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2.19 pm
RAF: Fukushima Accident
Question
2.30 pm
To ask Her Majesty's Government what role the Royal Air Force Regiment played in the aftermath of the Fukushima Daiichi nuclear power plant accident.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever): My Lords, I am sure the whole House will wish to join me in offering
13 Mar 2012 : Column 198
A three-man RAF Regiment radiation monitoring team, along with an MoD health physicist, deployed to the British embassy in Tokyo from 21 March to 21 April 2011. They conducted air and soil sampling around the embassy and local area and monitored equipment and vehicles for contamination to advise and reassure embassy staff. The team also devised plans to protect UK personnel working at the embassy in the event of a further release from Fukushima.
Lord Lee of Trafford: My Lords, I should like first to join these Benches in the tributes to all those who died in the IED massacre. Perhaps I may also express on behalf of this House our condolences to the relatives of those Afghans who were brutally killed in the recent horrific shooting.
My understanding is that the team that went to Tokyo was part of the chemical, biological, radiological and nuclear wing of the RAF Regiment. Is this not yet another excellent example of where service personnel are called on to help in a serious civilian situation of a non-military nature?
Turning now to the major role of the RAF Regiment, may I ask my noble friend whether the regiment is training Afghan forces in Afghanistan in their major role of airfield protection so that they are able to take over when we withdraw our main combat forces?
Lord Astor of Hever: My Lords, I join my noble friend in remembering the Afghan civilians who were murdered the other day. I also agree with him that the RAF Regiment's ability to deploy rapidly and assist in the way that it did is an excellent example of military aid to the civilian authority. The unique skills of the RAF Regiment go far wider than just on the battlefield. As for mentoring the Afghans, members of the RAF Regiment have mentored Afghan police from Helmand's provincial response company, put them through basic and advanced training and deployed with them in a mentoring role over the past six months. Detailed planning for the redeployment of personnel from Afghanistan is ongoing, and it is too early to say when the RAF Regiment will return.
Lord Rosser: We would wish to join the Minister in offering our sincere condolences to the families and friends of the nine members of our Armed Forces who have recently lost their lives in Afghanistan while in
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Could I ask the Minister whether the British nuclear industry has been able to learn any lessons from the knowledge gained from the RAF involvement in the aftermath of the Japanese nuclear power plant accident?
Lord Astor of Hever: My Lords, safety is always our number one concern for the British nuclear power industry. Fukushima changed the energy debate around the world. Questions were rightly raised about the extent and safety of nuclear power-people wanted to know what happened and whether it could happen again. Our chief nuclear inspector, Dr Mike Weightman, undertook a full lessons-learnt analysis on behalf of the Department of Energy and Climate Change, and my noble friend Lord Marland reported the findings through a Written Ministerial Statement on 11 October last year. Copies of the Weightman report were placed in the House Library.
Lord Stirrup: My Lords, the Royal Air Force Regiment is an example of good practice that is admired and to some extent envied by our US colleagues. In that regard, it contributes to the relationship that was so lauded in today's edition of the Washington Post by President Obama and the Prime Minister. However, that same edition of the Post warned that the relationship could come under strain because of the defence expenditure reductions that have been made in this country. In his announcement of the SDSR outcome, the Prime Minister personally committed himself to an increase in defence expenditure in the years beyond 2015. Can the Minister say if that personal commitment remains today?
Lord Astor of Hever: My Lords, the noble and gallant Lord is trying to put words into my mouth that I would rather not say with the Budget coming up next week.
Lord Jopling: My Lords, I am sure the Minister is aware that NATO has annual exercises in doing exactly what the Royal Air Force Regiment has done in this case. In the past those NATO exercises have had minimal involvement from the United Kingdom. Will the Minister be good enough to have a look at all of this again and see if we could play a more positive part in these annual exercises in future?
Lord Astor of Hever: My Lords, my noble friend makes a very good point. I give him my word that I will take it back to the department and see what I can do.
Baroness Harris of Richmond: My Lords, the RAF Regiment is the acknowledged military expert force for CBRN capability. Will my noble friend assure me that there are no plans to reduce its numbers either now, when its work for this country is absolutely critical, or in the foreseeable future?
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Lord Astor of Hever: My Lords, my noble friend makes a very good point. I also pay tribute to her for her very strong support for the RAF Regiment over many years. We have announced changes to the number of RAF Regiment field squadrons from 2015 onwards, at the end of operations in Afghanistan, and wider reductions in the overall size of the Royal Air Force that enable a rebalancing of its structure. Two force protection wing headquarters and two field squadrons will draw down over the coming years. However, even with this drawdown, we will continue to have a robust and effective force able to support all future operational requirements, including CBRN protection.
Viscount Slim: My Lords, is the noble Lord aware that some years ago, the noble Earl, Lord Attlee, and I spent some hours during the night with the Royal Air Force Regiment in Afghanistan observing its infantry and patrol tactics? It showed the very highest level of operational expertise, and the Government should in no way weaken the Royal Air Force Regiment.
Lord Astor of Hever: My Lords, I very much take the noble Viscount's point and quite agree that the RAF Regiment is playing a very important role. I was in Afghanistan the week before last and saw for myself the important role that it is carrying out.
Public Disorder: Compensation
Question
2.39 pm
To ask Her Majesty's Government what proportion of victims of the 2011 summer riots are still awaiting compensation, and what action they propose to take to deal with the situation.
The Minister of State, Home Office (Lord Henley): My Lords, around 90 per cent of businesses and individuals affected by the riots were insured and the majority have received full or part payment. For those without insurance, the Government set up a claims bureau to manage their claims under the Riot (Damages) Act 1886. As of February 2012 over half of all valid uninsured claims have been settled.
Lord Naseby: My Lords, the position on dealing with the domestic claims seems to be pretty reasonable. On the business side, however, the position is not quite so healthy. In particular, is my noble friend aware that the Riot (Damages) Act 1886 requires the police to clear with the insurers that it was technically a riot before full payment can be made? To the best of my knowledge that has not happened yet. Secondly, there is no provision in the Act for payment for business interruption. Finally, the businesses that have suffered greatly have to seek planning permission for rebuilding. Can my noble friend ensure that the police act under the 1886 Act; that some help is found for those who have suffered from business interruption; and that
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Lord Henley: My Lords, my noble friend has asked quite a number of questions. Although I can assure him that we have urged the police authorities to ensure that compensation is paid as swiftly as possible to all those who are entitled, we want to make sure that it is paid only to those who are entitled. He is right to address the point that the 1886 Act-which, obviously, was passed some time ago-does not cover business interruption. That is why we think that there should be a review of the Act, and we will consider all options in due course. As I stressed earlier, we believe that some 90 per cent of those who suffered, whether businesses or otherwise, had insurance, and as likely as not that insurance would have included business interruption. The 1886 Act comes from another era when these matters were not considered. As for the planning point, I will take that on board and consult colleagues in the Department for Communities and Local Government.
Baroness Sherlock: My Lords, I declare an interest as a member of the Riots Communities and Victims Panel. The Minister has just told the House that 90 per cent of individuals making claims to insurance companies have been paid, and the Association of British Insurers has a similar figure-85 per cent-for small businesses, and yet only half of those claiming under the RDA have been paid. Can the Minister account for the difference? Does he think there is any truth in the rumour that the reason there is such a big difference is that police authorities are setting such a high standard for the evidential basis and the paperwork, which is way in excess of that required by commercial insurance companies? Does he think that that is causing the delay?
Lord Henley: My Lords, the noble Baroness makes a valid point, and I pay tribute to the work that she did earlier on these matters. However, it is also important to look at the fact that those who were not insured were the sort of people who probably did not have adequate records about what they had in their shops-and I am thinking particularly of shops-and one therefore needs to conduct the loss-adjustment process very carefully. As she will know, people often make what one might describe as overgenerous claims when they do not have the appropriate records of what they had in their particular shop or business, and those things need to be looked at carefully. However, as I made clear in my response to my noble friend, it is important that we make sure that the police deal with these matters as quickly as possible. That is what we have been urging them to do and that is why we have set in motion a number of measures to speed up the process.
Lord Elystan-Morgan: My Lords, can the Minister assure the House that in the review of the 1886 Act not only will great effort go into defining the categories of claimants and types of claim but anxious thought will be given to the most central and existential question of whether it should be police authorities that bear the
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Lord Henley: My Lords, when I first answered this Question I was keen to emphasise that it was an 1886 Act. For that reason, the noble Lord is right to emphasise that we are in a very different world from 1886-it is now 125 years on from that date. All I can say about the review is that we will consider all options for reform. Perhaps I may give just one example. The 1886 Act, quite obviously, did not look at damage to motor vehicles, for the very simple reason that they did not exist in 1886.
Lord Cotter: My Lords, setting aside the issues about loss adjusters and suchlike, did not the Government announce in August that there would be £20 million to support small businesses and help them with minimum bureaucracy? Although these issues are being followed up, is it not very unsatisfactory that, in the mean time, this fund has not been dipped into sufficiently quickly? Exactly how much has been paid out under that fund?
Lord Henley: My Lords, I cannot answer my noble friend's point absolutely but I can say that the Government have made payments of over £71 million to police authorities in respect of both operational costs and riot damages claims. Obviously, as I have been trying to make clear in the course of this Question, we are concerned about the speed which this has been dealt with. That is why we have been urging the police authorities to deal with these matters as quickly as possible. I can give an assurance to my noble friend that, on top of that, my right honourable friend the policing Minister has seen representatives of both the policing authorities and the insurance companies to make sure that these matters are dealt with as quickly as possible.
