2012 Lords Chamber

[Lord Fowler]

My Lords, I intervene briefly. I listened carefully to what the noble Lord said, but I am not sure that this is just a matter of practice, as he said at the beginning—although by the end he was coming very firmly round to the view that he was an all-out opponent of the legislation itself. I think that there are questions of principle here as well, and not just the principles that he enunciated.

I am not a member of the “keep everything secret” brigade—rather the opposite. If we had taken more notice of the Information Commissioner’s report in 2006 on the unlawful trade in professional information, we might not have had to wait until 2012 for the inquiry into phone hacking, and the rest. I also argued against the 30-year rule for the disclosure of Cabinet papers as wrong and unnecessary and remain critical of the previous Government’s response to that, which was to reduce it to 20 rather than 15 years, as recommended. I think that had more to do with disclosure on Iraq than it did a matter of principle.

I also believe that when it comes to the publication of risk registers, other issues need to be taken into account, not least the relationship between Ministers and civil servants. I suggest that this is why no Government in the past has agreed to a policy of publication. In my view, Ministers are responsible for the decisions taken, and it is for civil servants to advise. That is their skill and their role, and anyone who has ever put a Bill through Parliament knows well enough that if they are any good, civil servants do not simply sit there saying, “Yes, Minister”. They debate and argue with the Minister and warn of the risks as they see them. It is one of the very good features of the relationship between Ministers and the Civil Service in this country.

The problem with publishing all the risks, from the possible to the highly improbable, is that the relationship itself seems to be brought into some doubt. Civil servants, whether they liked it or not, would be dragged into the debate. We all know exactly what would happen: the risk register would be used to undermine the measure being proposed. The aim would be to show that Ministers were in conflict with their own staff. The opponents of a Bill such as the one before us today could say that not only was the BMA against the Bill—it is not exactly news that the BMA is against any new measure put forward since 1947—but also, by selective quotation, that the Civil Service itself had profound doubts. Whether one liked it or not, the Civil Service would be brought into controversy and people would try to portray conflict. I do not see, frankly, how that is in the public interest.

The party opposite has not shown any interest or inclination in the past to go down this road as a general policy line. This would simply place new obstacles in the way of legislation and change. I wonder how a risk register could have been used at the inception of the health service in the 1940s. Doubtless it would have pointed to the problems implicit in such a massive reorganisation and to the risks that costs could escalate. Not every civil servant would have shared ministerial confidence that a better health service would mean improved health and therefore a reduction in costs.

It comes down to the fact that in these cases there is a matter of judgment on the part of Ministers, having listened to the arguments and the advice of the Civil Service, in putting their proposals before Parliament. I entirely understand the later amendment of the noble Baroness, Lady Thornton, which seeks to deny a Third Reading to this Bill. That is perfectly straightforward: she sets out the reasons for it. I do not happen to agree with her, as she knows, but I do not have any doubt about her right to do this. Frankly, however, I cannot see the value of this amendment seeking delay on grounds that I do not believe to be in the public interest.

[Lord Mackay of Clashfern]

My Lords, since Second Reading in this Chamber, this House has carried out a very thorough public scrutiny of this Bill. In doing so, it has had the advantage of the expertise of practitioners and former practitioners with great experience from across the medical, surgical, nursing and social work professions, and also those with experience of administration of those services. Further, it has had the advantage of former health service Ministers and of the skilled, eloquent probing of the Bill’s provisions by the opposition Front Bench: the noble Baroness, Lady Thornton, the noble Lords, Lord Hunt of Kings Heath and Lord Beecham, and the noble Baroness, Baroness Wheeler. We have also had the expertise of the noble Lord, Lord Owen, himself not only a former Health Minister and writer on health matters, but also a director of a large American pharmaceutical company for quite a number of years. In addition, as the Bill has proceeded, we have received detailed briefing from many people currently working in the health and social work services.

The scrutiny was completed last week. In that situation, we would grossly underestimate the breadth and depth of that scrutiny if we accepted that a register, prepared 15 months ago by civil servants in the privacy of the Department of Health before the Bill was introduced and before the very large number of amendments were made to it, could add substantially to our understanding of the Bill. Therefore, in my submission, at this stage this amendment to the Motion is inappropriate. At the very best, it refers only to the tribunal’s decision; it does not refer, except indirectly, to the register. In my submission to your Lordships, the register prepared so long ago in privacy by civil servants cannot be expected to add substantially to what we know already.

[Baroness Jay of Paddington]

My Lords, as the House knows, I chair your Lordships’ Constitution Committee, which has produced two reports on the Bill. As everyone has said, the Bill is enormously complicated and very detailed, and we have been very detailed in our consideration of it.

I support the amendment of the noble Lord, Lord Owen, because the noble Earl the Minister has, as we all know—and we have all paid due respect to him on this—been enormously helpful to the House’s consideration and the production of amendments. The Constitution Committee itself produced very important amendments on the Secretary of State’s role on this. All this has demonstrated the very sound, elaborate and good processes by which this House and its Select Committees, as well as the many experts, as the noble and learned Lord, Lord Mackay of Clashfern, has just mentioned, have contributed to the debate. We have proceeded on this in an extremely sensible, measured and considered way.

The Government have been very generous and the Minister has been particularly generous in accepting amendments and entering into discussion. Having listened to the noble Lord, Lord Owen, I think he is saying that the House should continue to follow the very good process that we have had in formulating our opinions on the Bill. We have taken time and have deliberated very carefully. The House has listened to many views, including those of its Select Committees and of its many expert Members. As the noble Lord, Lord Owen, said, we have also listened to many people outside.

