Health and Social Care Bill

My Lords, in supporting the amendment, I hope that it might be helpful to your Lordships' House if I were to provide more background from the previous Government, for whom I shared ministerial responsibility in this area, as the noble Lord, Lord Lester, alluded to. I am privileged to follow him on this, because I have found so often in our past relationships that we share many common objectives but do not always agree on the best way of getting to them. As we have heard, the problem that the amendment seeks to address arose unexpectedly from a decision in the House of Lords, narrowly decided by a majority of three to two, which removed from vulnerable people basic protections that until then had been widely assumed to be entrenched. The arguments for addressing this problem have been compellingly outlined by other noble Lords who have spoken in this debate. These arguments were clear to the previous Government. As the Minister responsible for human rights, I felt that the YL decision did not reflect what Parliament had intended. I will not go into that because the noble and learned Lord, Lord Mackay, has set out cogently exactly why that is the case. I felt that it would be necessary to legislate to put that beyond dispute. However, as always, it was necessary within government to agree on the scope of any change and to find an appropriate legislative vehicle. As your Lordships well know, this can often take some considerable time. In 2008, the Health and Social Care Bill, as it then was, was the first opportunity that the previous Government could find to make some progress in putting right the consequences of the YL case. I will come back to this, but here I agree with the noble Lord, Lord Lester, that this was only a start and did not address the more fundamental problem that the case had thrown up. The change in the 2008 Act was narrow in scope. As we have heard, the changes were limited to residential care services. They did not address the status of health services or home care services that were contracted out by the NHS or local authorities, and contracting out is only likely to increase under the legislation being brought in by this Government. The previous Government ran out of time in making a settled decision on how best to go further. Sadly the noble Lord, Lord Lester, had decided to stop being a GOAT, even before that process was concluded. Therefore, in the light of all this and the YL judgment, I am not sure why the noble Earl seems to believe that all care from all providers is now covered beyond dispute by the Human Rights Act. I should be grateful if the Minister could set out in detail why he believes that advice to the opposite effect—including, as I understand it, from counsel to the HRC—is wrong. Why is that advice wrong? The Government also appear to be concerned that accepting the amendment might cause legal uncertainty in other areas outside health and social care. I understand these arguments. I heard them many times when I was in government, but such bureaucratic caution could be extended to arguing against ever legislating for anything. However, in this particular case, if the Government are seriously worried, I suggest to the noble Earl that they may be too late. The 2008 Act has already opened that door. The Government's suggestion that all these services are already covered, whatever the legal status of that commitment by the Government, has opened the door still wider. The Minister would therefore be unwise to rely on their line of argument, if that is what he is tempted to do in resisting the amendment.