Planning: Ancient Woodland
Question
2.46 pm
To ask Her Majesty's Government what plans they have to improve ancient woodland protection in the final version of the National Planning Policy Framework.
Earl Attlee: My Lords, ancient woodland and the substantial contribution it makes to our environment is very important to the coalition Government. We will reflect this importance in the final version of the National Planning Policy Framework, but noble Lords will understand that I cannot anticipate its content before it is published.
Lord Redesdale: My Lords, I thank the Minister for that reply. However, there is a great deal of concern that the caveat placed on the value of economic development as a reason for granting planning permission
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Earl Attlee: My Lords, the first point is that no economic value can be put on ancient woodland, because it is irreplaceable. The consultation draft framework maintained a strong protection but, as with current policy, it did not entirely close the door on any loss of ancient woodland. For example, a loss might be justified where a local highway authority wants to make a road junction improvement to save lives. However, as we are carefully considering all the responses on this policy, I am not going to speculate about the content of the final framework.
The Earl of Clancarty: My Lords, will the Minister take note that the destruction of ancient woodland is not just a threat but a reality as, appallingly, we have lost 111 such areas in the past 10 years? Will he also take serious consideration of the wider picture of the potential loss to development of large areas of important woodland through council sell-offs, such as, indeed, the recent decision by Somerset County Council to sell a sizeable area of the Quantocks, a decision which many hope will be reversed-land which Wordsworth and Coleridge once roamed across and the public have had access to for a very long time?
Earl Attlee: My Lords, the noble Earl refers to incidents affecting ancient woodland. That was an incident of ancient woodland being taken but I suspect that it does not necessarily mean that the whole of the wood has been taken. When ancient woodland is sold, perhaps by a local authority, it does not alter the need to obtain planning consent for any development; and as noble Lords know, it is very difficult to get planning consent if it involves taking ancient woodland.
The Lord Bishop of Newcastle: My Lords, trees and woodlands are enormously important to us and to the future of our world, and the tree planting scheme to mark the Diamond Jubilee is yet one more example of that. However, can the Minister assure me that within the National Planning Policy Framework there will be proper protection for undesignated trees and woodland areas and an encouragement to create more community-owned woodlands in this country?
Earl Attlee: My Lords, I am sure that there will be protection for undesignated woodland. However, the point is that there is very strong protection for ancient woodland because it cannot possibly be replaced or replicated.
Baroness Royall of Blaisdon: My Lords, as the Minister will know, the provisional ancient woodland inventory of England and Wales was prepared by the
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Earl Attlee: My Lords, I am satisfied that the NPPF will protect ancient woodland.
Lord Tope: My Lords, the Minister has said that he will not speculate on the content of the final version. Can he tell us when our speculation will end, when it will be published and when we can judge for ourselves whether the final version of the NPPF gives equal weight to longer-term environmental and social concerns, as it undoubtedly will to more immediate demands for economic growth?
Earl Attlee: My Lords, the short answer to my noble friend is: the end of the month.
Lord Brooke of Alverthorpe: Like other noble Lords I have been waiting patiently for the noble Earl to respond to the other question from the noble Lord, Lord Redesdale, about whether he will contribute to the fund that has been established.
Earl Attlee: My Lords, I am a classic impoverished Earl.
Lord Hylton: My Lords, in the present economic situation, would the Minister not agree that British woodlands and forests should be developed in the most commercial way possible while making allowances for ancient woodland? Does he also agree that such woodlands can be treated as quite small areas, rather like sites of special scientific interest?
Earl Attlee: My Lords, all noble Lords understand the environmental benefit of ancient woodland, but it has some commercial benefit as well. Interestingly, hardwood production in the UK amounts to half a million tonnes and total softwood production is 9.5 million tonnes.
Lord Phillips of Sudbury: My Lords, I should perhaps declare that I own a small tract of ancient woodland in south Suffolk. Given the increasing recognition of the revitalising influence of woodland in an increasingly denatured culture, are the Government sympathetic to trying to encourage the laying down of new deciduous woodland?
Syria
Question
2.53 pm
To ask Her Majesty's Government what plans they have for providing humanitarian aid and security assistance to help relieve the unfolding crisis in Syria.
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The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford): My Lords, we continue to fund humanitarian organisations working in the region to provide help to those in need and have already given £2 million to that effect. We have also increased core funding significantly to humanitarian agencies this year to cover their ongoing work. The stabilisation unit operated jointly by the Foreign and Commonwealth Office, the Department for International Development and the Ministry of Defence is looking at what future support Syria might need from the UK and the international community to make a political transition to an open, democratic and stable state. It has also organised the recent deployment of an expert team to the region to collect evidence of human rights violations and atrocities committed by the Syrian regime.
Lord Chidgey: I thank my noble friend for that full reply. However, following reports on Australian television by the director of Human Rights Watch, Nadim Houry, confirming that the Syrian army is now sowing landmines along its borders directly in the path of fleeing refugees, threatening yet another atrocity, will the Government redouble their efforts to persuade other nations, particularly Russia, China and Turkey, to try to press Assad into allowing independent observers into Syria? As an extension to my noble friend's Answer, will he give me more detail on timing in relation to deploying the stabilisation unit and security resources when the transitional period has started?
Lord Howell of Guildford: My noble friend is quite right. Access for independent observers or, indeed, access for humanitarian relief is the problem in this very dangerous situation. We have been working hard at the United Nations. My right honourable friend the Foreign and Commonwealth Secretary has been working extremely hard and taking the lead in trying to persuade Russia and China to take a more positive and co-operative attitude in all aspects, including, of course, getting a more effective UN resolution forward which would, we hope, increase the heat and pressure on Mr Bashar al-Assad. That is what is going on at the moment.
As for the mine situation, I have seen the reports of mines being laid. Syria is not-regrettably but perhaps not unsurprisingly-a signatory to the international prohibitions against land mines. This is yet one more area where we will increase to the maximum volume and ability our pressures on the Syrian regime to behave in a less uncivilised and more understanding way.
Lord Hannay of Chiswick: The Minister referred to the human rights mission that has been sent to the region. Would the Foreign Office classify decisions by the Syrian regime to prevent humanitarian access to the areas that need it most as a breach of international humanitarian law which may, one day, need to be prosecuted by the International Criminal Court?
Lord Howell of Guildford: That is certainly possible. The position vis-à-vis the International Criminal Court is that the commission of inquiry of the UN, as I think the noble Lord will know, clearly stated its concerns
13 Mar 2012 : Column 206
Baroness Symons of Vernham Dean: My Lords, is not the difficult thing that human rights abuses are being carried out every day? Does the noble Lord have any information about the appalling report that boys over the age of 11 are being arrested and face a very uncertain and horrible future in the city of Homs? Does he agree that, without the courageous reporting of people like the late Marie Colvin, we do not have the information on a day-by-day basis? We have it only retrospectively. What we need to know is what is happening while it is happening. Can the Minister give us any information about what our colleague, the noble Baroness, Lady Amos, has been able to say following her visit to President Assad?
Lord Howell of Guildford: I have to agree with almost all that the noble Baroness says. Our friend, the noble Baroness, Lady Amos, has, indeed, been there and did get some access to Baba Amr. She has reported back to the United Nations in very grim terms about what she found; practically every building had been destroyed. As for the other news we get- inevitably not directly because of the access problem and the fact that not a single journalist alive remains in the area-that may well be true. There are clearly horrific events and horrific murders and atrocities taking place. Not every one can be corroborated, but it is unquestioned that there are evil doings almost beyond the power of words being conducted in the name of the Syrian Government and perhaps on the opposition side as well. These are revolting events and in due course I hope all responsible will be held to account for them properly.
Lord Wright of Richmond: Can the Minister confirm that the Government still support the efforts by the former United Nations Secretary-General, Mr Kofi Annan, to bring a peaceful solution to the crisis in Syria? I am delighted to hear from the noble Lord that we are channelling our assistance through international organisations and humanitarian organisations. Does he agree that we should also be sure that any assistance given to Syria does not complicate the mission of Mr Kofi Annan?
Lord Howell of Guildford: My Lords, I am sure that that approach is right, but the difficulty is, as Mr Kofi Annan himself has found in his most recent discussions with Bashar al-Assad, that the Syrian President seems very reluctant to move from his present policy of giving certain reassurances while the violence and killing carry on. That is the difficulty. As the noble
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Baroness Falkner of Margravine: My Lords, does my noble friend agree that in bringing Russia to the table it is important to recognise that Saudi Arabia's and Qatar's attempts to arm the rebels will only prolong the conflict, not help to bring it to an end? Does he further agree that Russia's long-standing animosity to Saudi Arabia, not least as regards Afghanistan, will not make it come to the table unless we reduce the arms and hostility going into the conflict from other players?
Lord Howell of Guildford: My noble friend may be right. The Arab League as a whole has taken a strong lead. Some members of the Arab League-my noble friend mentioned Qatar and Saudi Arabia-say that they want to go further and provide arms. We are not sure at this moment whether they are doing so. They may have a case for taking that action in particular areas. However, our general approach is the same as that of my noble friend. We believe that the best course is to try to get peaceful transition, to get both sides to desist from the killing, and particularly and obviously to get the Syrian Government to desist from their atrocious and murderous attacks on communities in Homs and other cities. That must be the approach. Pouring in arms on a large scale would certainly not help.