Over the weekend, I have been particularly amazed at the last-minute contributions from, for example, the Royal College of Physicians. The noble Lord, Lord Owen, mentioned one online petition, and I have received another from the organisation Avaaz, signed by 110,000 people. The cumulative figures suggest that in the past few days more than 500,000 people have signed online petitions specifically relating to the amendment of the noble Lord, Lord Owen, not to the more general point.

I say to the House that we have followed the processes very well indeed in relation to this Bill. We have agreed to disagree on some things, and the Government have accepted amendments where they have accepted the arguments. In following the processes, which this House has created very successfully over the years, we have used our best efforts with regard to the Bill, and we can lose nothing by continuing to follow those processes and, finally, by taking note of the tribunal’s report, as the noble Lord, Lord Owen, has suggested.

Health and Social Care Bill

Lord Mackay of Clashfern Excerpts

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.

[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.

Health and Social Care Bill

Lord Mackay of Clashfern Excerpts

Tuesday 13th March 2012 Lords Chamber

The noble Earl may offer some kind of review, but, frankly, the time for reviews and for voluntary action has gone. All that could have happened, but it has not, and we have an immediate problem of standards and patient safety. My noble friend Lord MacKenzie said that the amendment is proportionate and is about patient safety. It deserves support.

[Lord Mackay of Clashfern]

Before the noble Lord sits down, perhaps I may raise two points with him from his great experience of the health service. First, is it appropriate for the fundamental provision to be an amendment to a statutory order rather than for it to be done through primary legislation? Secondly, on delegation, the amendment states that,

“a health care support worker shall be an individual whose work is routinely delegated to them by a registered nurse or midwife”.

Could not a healthcare support worker have an independent assignment from the employer? In other words, it would be not be delegation from a registered nurse but direct employment on that basis. I would like help on that if possible.

[Lord Hunt of Kings Heath]

My Lords, when I was in government, I was always very wary of interventions from the noble and learned Lord when he required help on an answer that I had given. I should probably let the noble Baroness, Lady Emerton, answer for herself, but perhaps I may make two points. First, the noble Baroness has been very inventive in using this Bill as a way of raising these concerns. As a number of clauses, to which we shall come shortly, relate to regulation, her amendment is quite in scope. Secondly, this is very much a debate on the principle. I have no doubt that, if the noble Baroness were to press the amendment to a vote and was successful, the noble Earl, Lord Howe, would come back at Third Reading or in the other place with a tidying-up amendment which dealt with the issues that the noble and learned Lord has raised, respecting the intent of the House but ensuring that the statute was as tight as it could be. It is probably not for me to answer for the noble Baroness.

Health and Social Care Bill

Lord Mackay of Clashfern Excerpts

Wednesday 7th December 2011 Lords Chamber

[Lord Warner]

My Lords, I hesitate to intervene but it is a Motion of Regret, and one element of the regret the House would express would be regret for the position the noble Earl has been put in. Much of our debate so far on this Bill has been on the basis of how it would work in practice and how things would happen on the ground. I suspect there is a lot of information about how things would work in practice in the risk register. My concern is that the noble Earl is being put in a very difficult position and at risk of misleading the House—I am not saying he has; I am not saying he has not—as he has been put in a position where, because he is unable to use that information, he may be forced to hedge his bets to reassure the House on some of the practical issues. I hope that is not the case and he has not been put in that position, but we need to be sure and I hope he can give us some reassurances.

[Lord Mackay of Clashfern]

My Lords, the decision of the commissioner is certainly well argued, but under the existing system it is subject to appeal to the tribunal and the Department of Health intends to exercise the right to appeal. In that situation, in my submission, the Minister is entitled to give this House the best information he has. There is no question of failure to release this report in any way leading to the noble Earl, Lord Howe, misleading this House. I do not believe that is at all likely.

The noble Lord, Lord Pannick, developed a cogent argument, but the question he raises in relation to what is to happen here today is a different question from that which arises on the appeal. Unfortunately, although it is a different question, it is very closely related because, if the document is to be released now, the question of an appeal to the tribunal is evacuated because the document will already have become public, which is the issue in the appeal. Therefore, I believe that my noble friend Lady Williams of Crosby has suggested the best way out of this business: the Government and the other parties to the appeal should do what they can to have the appeal expedited. I do not believe that the tribunal is in any worse position than a court of law in getting on with the job quickly and that is the best course because if the tribunal endorsed the commissioner’s decision then that solves the matter.

[Lord Pannick]

Would the noble and learned Lord agree that if the tribunal dismisses the appeal it would then be open to the Government to take the matter to the Court of Appeal?

[Lord Mackay of Clashfern]

Certainly. The Court of Appeal has a very great record in dealing with matters quickly.

[Noble Lords]

There will be delay.

[Lord Mackay of Clashfern]

Delay is something that the courts can control. That is one of the functions they have to try to do expeditiously when an expeditious judgment is required. I believe the solution proposed by my noble friend is the best one: namely, that an expedited decision should be sought from the tribunal.

[Lord Richard]

I want to ask the noble and learned Lord a question. If there is an expedited appeal and it is going to run its course, does the noble and learned Lord think we should continue with this Committee stage or wait until we see the result of the appeal?

[Lord Mackay of Clashfern]

I assume that if the decision was available in time for the Report stage, the House would have ample opportunity to consider its relevance to the matters in issue in the Bill.

[Lord Richard]

What would happen if it were not available at the beginning of Report stage?

[Lord Mackay of Clashfern]

I hope that it would be possible for the decision to be available at the beginning of Report stage.

[Lord Martin of Springburn]

My Lords, I have listened carefully to what all noble Lords have said. I was interested in what the noble Lord, Lord Pannick, had to say. He often advises me on legal matters, so perhaps he can advise me further. If the information comes to us as an open House, it will be public information. Therefore, to say that it comes before noble Lords means that it becomes available to everyone.