Health and Social Care Bill

My Lords, it is a privilege to act as junior counsel to a leader as distinguished as the noble and learned Lord, Lord Mackay of Clashfern. His speech makes it unnecessary for me to speak for long. I respectfully agree with everything that he has said but wish to add a few further points. I am very sorry to disappoint so many of my friends from civil society and their representatives whose eloquent speeches we have heard today. However, I do not think that there is a loophole and, if there were, I do not think that this amendment would remove uncertainty; it would, in fact, increase it. I am particularly glad to say this in the presence of the noble Lord, Lord Wills. He will remember that he was Minister when I was trying, as a GOAT in the Brown Government—noble Lords will know what that means—to persuade his colleagues that we should do something about the YL problem by way of further legislation. Unfortunately, the previous Government were unable to muster support for that and the present coalition Government have given that general problem to the Commission on a Bill of Rights, on which I serve, as one of the issues to consider in the context of whether there should be a Bill of Rights for the United Kingdom. Therefore, the general problem is on the agenda of that commission. When it reports by the end of this year, the Government can then take stock of what to do about it. As the noble Lord, Lord Low, indicated in his completely accurate account of some of the background, the origin of the problem lies in the majority decision of the Law Lords in the YL case. I believe that the majority in that case asked themselves the wrong question. Instead of asking how to apply the test in Section 6 of the Human Rights Act to cover private care homes, they said to themselves—and made clear—that it was somehow unfair to place greater obligations upon public sector bodies than private sector bodies. I think that was completely the wrong question and they were very bold in deciding not to follow Lord Bingham and the noble and learned Baroness, Lady Hale, whose speeches I found completely convincing in logic but also, more importantly, completely in harmony with the intentions of the legislation when it was enacted in 1998. 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, "““certain personal care and health care services””." 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 is 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 to the courts if and when the problem should arise in this particular context. I believe that to be quite sufficient. If we were to pass the amendment, we would create the very legal uncertainty that the noble Baroness, Lady Greengross, and the noble Lords, Lord Low and Lord Rix, rightly said should not be a feature of our legal system. 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.