Companies Act 2006 (Amendment of Part 23) (Investment Companies) Regulations 2012
Industrial Training Levy (Engineering Construction Industry Training Board) Order 2012
Industrial Training Levy (Construction Industry Training Board) Order 2012
Postal Services Act 2011 (Disclosure of Information) Order 2012
Postal Services Act 2011 (Penalties) (Rules for Calculation of Turnover) Order 2012
13 Mar 2012 : Column 208
Public Bodies (Abolition of the National Endowment for Science, Technology and the Arts) Order 2012
Employment Tribunals Act 1996 (Tribunal Composition) Order 2012
Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012
Apprenticeships (Alternative English Completion Conditions) Regulations 2012
Motion to Refer to Grand Committee
3.02 pm
Health and Social Care Bill
Bill Main Page
18th Report from the Constitution Committee.
22nd Reports from the Constitution Committee.
Report (7th Day) (Continued)
3.03 pm
Schedule 19 : The Health and Social Care Information Centre
258A: Schedule 19, page 424, line 17, leave out "the exercise of its functions" and insert "any function exercisable by it to be exercised"
Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, I shall speak also to the other 41 amendments in this group, some of which, I stress, are minor, technical or consequential.
Part 9 establishes the information centre in primary legislation, setting out its powers in relation to the collection, analysis, publication or dissemination of information. Several noble Lords, as well as the British Medical Association and the NHS Future Forum, have expressed a keen interest in the need to ensure an appropriate balance between the protection of patient information and the use and sharing of information to improve patient care. For example, I recall that the noble Baroness, Lady Wheeler, stressed the need to provide,
She is, of course, absolutely right. We are sensitive to these concerns.
Your Lordships have already approved amendments that raise the threshold required for the board and CCGs to disclose personal information. Government Amendments 268, 280 to 282, 284, 285 and 287 to 289, which are supported by the BMA, further strengthen
13 Mar 2012 : Column 209
Government Amendment 272 limits the circumstances in which the information centre may require provision to it of confidential personal information. Government Amendments 280, 281, 282, 284, 285, 287 and 288 clarify when dissemination by the information centre of information which identifies or enables the identity of an individual to be ascertained would be permitted, and when the information centre may be directed to disseminate or not to disseminate information. Government Amendment 289 would require the information centre to publish a code of practice for health or social care bodies or anyone providing publicly funded health or social care on how to deal with person-identifiable or other confidential information.
We believe these amendments strike the right balance between appropriately protecting an individual's confidential personal information and ensuring that the wider benefits of safely and securely sharing information, which include improvements in the quality of services and treatments, can be realised. There are also a number of minor and technical amendments to improve the drafting of the clauses and to ensure that they can be effectively exercised in practice.
Government Amendments 291A to 291D and 297A to 297D are intended to provide a further degree of future-proofing to ensure that the exact requirements for the future development and delivery of informatics systems to support the health and care sector can be met. Last week, my right honourable friend the Secretary of State for Health highlighted our approach for delivering informatics systems in the future. We intend that the board and the Secretary of State will be supported in the management of informatics systems and services by a lean delivery organisation that will take over from NHS Connecting for Health from April 2013. We are currently looking at where these delivery functions will sit, with the information centre as an option to house some or all of this work. These amendments would enable provision to be made so that the centre could exercise the functions of the Secretary of State or the board in relation to delivering these systems. The amendments will also help to future-proof the legislation so that the provisions can support a more flexible, agile approach to delivering informatics systems in the future. I beg to move.
Baroness Wheeler: My Lords, I welcome and support the government amendments in this group. In Committee, I stressed our strong support for placing the Health and Social Care Information Centre on a firmer statutory footing and replacing the current special health authority. The centre, male-midwived by my noble friend Lord Warner, as he put it, was set up by the Labour Government
13 Mar 2012 : Column 210
The government amendments go a long way towards meeting the concerns expressed by me and other noble Lords on safeguarding patient confidentiality and the need to place a greater emphasis on obtaining consent from the patient when this information is collected or published. The information centre now has to obtain consent before it publishes information that could identify a person.
The new clause in Amendment 268, in particular, which establishes what type of information is confidential and how the information centre must deal with information, is a major step forward, as is the new clause outlined in Amendment 289 requiring the information centre to develop a code of conduct on confidential information.
The noble Earl quoted me from Committee stressing the need for safeguards that are strong enough to protect patients. As that is the first time that I have ever been quoted by the Government, I think I can legitimately claim credit for the subsequent amendments. The extra safeguards to protect patients-for example, detailing when the Secretary of State can request information and who can request the information centre to collect information, and ensuring that consent must be obtained where the information is deemed confidential-are all vital to ensure public and patient confidence that information will be properly acquired, stored, used and published.
We also strongly support Amendment 268, limiting the range of bodies that can request that the information centre collect personal or confidential information to principal bodies, such as Monitor, CQC or NICE, which are able to make a mandatory request because they have obtained consent and have the power under statute.
On the code of conduct, I hope that the noble Earl will assure us that there will be widespread consultation on the development of a code. I should also be grateful if he could reassure the House that the code will provide further detail about the proposed mechanisms that the centre will need to obtain the consent of patients. It is obviously important that we get this issue right. What will be the process for obtaining consent where people are unable to provide it-for example, patients who are unable to make decisions for themselves under the Mental Capacity Act 2006?
Finally, the Government's Statement in the House on 6 December on UK life sciences announced their intention to share much more patient information with the private and independent sectors in an anonymised form to aid medical research and development. I believe that there are to be discussions with the BMA and other appropriate organisations on that matter to ensure strict safeguards that will instil public confidence. We particularly want to be clear how the Government will judge to which companies they will make that information available and what criteria they will use in those circumstances. I should be grateful if the Minister could update the House on progress on that issue.
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Earl Howe: My Lords, I am very grateful to the noble Baroness for her broad welcome for this group of amendments. She is absolutely right: they improve the provisions for patient confidentiality and, at the same time, the sharing of information where that is appropriate. I also welcome her endorsement of our approach to the information centre, which, as she rightly said, was set up under the previous Government and, we believe, has proved its worth in the mean while.
She asked a number of questions. On the first one, relating to consultation, yes, we will work with a range of groups in developing the code and will publish proposals in due course. On her other questions about the mechanisms for consent and obtaining consent from patients who are unable to give it because of mental incapacity, I hope that she will allow me to write a letter to save the time of the House but also because I want to get my answers absolutely correct, and I fear that I would leave important things out if I tried to answer her now.
Baroness Wheeler: My Lords, before the noble Earl sits down, what about the point relating to UK life sciences and the information given to the private and independent sectors?
Earl Howe: I apologise; I did not mention that. I will cover that point in my letter as well.
Clause 253: Powers to direct Information Centre to establish information systems
260: Clause 253, page 243, line 30, leave out from beginning to second "it" and insert "the Secretary of State considers that the information which could be obtained by complying with the direction is information which"
261: Clause 253, page 243, line 38, leave out from "if" to "it" in line 39 and insert "the Board considers that the information which could be obtained by complying with the direction is information which"
Clause 254: Powers to request Information Centre to establish information systems
263: Clause 254, page 244, line 13, leave out from beginning to "it" in line 14 and insert "A request may be made under subsection (1) by a person only if the person considers that the information which could be obtained by complying with the request is information which"
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264: Clause 254, page 244, line 20, leave out from "Chapter" to "it" in line 23 and insert "a request under subsection (1) is a mandatory request if-
(a) it is made by a principal body, and
(b) the body considers that the information which could be obtained by complying with the request is information which"
266: Clause 254, page 244, line 42, after "to" insert-
"(i) the code of practice prepared and published by the Centre under section (Code of practice on confidential information), and
(ii) "
268: After Clause 254, insert the following new Clause-
"Requests for collection under section 254: confidential information
(1) A request under section 254 is a confidential collection request if it is a request for the Information Centre to establish and operate a system for the collection of information which is in a form which-
(a) identifies any individual to whom the information relates who is not an individual who provides health care or adult social care, or
(b) enables the identity of such an individual to be ascertained.
(2) A person may make a confidential collection request under section 254 only if the request-
(a) is a mandatory request,
(b) relates to information which the person making the request ("R") may require to be disclosed to R or to the Information Centre by the person holding it, or
(c) relates to information which may otherwise be lawfully disclosed to the Information Centre or to R by the person holding it."
Clause 256: Information systems: supplementary
270: Clause 256, page 245, line 36, leave out "collected pursuant to" and insert "obtained by complying with"
Clause 257: Powers to require and request provision of information
272: Clause 257, page 246, line 9, at end insert-
"(2A) But the Information Centre may not impose a requirement under subsection (1)(a) for the purpose of complying with a confidential collection request falling within section (Requests for collection under section 254: confidential information)(2)(c).
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(2B) In such a case, the Information Centre may, however, request any person mentioned in subsection (2) to provide it with any information which the Centre considers it necessary or expedient for the Centre to have for the purpose of complying with the request."
273: Clause 257, page 246, line 16, at end insert-
"( ) If the Information Centre considers it appropriate to do so, the Centre may make a payment to any person mentioned in subsection (2)(b) who has provided information to the Centre pursuant to a request made under subsection (2B) in respect of the costs to that person of doing so."
Clause 258: Publication of information
275: Clause 258, page 246, line 32, leave out "collects pursuant to" and insert "obtains by complying with"
276: Clause 258, page 247, line 9, leave out "collected pursuant to" and insert "obtained by complying with"
277: Clause 258, page 247, line 10, leave out "collects pursuant to" and insert "obtains by complying with"
278: Clause 258, page 247, line 18, leave out "collects pursuant to" and insert "obtains by complying with"
Clause 259: Other dissemination of information
279: Clause 259, page 247, line 39, leave out "collects pursuant to" and insert "obtains by complying with"
280: Clause 259, page 247, line 46, after "and" insert "-
(i) the relevant person has consented to the dissemination, or
(ii) "
281: Clause 259, page 248, line 2, at end insert-
"( ) the information is in a form which identifies any individual to whom the information relates who is not a relevant person or enables the identity of such an individual to be ascertained and the individual has consented to the dissemination;"
282: Clause 259, page 248, line 11, at end insert-
"(3A) The Information Centre may also disseminate, in such form and manner and at such times as it considers appropriate, any information which it collects pursuant to a direction under section 253 or a request under section 254 (whether or not it falls within subsection (2)) to any person to whom the information could have been lawfully disclosed by the person from whom the Centre collected the information.
(3B) The Information Centre may also disclose information which it obtains by complying with a direction under section 253 or a request under section 254 (whether or not it falls within subsection (2)) if-
(a) the information has previously been lawfully disclosed to the public,
(b) the disclosure is made in accordance with any court order,
(c) the disclosure is necessary or expedient for the purposes of protecting the welfare of any individual,
(d) the disclosure is made to any person in circumstances where it is necessary or expedient for the person to have
13 Mar 2012 : Column 214
(e) the disclosure is made in connection with the investigation of a criminal offence (whether or not in the United Kingdom), or
(f) the disclosure is made for the purpose of criminal proceedings (whether or not in the United Kingdom).
(3C) Paragraphs (a), (b) and (f) of subsection (3B) have effect notwithstanding any rule of common law which would otherwise prohibit or restrict the disclosure."
284: Clause 259, page 248, line 22, after "section" insert "or section (Dissemination: directions under section 253 and requests under section 254)"
285: Clause 259, page 248, line 23, leave out from "it)" to first "any" in line 24 and insert "under or by virtue of"
287: Clause 259, page 248, line 28, at end insert-
"( ) For the purposes of this section and section (Dissemination: directions under section 253 and requests under section 254) the provision by the Information Centre of information which it has obtained by complying with a direction under section 253 or a request under section 254 to the person who gave the direction or made the request is to be treated as dissemination by the Centre of that information to that person."
288: After Clause 259, insert the following new Clause-
"Other dissemination: directions under section 253 and requests under section 254
(1) A direction under section 253 may require the Information Centre to disseminate information which it obtains by complying with the direction if the information falls within subsection (2).
(2) Information falls within this subsection if-
(a) the information is required to be published under section 258;
(b) the information is in a form which identifies any relevant person to whom the information relates or enables the identity of such a relevant person to be ascertained and-
(i) the relevant person has consented to the dissemination, or
(ii) the person giving the direction, after taking into account the public interest as well as the interests of the relevant person, considers that it is appropriate for the information to be disseminated;
(c) the information is in a form which identifies any individual to whom the information relates who is not a relevant person or enables the identity of such an individual to be ascertained and the individual has consented to the dissemination;
(d) the Centre is prohibited from publishing the information only by virtue of it falling within section 258(2)(c) and the person giving the direction considers it would be in the public interest for the information to be disseminated.
(3) A direction under section 253 may require the Information Centre to exercise-
(a) the power conferred by section 259(3A) in relation to information which it collects pursuant to the direction, or
(b) any other power it has under or by virtue of any other provision of this Act (other than section 259(1) or (3B)) or any other Act to disseminate information which it obtains by complying with the direction.
13 Mar 2012 : Column 215
(4) A request under section 254 may request the Information Centre to exercise-
(a) the power conferred by section 259(1) or (3A) in relation to information which it obtains by complying with the request, or
(b) any other power it has to disseminate such information under or by virtue of any other provision of this or any other Act.
(5) A direction under section 253 may require, and a request under section 254 may request, the Information Centre not to exercise the power conferred by section 259(1) or (3A) in relation to information which it obtains by complying with the direction or request.
(6) Section 254(3) does not apply in relation to anything included in a mandatory request by virtue of subsection (4) or (5).
(7) A requirement imposed on, or a request made to, the Information Centre in accordance with this section to disseminate information may include a requirement or request about the persons to whom the information is to be disseminated and the form, manner and timing of dissemination."
289: After Clause 259, insert the following new Clause-
"Code of practice on confidential information
(1) The Information Centre must prepare and publish a code in respect of the practice to be followed in relation to the collection, analysis, publication and other dissemination of confidential information concerning, or connected with, the provision of health services or of adult social care in England.
(2) For the purposes of this section "confidential information" is-
(a) information which is in a form which identifies any individual to whom the information relates or enables the identity of such an individual to be ascertained, or
(b) any other information in respect of which the person who holds it owes an obligation of confidence.
(3) Before publishing the code, the Information Centre must consult-
(a) the Secretary of State,
(b) the Board, and
(c) such other persons as the Centre considers appropriate.
(4) The Information Centre must not publish the code without the approval of-
(a) the Secretary of State, and
(b) the Board, so far as the code relates to information concerning, or connected with, the provision of NHS services.
(5) The Information Centre must keep the code under review and may revise it as it considers appropriate (and a reference in this section to the code includes a reference to any revised code).
(6) A health or social care body must have regard to the code in exercising functions in connection with the provision of health services or of adult social care in England.
(7) A person, other than a public body, who provides health services, or adult social care in England, pursuant to arrangements made with a public body exercising functions in connection with the provision of such services or care must, in providing those services or that care, have regard to the code."
Amendments 288 and 289 agreed.
Clause 260: Information Register
13 Mar 2012 : Column 216
Clause 266: Additional functions
Clause 268: Failure by Information Centre to discharge any of its functions
291: Clause 268, page 251, line 39, at end insert-
"( ) For the purposes of this section, a failure to discharge a function properly includes a failure to discharge it consistently with what the Secretary of State considers to be the interests of the health service in England or (as the case may be) with what otherwise appears to the Secretary of State to be the purpose for which it is conferred."
Clause 270: Powers of Secretary of State or Board to give directions
291A: Clause 270, page 252, line 16, at end insert-
"(d) requiring the Centre to exercise such systems delivery functions of the Secretary of State or (as the case may be) the Board as may be specified."
291B: Clause 270, page 252, line 16, at end insert-
"( ) A function required to be exercised by a direction given by the Secretary of State or the Board by virtue of subsection (1) is subject to directions given by the Secretary of State or (as the case may be) the Board about the exercise of the function."
291C: Clause 270, page 252, line 33, at end insert-
"( ) A power conferred on the Secretary of State under subsection (1)(d) must provide that a direction may include provision about payments by the Secretary of State to the Information Centre for things done in the exercise of the function in respect of which the direction is given.
( ) A power conferred on the Board under subsection (1)(d) must provide that a direction must permit the Information Centre to charge the Board a reasonable fee in respect of the cost of complying with the direction.
( ) A power conferred under subsection (1)(d) must provide that the giving of a direction does not prevent the Secretary of State or (as the case may be) the Board from exercising the function in respect of which the direction is given."
291D: Clause 270, page 252, line 38, at end insert-
(a) in relation to the Secretary of State, means a function of the Secretary of State which is exercisable in relation to the development or operation of information or communications systems in connection with the provision of health services or of adult social care in England;
(b) in relation to the Board, means a function of the Board which is exercisable in relation to the development or operation of information or communications systems in connection with the provision of NHS services."
Amendments 291A to 291D agreed
13 Mar 2012 : Column 217
Clause 277 : The National Patient Safety Agency
Lord Hunt of Kings Heath: My Lords, this returns us to a debate that we had in Committee on the future of the National Patient Safety Agency. I am a former chair of the National Patient Safety Agency, which was established following work by the former Chief Medical Officer, Liam Donaldson, looking at the experience of the airline industry, which over the years has developed a very effective system of learning from mistakes.
In the airline industry, airline pilots have the confidence to report near misses and other incidents because that is done on the basis of no recriminations. The evidence from those reports is put together to help the airline industry to become safer and it has been outstandingly successful over the years. That was the intention of the National Patient Safety Agency. It undertakes many roles but the core role is the national reporting and learning system which is aimed at carrying out the same process as in the airline industry.
3.15 pm
I understand that, as the years go by, more and more incident reports are made by staff in the National Health Service from which patterns are learnt. The NPSA then issues various bulletins and safety warnings so that the health service learns from mistakes. With the abolition of the NPSA, what will happen to the national reporting and learning system? No doubt the noble Earl will be able to inform us of where they have got to. I understood that last year there were discussions about a transfer of operational management to Imperial College Healthcare NHS Trust. The point is that it comes under the auspices of the NHS Commissioning Board.
The issue here is whether that is sensible, given that the NHS Commissioning Board is a management body overseeing the National Health Service, where, in this system, you want to encourage staff to feel that they can report untoward incidents without any fear of repercussions. I would like to hear from the noble Earl, Lord Howe, how we will be assured of the independence of the process by which the reporting system and analysis are undertaken, and whether he considers that there might be ways in which it could be taken out of the umbrella of the NHS Commissioning Board. I, for one, would have thought that it might have a chilling effect on the willingness of NHS staff to report incidents in the future. I beg to move.
Lord Warner: My Lords, I support my noble friend's amendment. As a Minister, I, too, had responsibility for the NPSA and I was responsible when we introduced the reporting system. It is easy to forget how difficult it was to secure agreement across the NHS to that reporting system. There was a great deal of nervousness about it and it has certainly taken time to build up the confidence, across the country, that ensures that most service
13 Mar 2012 : Column 218
Baroness Finlay of Llandaff: My Lords, I speak in support of what has been said by the noble Lord, Lord Warner. There is real anxiety that people will be frightened to admit to and report errors, if they feel that that could threaten, in any way, the contracting of the service that they are working in. Who in the new system will be responsible for rolling out training that has come from the cataloguing and analysis of problems, and how will the lessons learnt in devolved nations be fed into the system for the UK as a whole. Indeed, how will lessons learnt in England be fed out to the devolved nations?
Lord Patel: My Lords, I speak as somebody who has been involved with the National Patient Safety Agency for longer than the noble Lord, Lord Warner, as a Minister, or the noble Lord, Lord Hunt, as its chairman, as I chaired it for four years. What is important is that the National Patient Safety Agency, as it is currently, has been unable to be effective. It has not been effective because it is not mandatory to adopt, implement or use the learning produced from the reports it receives from all healthcare providers on systems failures that may cause harm to patients. I hope that the Minister will reassure us that whatever the new arrangements are, the learning produced from systems failures will be implemented, or will be expected to be implemented.
I do not know whether the Commissioning Board is the ideal place for it-I understand that it is taking over the group that looked after the analysis of the reports. Therefore, it will be its task to disseminate all the learning that comes from it. The actual collection of information or data will be outsourced on a contractual basis to Imperial College. Perhaps the Minister will comment on that. The important issues are that the information on systems failure is collected and that the lessons learnt are available to all those who commission and provide healthcare. They must be implemented.
Earl Howe: My Lords, I hope it goes without saying-I think that all noble Lords would agree-that patient safety has to be the key priority for all those working in the health service. We cannot allow it to be an add-on or an afterthought. For that reason, the Bill puts safety at the heart of the NHS, not at arm's length. Currently, the National Patient Safety Agency's
13 Mar 2012 : Column 219
The noble Lord, Lord Hunt, asked whether it was sensible to do as we propose. Safety is, of course, a key domain of quality and we believe that the board, as the body legally responsible for ensuring continuous quality improvement in the NHS, will be best placed to drive a powerful safety agenda through the NHS. The board will use its leadership, expertise and oversight of the system, including oversight of the national reporting and learning system, to lead continuous quality and safety improvement. Its unique perspective would allow it to ensure that appropriate levers are used to drive safety improvement across the system, based on the needs of the NHS. Embedding safety across the system is vital to increase the pace of development, and it is the intention that the patient safety function will be conferred on the shadow body-the NHS Commissioning Board authority-in June of this year.
It is intended that the operational management of the NPSA's national reporting and learning system will transfer on a temporary basis to Imperial College Healthcare NHS Trust on 1 April 2012. From April, Imperial College will manage the team responsible for the existing NRLS function for a temporary period of two years. During the two-year period a full tendering process will be developed by the NHS Commissioning Board that is intended to identify the future specification of requirements for a national system to capture and analyse patient safety incident data.
Within the board there will be a patient safety team of around 40 staff led by the director of patient safety and bringing together policy, insight, advice and guidance. The arm's-length bodies review recommended the abolition of the National Patient Safety Agency. It made clear that the agency's functions, while necessary within a system supporting wider quality and safety improvement, did not need to be performed at arm's length. For me, one of the key arguments for making this change is that the National Patient Safety Agency did not have the authority or position to exploit fully the information gained from the national reporting and learning system. In contrast, the board will have the necessary authority and be positioned at the very heart of the system, and therefore be better placed to lead and drive improvements.
The noble Lords, Lord Hunt and Lord Warner, questioned whether the board was actually the right body. I understand the noble Lords' concerns regarding the independence of the NRLS, but I feel as well that the board will prove to do an excellent job. In particular, it is worth remembering the board's specific duty with regard to this in new Section 13Q.
13 Mar 2012 : Column 220
As regards conflicts of interest, the NPSA is not being placed within the Commissioning Board as an ALB organisation; it is being abolished. We are putting safety at the heart of the NHS. The NHS Commissioning Board will assume responsibility for securing some functions of the patient safety division of the NPSA relating to reporting and learning from patient safety incidents so that we can embed patient safety into the health service through commissioning and the contracts that commissioners agree with providers. If incident reports suggest that commissioning is the problem, this would be picked up by the system.
The noble Baroness, Lady Finlay, asked me what the proposals will mean in the context of the devolved Administrations. There is provision in the Bill for the NHS Commissioning Board to make information on reporting and learning available to others as it deems appropriate. Such information may be shared with devolved Administrations, and the board will have powers to enter into agreements with them to provide services.
The noble Lord, Lord Patel, asked who would be responsible for making the information available and acted upon. The board will have responsibility for provision of all appropriate guidance and advice. It is for the board to determine how best to ensure that this information is made available, particularly in the NHS. Clinical commissioning groups must have regard to that advice and ensure, through their contracts with providers or otherwise, that appropriate steps are taken to reduce risks and secure the safety of patients. The board would have to ensure that the advice and guidance that it provides is effective. The Bill also provides the board with the ability to deliver any of these functions through those that it considers best placed to maximise safety.
Patients rightly expect that any service provided through NHS funding will be safe, and making the board responsible for the key functions on safety will place responsibility for the safety of care where it should be-at the centre of the NHS. In saying that, however, I pay tribute to the positive contribution made by the National Patient Safety Agency and to make clear that its abolition is not at all to belittle its functions. It is, rather, a consequence of ensuring that vital functions are carried out in the best place in the new system. I believe that this is at the heart of the NHS-with the board-rather than at arm's length.
I hope that I have sufficiently reassured the noble Lord, Lord Hunt, and that he will feel able to withdraw his amendment.
Lord Hunt of Kings Heath: My Lords, I must say I am very uneasy because I think that the arm's-length bodies review completely missed the point. It was my understanding that the NPSA itself was not charged with improving safety. The whole point about setting it up was to have an independent body to which people in the NHS could report adverse incidents. Information would then be used in different ways, first in the issuing of safety bulletins and reports on a pattern of safety incidents, which would improve safety in the health service. It was always the expectation that responsibility for safety rested with the health service and the regulator, CQC.
13 Mar 2012 : Column 221
3.30 pm
It is a fundamental confusion of roles to suggest that the body that collects this information should also be responsible for performance-managing safety. The moment you mix them up, people will be inhibited from reporting safety incidents. That is our key concern on this. Putting the reporting mechanism under the auspices of the Commissioning Board, albeit to be contracted out, will have a chilling impact on people who report. I think the architecture is wrong. I suspect incidents will fall in future. It would have been best to keep the roles separate and independent. I think I will test the opinion of the House on this.
3.31 pm
Contents 187; Not-Contents 244.
Adams of Craigielea, B.
Adonis, L.
Afshar, B.
Ahmed, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Blood, B.
Boothroyd, B.
Borrie, L.
Bradley, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Carter of Coles, L.
Chorley, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Collins of Highbury, L.
Condon, L.
Corston, B.
Cunningham of Felling, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Deech, B.
Donaghy, B.
Donoughue, L.
Drake, B.
Drayson, L.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Filkin, L.
Finlay of Llandaff, B.
Ford, B.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Glasman, L.
Golding, B.
Gould of Potternewton, B.
Grantchester, L.
Grenfell, L.
Grocott, L.
Guildford, Bp.
Hanworth, V.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Hattersley, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hilton of Eggardon, B.
Hollick, L.
Howarth of Newport, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
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Krebs, L.
Layard, L.
Lea of Crondall, L.
Levy, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
McAvoy, L.
McConnell of Glenscorrodale, L.
McDonagh, B.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mandelson, L.
Martin of Springburn, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Moser, L.
Noon, L.
Nye, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Owen, L.
Parekh, L.
Patel of Blackburn, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Radice, L.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sherlock, B.
Simon, V.
Singh of Wimbledon, L.
Smith of Basildon, B.
Smith of Leigh, L.
Snape, L.
Soley, L.
Stevenson of Balmacara, L.
Sugar, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tonge, B.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Walker of Aldringham, L.
Wall of New Barnet, B.
Walpole, L.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Wigley, L.
Williams of Elvel, L.
Wills, L.
Winston, L.
Wood of Anfield, L.
Woolmer of Leeds, L.
Worthington, B.
Young of Hornsey, B.
Aberdare, L.
Addington, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Astor of Hever, L.
Attlee, E.
Avebury, L.
Bates, L.
Benjamin, B.
Berridge, B.
Best, L.
Bew, L.
Bichard, L.
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Blencathra, L.
Boswell of Aynho, L.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brinton, B.
Brittan of Spennithorne, L.
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Brookeborough, V.
Brougham and Vaux, L.
Browne of Belmont, L.
Browning, B.
Buscombe, B.
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Byford, B.
Cameron of Dillington, L.
Campbell of Alloway, L.
Cathcart, E.
Chalker of Wallasey, B.
Chidgey, L.
Cobbold, L.
Colwyn, L.
Cope of Berkeley, L.
Cormack, L.
Cotter, L.
Courtown, E.
Craig of Radley, L.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
Crisp, L.
Cumberlege, B.
De Mauley, L.
Dear, L.
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Dixon-Smith, L.
Dobbs, L.
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Dykes, L.
Eaton, B.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Edmiston, L.
Elton, L.
Empey, L.
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Falkner of Margravine, B.
Fearn, L.
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Fellowes, L.
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Framlingham, L.
Fraser of Carmyllie, L.
Freeman, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Gardner of Parkes, B.
Geddes, L.
German, L.
Glasgow, E.
Glenarthur, L.
Glendonbrook, L.
Goodhart, L.
Goodlad, L.
Greengross, B.
Greenway, L.
Griffiths of Fforestfach, L.
Guthrie of Craigiebank, L.
Hamwee, B.
Hannay of Chiswick, L.
Harries of Pentregarth, L.
Harris of Richmond, B.
Henley, L.
Hereford, Bp.
Heyhoe Flint, B.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hussain, L.
James of Blackheath, L.
Jenkin of Kennington, B.
Jenkin of Roding, L.
Jolly, B.
Jones of Birmingham, L.
Jones of Cheltenham, L.
Jopling, L.
Kakkar, L.
Kilclooney, L.
Kirkham, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Kramer, B.
Laming, L.
Lawson of Blaby, L.
Lester of Herne Hill, L.
Lindsay, E.
Lingfield, L.
Linklater of Butterstone, B.
Liverpool, E.
Loomba, L.
Lucas, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.
MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Magan of Castletown, L.
Maples, L.
Marks of Henley-on-Thames, L.
Marland, L.
Marlesford, L.
Mawhinney, L.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Miller of Hendon, B.
Montgomery of Alamein, V.
Montrose, D.
Morris of Bolton, B.
Naseby, L.
Newby, L.
Newcastle, Bp.
Newlove, B.
Newton of Braintree, L.
Noakes, B.
Northbrook, L.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
O'Neill of Bengarve, B.
Oppenheim-Barnes, B.
Palmer, L.
Palmer of Childs Hill, L.
Palumbo, L.
Patel, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Plumb, L.
Popat, L.
Ramsbotham, L.
Randerson, B.
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Rees-Mogg, L.
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Risby, L.
Rix, L.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rogan, L.
Rowe-Beddoe, L.
Ryder of Wensum, L.
Saltoun of Abernethy, Ly.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selsdon, L.
Shackleton of Belgravia, B.
Sharkey, L.
Sharp of Guildford, B.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shipley, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Stephen, L.
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Stewartby, L.
Stirrup, L.
Stoneham of Droxford, L.
Stowell of Beeston, B.
Strasburger, L.
Strathclyde, L.
Sutherland of Houndwood, L.
Swinfen, L.
Taverne, L.
Taylor of Holbeach, L.
Tenby, V.
Thomas of Gresford, L.
Thomas of Winchester, B.
Tope, L.
Trefgarne, L.
Trimble, L.
True, L.
Trumpington, B.
Tyler, L.
Tyler of Enfield, B.
Ullswater, V.
Verma, B.
Vinson, L.
Wade of Chorlton, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walton of Detchant, L.
Warnock, B.
Warsi, B.
Wasserman, L.
Watson of Richmond, L.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.
Willoughby de Broke, L.
Wolfson of Sunningdale, L.
Younger of Leckie, V.
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292A: Before Clause 280, insert the following new Clause-
"Human Rights Act 1988: provision of certain personal care and health care services to be public function
(1) A person who is commissioned to provide-
(a) personal care to an individual living in their own home, or
(b) a health care service,
shall be taken to be exercising a function of a public nature in providing such a service.
(2) In subsection (1)(a) "personal care" in relation to England has the same meaning as in paragraph 2 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 and in relation to Scotland has the same meaning as "personal care and personal support" as defined in section 2(28) of the Regulation of Care (Scotland) Act 2001 and section 1(1)(c) and Schedule 1 to the Community Care and Health (Scotland) Act 2001.
(3) In subsection (1)(a) and (b) "functions of a public nature" has the same meaning as in section 6(3) of the Human Rights Act 1998 (acts of public authorities)."
Baroness Greengross: My Lords, if I am a very frail, vulnerable, sick person in need of support or care, and I go into a residential home, my human rights will be protected. In this case, that means the right to dignity, respect, and privacy if I am having intimate care. If I have exactly the same needs and exactly the same services provided for me in my own home, my human rights are not protected. But I am the same person. My human rights now depend on whether I am down the road in a residential home or have the same services in my own home. That cannot be right. This amendment is designed to close the loophole in the law that allows this. It means that if a public body has arranged or contracted the service, it is a public function within the meaning of Section 6(3)(b) of the Human Rights Act, so it brings certainty that I will get my human rights protected. These are not controversial rights-it is just decent care.
We know that almost half a million older people receive essential care in their own homes, commissioned by their local authority in England, excluding the other devolved areas. Approximately 84 per cent of
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This amendment is supported by many organisations. Among them are Age UK, the British Institute for Human Rights, Disability Rights UK, the Equality and Diversity Forum, Justice, Liberty, Mencap, the Scottish Human Rights Commission and the Northern Ireland Human Rights Commission. In its report Implementation of theRight of Disabled People to Independent Living, published on 1 March 2012, the Joint Committee on Human Rights recommended that the Health and Social Care Bill should be amended in this way.
My understanding, however, is that while the Government have no argument with the view that the Human Rights Act should apply to private and third sector organisations providing publicly commissioned home care, it seems that they consider that the law provides this coverage already and that this amendment is therefore unnecessary. I share the commission's view that private providers of services, under arrangements made with the relevant statutory bodies under the NHS Act as amended by the Bill, will not necessarily continue to be carrying out a function of a public nature. The Equality and Human Rights Commission feels that the Department of Health's analysis of current case law is a bit overoptimistic. Were this question to be determined by a court, the outcome could not be predicted with any certainty.
I want to thank the Minister for giving a huge amount of his time and consideration to these issues. I know that he is wholeheartedly in support of the principles behind my amendment. It is plain that he has an undoubted commitment to avoiding human rights abuses in health and care settings. However, the fact remains that any relevant assurances that he might give us, while very welcome, must fall short of providing the urgent legal clarity about the scope of the Act that I believe to be very important. They would not provide service users with clear legal redress for human rights abuses or breaches, or give providers an immediate legal incentive to apply human rights standards to service delivery.
I am not suggesting that legislative provisions are the only guarantee of human rights protection, but I would argue that they are an important part of the solution. I recognise that, going forward, the Government's policy agenda could-and, I hope, will-provide opportunities to embed more effectively a human rights approach in health and social care. Seeking change in service culture and practice of services is very important. However, while these policy opportunities are very worthy of consideration, closing this legal loophole would put down a clear legal benchmark that would positively help to build cultural change in the health and social care sector. Such policies that the Government now have, however well-intentioned, are not a substitute for clear legal obligations under the
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The Government might also have reservations that making express reference to human rights in a health context could cast doubt on other areas beyond health or social care where public services are provided by private bodies. However, I do not agree that a reference solely in health and social care would cast such doubts on other policy areas. Thinking about the operation of such a reference in reverse, it would be difficult to see how a specific reference in justice or education legislation could reasonably affect social care or healthcare.
In closing, I must reiterate that I feel that the law is not certain. In my view, the current legal position is evidently unsatisfactory. There may good arguments to support the view that providers should consider themselves bound by the Act and the duty. There are also legal arguments against that position. There is no way to predict what view a court might adopt. Support for this amendment will clarify beyond doubt the fact that a person commissioned to provide home-based social care or healthcare is performing a public function with the responsibilities that are within such a function and within the meaning of the Human Rights Act and the Equality Act. I hope that the Minister will find it possible to support this amendment. I beg to move.
Lord Rix: My Lords, I wish to support Amendment 292A, tabled by my noble friend Lady Greengross. As I am sure your Lordships will appreciate, I approach this issue from the perspective of people with a learning disability and would argue that the provisions of the Human Rights Act should be universally applied and not dependent as to whether an individual receives personal care in a residential setting or in their own home. Such a disparity is both unfair and unjustified, and it is right that we take the necessary steps to clarify matters.
For example, let me remind your Lordships of the appalling abuse highlighted by the BBC's "Panorama" programme in May of last year. Winterbourne View, near Bristol, was a privately owned assessment and treatment centre where residents with a learning disability were subject to an horrendous culture of ongoing bullying combined with physical and psychological abuse.
I make reference to the abuse at Winterbourne View because, following an amendment in 2008 to the then Health and Social Care Bill, which is now the Act, the law was changed to ensure that care homes in the private and third sectors, when providing care that is publicly commissioned, were within the scope of the Human Rights Act. This was the correct step to take and ensures that all legislation, regulations and guidance regarding personal care which is publicly commissioned and provided for in residential settings is underpinned by the tenets of the Human Rights Act.
For those who face the ongoing consequences of prejudice and discrimination every day of their lives-such as people with a learning disability-the Human Rights Act can have benefits that go well beyond the preconceptions of those who are eager to dismiss it as a dangerous irrelevance. However, while the individuals concerned who suffered abuse in Winterbourne View
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When applying the Human Rights Act the principle question must be, "To what extent has an individual's human rights been violated?". It should not be, "Under what type of roof did the alleged abuse take place?". In my view, abuse is abuse is abuse, and it is as simple as that. Respecting an individual's human rights should be universally applied and not subject to arbitrary levels of determination, such as the situation in which we currently find ourselves.
The Government claim that the loophole does not exist and so there is no need for the matter to be clarified in the way that the amendment requires. What is not in doubt is that, under the current circumstances, it is explicit under statute that when receiving publicly funded personal care services in residential settings, an individual's human rights can be upheld via the Human Rights Act. However, when that care is received in their own homes, the situation is much more ambiguous and less certain. Therefore, I remain hopeful that the support of Ministers for this amendment will be willingly and freely given.
Lord Low of Dalston: My Lords, I have put my name to this amendment because it seems very clear to me that we do need legislation to clarify the uncertain state of the law relating to the provision of health and social care services commissioned from the private and voluntary sectors. We know how we got to this point. Despite the intention of the then Government that responsibility under the Human Rights Act should generally follow the outsourcing of state functions, in the case of YL v Birmingham City Council the House of Lords held that a private company providing residential care under a contract with a local authority was not carrying out a public function for the purposes of the Human Rights Act. This human rights loophole was closed by Section 145 of the Health and Social Care Act 2008, but only for residential care services. The YL case did not directly deal with the question of health or home care services contracted out by the NHS or local authorities, so neither did the Health and Social Care Act 2008 in seeking to undo the YL decision. Thus there remains a lacuna in the law which needs to be addressed.
During the debates on this Bill in Committee, and in a subsequent letter to Peers, the noble Earl, Lord Howe, raised no objections to the Human Rights Act applying to home care provided by private and third sector organisations. Indeed, his letter maintained that publicly commissioned home care is already covered by the Act.
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Similar considerations apply in relation to healthcare, because the current Health and Social Care Bill will mean more independent providers being commissioned to provide NHS services. In correspondence with the Joint Committee on Human Rights, the Government raised no policy objections to the Human Rights Act extending to outsourced NHS services. Indeed, here too the Government have indicated that providing outsourced NHS services already qualifies as a public function under the Human Rights Act, so there is no need for the law to be clarified.
The Equality and Human Rights Commission, after exhaustive legal analysis, has concluded that the matter is by no means so clear-cut. I have a detailed legal briefing here, but your Lordships will be relieved to hear that I do not intend to read it out.
Lord Low of Dalston: There speaks a lawyer. Suffice it to say that everything about the matter is extremely complex and open to question, interpretation or qualification. The YL case took many by surprise. It was hardly clear-cut-the Law Lords were split three to two. They used a factor-based approach to determining whether an organisation other than a public authority is performing functions of a public nature. However, it is fair to say that each and every one of the factors employed is hedged about with qualifications.
In support of its view on outsourced NHS services, the Department of Health cites the Weaver case, where the Court of Appeal decided-once more by a majority-that a registered social landlord was performing a public function when allocating and managing social housing. However, some legal commentators thought that this was a surprising decision too, because it sits oddly with the YL case. This again emphasises the ambiguity of the case law and indicates that the outcome of future cases cannot easily be predicted. Indeed, an opinion obtained by the EHRC from senior counsel suggests that the reverse is the case. After detailed legal analysis of the statutory framework and case law, counsel concluded that each aspect of the Law Lords' negative reasoning regarding residential care in the YL case applies equally to the provision by private care providers of home care services.
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We do not have to take a view on whether the commission is right and the Government wrong. If the Government have no problem with the policy position which it is sought to reinforce, it is enough that there is a doubt. Why not put the matter beyond doubt and avoid all the uncertainties of the case law by putting this amendment in the Bill? The Government say that they would not wish to cast doubt on other areas beyond health where public services are provided by private bodies by making express provision in this area, but all this amendment is seeking to do is to finish plugging the gap opened up by the YL decision and not completely addressed by the Health and Social Care Act 2008.
At that time it was not so clear that there was a human rights problem in relation to non-residential services, but following a welter of reports from the
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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.
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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",
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
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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.
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4.15 pm
In the wake of that, as the noble and learned Lord, Lord Mackay, has said, regulations were passed to deal with the particular problem. However, the general problem of what to do about YL goes way beyond the health service and health service providers. It is the problem of the reach of the Human Rights Act in imposing obligations on bodies that are private in form but provide services of a public nature. The problem is how to define what is meant by that. The framers of the Human Rights Act-as the noble Lord, Lord Warner, will remember because he was one of the key advisers in the making of the Act-decided that, rather than having lists and dealing with specific examples, there should be general language that would be flexible and capable of being interpreted by the courts on a case-by-case basis. It is most unfortunate that that failed by the majority decision in YL.
This is a very important problem that goes way beyond this Bill and will need to be addressed by Parliament at some point. My first difficulty with the amendment is the point that has been raised by the noble and learned Lord, Lord Mackay, which is the reference to,
I do not know what that means. What are the certain ones and what are those that are not covered by that? The other difficulty is that the amendment refers to something called a "health care service". I do not know what that means, because "health care service" is defined nowhere in this vast Bill. So the amendment has, in seeking to remove ambiguities, created two further ambiguities that would, if the amendment were to be passed, have to be determined by the courts in addition to the proper interpretation of YL.
In the YL case, the then Government argued strongly for the interpretation that Lord Bingham and the noble and learned Baroness, Lady Hale, gave. Both the previous and present Governments have said that they believe that the minority view in YL is the correct view. We now need to translate their general position when this commission has, in due course, considered it properly, which it has not yet had the chance to do. Can the Minister give a clear Pepper v Hart statement? I say that in trepidation because the noble and learned Lord, Lord Mackay of Clashfern, was the dissenter in Pepper v Hart. He thought that it was quite wrong for judges or others to be looking at what Ministers said in parliamentary debates, and there is a great deal to be said for that point of view. Nevertheless, it is the law. Rather than seeking to put an amendment which is too specific, too narrowly confined and itself contains two ambiguities on to the statute book, we could treat the Pepper v Hart statement as giving further guidance
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For all those reasons, I very much hope that the mover and supporters of the amendment will be satisfied if the Minister can give an unequivocal statement.
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?
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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
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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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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.
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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.
Lord Newton of Braintree: Having listened to the debate, I differ a bit from the noble Lord, Lord Wills. I have heard enough from the two distinguished lawyers who spoke beforehand to come to the view that my noble friend would be very unwise to rush down this path without more time than whatever there is-less than a week-before the intended Third Reading of the Bill to sort out the issue.
As always, my head has been left spinning by the lawyerly contributions from my noble and learned friend here and my noble friend down there. I just want to raise a couple of innocent layman's questions that may even be a bit naive but which relate to the point that the noble Lord, Lord Lester, raised: what is the definition of all this?
I observe that the heading of the new clause does not talk about provision at the request of a public body, just provision of certain services, implicitly by anybody, whether or not commissioned by a public body. The first sentence reads:
"A person who is commissioned to provide",
these services, undefined. Private people commission private services from private bodies in many areas-private hospitals, private residential care homes, private chiropodists, private this, that and the other. As far as I can see, the amendment extends the definition of public body to bodies that are not public by any reasonable definition and are not commissioned by public bodies to provide a service. That seems to me to be the natural construction. This is at least as much a question for the noble Baroness, Lady Greengross, as for the Minister, but that is how I read it. If that is its purport, it is not sensible and we should not rush into it.
Baroness Wheeler: My Lords, these Benches strongly support the amendment tabled by the noble Baroness, Lady Greengross, and the noble Lords, Lord Low and Lord Rix, to which I have added my name. It is frustrating that we appear to have moved no further forward from Committee, when the noble Baroness, a plethora of respected organisations representing older people, mental health, disability and human rights organisations, as well as the Equality and Human Rights Commission, were saying that there was a real
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I believe that my noble friend Lord Wills addressed key points raised by the noble and learned Lord, Lord Mackay, and other noble Lords-as far as I was able to follow as a non-lawyer-and indeed acknowledged that this was unfinished business on the part of the previous Government. We amended the Health and Social Care Act 2008 to address this issue in respect of residential care. What has changed dramatically since then is that well over two-thirds of home care services are now provided by the private and voluntary sectors and this Bill is likely to increase the proportion of contracted-out provision still further.
The Government's view, expressed in Committee, that any further legislation would cause uncertainty in other areas outside health and social care is a strange one. In this light, the obvious counter-argument is that the 2008 Act has already opened the door and, in my view, that factor only strengthens the case for the loophole to be closed off. Analysis by key human rights lawyers, counsel for the Equality and Human Rights Commission, key charities and civil liberties organisations have all endorsed this approach and stressed that case law does not support the Government's view. As we have heard only recently, the Joint Committee on Human Rights' report on independent living again called for the current Bill to be amended to extend the public function definition to the provision of care at home. For me, that is the key point. All these organisations still argue strongly that there is a loophole that needs to be addressed.
Moreover, the Government's argument, again in Committee, that the YL v Birmingham City Council judgment has not been challenged to demonstrate that home care services are not covered by the Act or existing legislation is also weak, in my view, and does not inspire confidence in what might happen in the future. My understanding is that the subject of the YL judgment was residential care and the scope of the 2008 Act is therefore limited to that.
I hope that the noble Earl will have good news for us that the Government have rethought this issue and recognise the very real problem and concern that exist for the future. I hope that he will accept this amendment. We all agree about the importance of taking a human rights approach to care provision, with dignity and respect for older people embedded. The current loophole in the provision of personal care in the home by third or voluntary sector providers is of deep concern to thousands of recipients of home care. We need to ensure that this key opportunity to achieve clarity in this matter in the current Bill is not missed.
Earl Howe: My Lords, we have heard many excellent speeches in this debate, not least from the noble Baroness, Lady Greengross. I know that the noble Baroness and all those supporting her are motivated by a determination to ensure that everyone who uses publicly funded health and social care services is protected from abuses of their human rights. I want to make it clear that I absolutely share that determination.
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It is crucial that we ensure that vulnerable people are protected, no matter what age they are, no matter whether they have a disability, and no matter where they happen to live or where they happen to be at any given time. The requirement for people to have their human rights protected and respected is not negotiable. This is absolutely fundamental in a civilised and democratic society. The question we have before us today is how best to achieve that, and whether the proposed amendment would help or hinder us in doing so.
Amendment 292A is intended to provide certainty about the coverage of the Human Rights Act with respect to healthcare and home care providers. I understand the noble Baroness's arguments for her amendment, and I completely agree about the importance of the Human Rights Act and the public sector equality duty. It may provide reassurance if I state clearly and unequivocally that the Government's view is that all providers of publicly funded health and care services should indeed consider themselves bound by the Act and the duty. This is the position that we expect private and third sector providers to follow and the position that we would argue for if a case were to be brought; and we think there are good arguments with which a court would agree.
Of course, legislative provision is far from the only mechanism we have for ensuring protection for those using healthcare and domiciliary care services and for improving the quality of that care. In fact, we would argue that in order to ensure that users of those services are protected from the kinds of tragic abuses that the noble Baroness and others have spoken about so eloquently, we need to focus efforts on changing the culture and practice of services which provide poor care. We are working hard on several fronts to drive improvements in the way that people, including older people, experience health and social care services. We know that this is essential, and much of it predates the excellent EHRC report that resulted from the inquiry led by the noble Baroness, Lady Greengross.
To offer just a couple of examples of the work that we are doing to this end, we have made the Care Quality Commission responsible for assuring quality of care from April. The CQC will undertake a programme of inspections of 200 home care providers that will specifically look at supporting home care workers, the care and welfare of those receiving home care, and the involvement of people in planning and managing their own care. The new disclosure on barring service will replace the vetting and barring scheme in November this year and will make it easier for home care employers to check the suitability of their staff by providing a seamless service and introducing portable criminal record checks.
We know that legislation has a role, which is why we intend to put adult protection on a firm statutory basis for the first time ever by requiring local authorities to convene and manage local safeguarding adult boards, by legislating for their key roles and responsibilities, and by requiring them to be in touch with and accountable to local communities. We expect to see much better sharing of information and action that will help to drive up the safety and quality of services. The
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To return to the amendment itself, I am afraid that, despite the persuasive case put by the noble Baroness and others, I am not able to support it, and I hope that noble Lords will allow me to set out why. The problem is that while, on the face of it, this amendment simply provides helpful certainty about the coverage of the Human Rights Act with respect to health and homecare providers, in reality it has very serious and unhelpful implications for the wider interpretation of the Act. This may sound like a rather dry, legal argument, but it is an extremely important one with very practical consequences. By stating expressly that providers of healthcare and homecare services were covered by the Act, we would cast doubt on whether all the areas beyond health and social care were covered by it. However we framed it-whether we made it an avoidance of doubt provision or a deeming provision-we would weaken the applicability of the general test, suggesting that a narrow interpretation of the Act was appropriate and raising doubt about the Act's applicability to all those bodies that had not been specified explicitly in the legislation.
We would also encounter the significant problem, referred to by my noble and learned friend Lord Mackay, of how to ensure that a specific provision of this type did not have the unintended consequence of making the situation less clear with respect to healthcare and homecare services. When noble Lords think of the wide range of services that fall under the banner of homecare services, I am sure they will appreciate the difficulty of drafting legislation that covers all relevant services and avoids any potential loopholes. My noble friend Lord Lester made a similar point. We can see how the proposed amendment, as drafted, makes the situation unclear. It is not clear how it applies to a person receiving care in the home of a family member-a point made by my noble and learned friend-or whether it applies to services provided under direct payment arrangements rather than being commissioned by a local authority or NHS body.
It is for those reasons that the Human Rights Act is quite deliberately designed to make broad provision that applies to all public bodies across the whole range of services. As my noble friend Lord Lester said, the Act is very carefully put together. Any amendment of the Act must be done by looking at it in the round, otherwise we risk destabilising its careful construction. That brings me to another point mentioned by my noble friend Lord Lester.
4.45 pm
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
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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.
Lord Pannick: Would not any court regard this amendment as specifically designed to deal with the YL problem? It would not regard it as casting doubt on anything else.
Earl Howe: No loophole is created by YL. That was closed in Section 145 of the Health and Social Care Act 2008. While I listened with care to the noble Lord, Lord Low, who set out the background to the YL case very ably, I disagreed with him completely. This is not unfinished business from YL. That matter was decisively closed by the previous Government in the 2008 Act.
I move to another point raised by my noble friend Lord Lester. The Government have established an independent commission, due to report at the end of this year, which is looking across the board at how human rights are protected in the UK to see whether things can be done better. The topic of Section 6 of the Human Rights Act featured in various responses to the commission's consultation last year and has already featured in the commission's discussions. The Government's view is that the receipt of the commission's final report will provide the right moment for us to consider rights protection in the round, including any issues surrounding the scope and operation of Section 6.
I recognise the noble Baroness's point about the amendment made in 2008 to specify that providers of residential care are bound by the Human Rights Act.
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Lord Wills: I am grateful to the Minister for giving way. It was not the case that the previous Government resisted the amendment. I was deeply and intimately involved in this. It is true that we did not get our act together in time; we ran out of time. I refreshed my memory from my own papers on this point. I agree with the Minister that it is a difficult issue. It is absolutely true that there were different views within government, and no settled decision was reached. There was agreement at the highest level and agreement with the noble Lord, Lord Lester, that public function-the wider issue that lies at the heart of this issue-did need to be addressed. That is what this amendment is trying to do. However, we did not resist it in the way that the noble Earl is suggesting. I appreciate that he is not perhaps as painfully familiar with the details of the previous Government as I am afraid I am.
Earl Howe: I am grateful to the noble Lord. My main point is that, whether by accident or design, the previous Government did the right thing in our view, and that is clearly the advice of the Ministry of Justice, which is in the lead on human rights matters.
I hope I have explained why I cannot support this amendment, despite the Government's wholehearted support for the principles involved, and that I have demonstrated how seriously we take the issues that the noble Baroness raised. To that end, I can today make four very clear statements. I can confirm that the Government maintain an expansive view of the interpretation of Section 6 and, where we have the opportunity and it is appropriate to do so, we would intervene in legal cases in support of that interpretation. I can confirm that human rights will of course be part of the underpinning framework in adult social care law. Any reforms to the law on care and support will need to ensure consistency with the obligations placed on local authorities by the Human Rights Act. I can commit to hosting a round table, along with my honourable friend the Minister of State for Care Services, to bring together all key partners, including, if she wishes, the noble Baroness, to establish how our strategy on adult social care ensures protection of human rights. Finally, I confirm that if the independent commission on human rights makes any recommendations in its final report about the reform of Section 6 of the Human Rights Act, the Government will give them serious consideration.
On this basis, I hope that the noble Baroness will recognise the extent to which we have tried to address her concerns and will feel able to withdraw her amendment. If not, I beg noble Lords to think twice before voting for it.
Baroness Greengross: My Lords, I thank the Minister for what he has just said, which was extremely encouraging. I have never doubted his commitment to getting this
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I agree that there could be ambiguity if somebody goes to stay with their daughter and I agree that there could be ambiguity in the drafting, although the amendment was not drafted by me but by the EHRC with the help of very learned lawyers who have worked on this extremely hard. It is limited not to services provided by anybody but to services commissioned or arranged by a public body. Therefore, those particular points that were raised by noble Lords do not apply, although if I thought they did I would agree that it would be a bit silly to try to insist on this amendment.
I feel that in spite of the Minister's very welcome commitment-we have had time together when he has expressed this so I know that he feels this way-I would like to see the work that the noble Lord, Lord Wills, referred to carried forward, as so many other good policies have been, as there is no party-political disagreement about the aims of particular bits of legislation or the desire to get things right. I would like this to be the case. I am really sorry that the Government feel that we have to wait for those very worthwhile undertakings and pieces of work to be taken on board before we can protect these very vulnerable people who are just not being protected because they happen to be doing what all older people seem to want, which is getting services in their own home rather than going to a residential home. That is what the Government seem to want them to do, and that is what most older and vulnerable people want, as well as many younger disabled people who want to live independently, and many people with learning disabilities. This is not just about one group, although it primarily concerns older people. I just feel sad. I ask the noble Earl to continue with his good intentions but to build on them by incorporating a redrafted amendment in those intentions. On that basis, I feel bound to say that I should like to test the opinion of the House.
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Contents 196; Not-Contents 253.
Adams of Craigielea, B.
Adonis, L.
Afshar, B.
Ahmed, L.
Alton of Liverpool, L.
Andrews, B.
Armstrong of Hill Top, B.
Bach, L.
Bakewell, B.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Best, L.
Bilston, L.
Blackstone, B.
Blood, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
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Brooke of Alverthorpe, L.
Brookman, L.
Browne of Ladyton, L.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Chester, Bp.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Cohen of Pimlico, B.
Collins of Highbury, L.
Corston, B.
Craigavon, V.
Crisp, L.
Curry of Kirkharle, L.
Davies of Coity, L.
Davies of Oldham, L.
Davies of Stamford, L.
Deech, B.
Donaghy, B.
Donoughue, L.
Drake, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Erroll, E.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Evans of Watford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gibson of Market Rasen, B.
Giddens, L.
Gilbert, L.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Grantchester, L.
Greengross, B.
Grenfell, L.
Griffiths of Burry Port, L.
Grocott, L.
Hanworth, V.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Hereford, Bp.
Hilton of Eggardon, B.
Hollick, L.
Howarth of Breckland, B.
Howarth of Newport, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Hylton, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
Kilclooney, L.
King of Bow, B.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Layard, L.
Lea of Crondall, L.
Liddle, L.
Lipsey, L.
Lister of Burtersett, B.
Low of Dalston, L.
McAvoy, L.
McDonagh, B.
Macdonald of Tradeston, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mandelson, L.
Martin of Springburn, L.
Massey of Darwen, B.
Maxton, L.
Mitchell, L.
Monks, L.
Moonie, L.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Newcastle, Bp.
Nye, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Ouseley, L.
Owen, L.
Pannick, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prescott, L.
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