Personal Care at Home Bill

I thank the noble Earl, Lord Howe, for tabling this amendment because it caused me to spend this morning studying that magnificent piece of legislation introduced by this Government—the Human Rights Act—and a fine piece of legislation it is too. The amendment focuses on the compatibility of the Bill with the European Convention on Human Rights and the requirements of reporting on that. As noble Lords may be aware, the Equality and Human Rights Commission helpfully produced a briefing on the Bill. I shall highlight some key points. I am very pleased that the commission broadly welcomes the Government’s commitment to provide personal care free of charge in certain circumstances to people with the highest needs and the additional investment in the wider social care system and acknowledges the importance of reablement. In the commission’s view, the Bill does not discriminate against those in residential care and the policy of providing free personal care at home is reasonably and objectively justified as a proportionate means of achieving a legitimate aim, and is thus compliant with obligations under the European Convention on Human Rights. We recognise that the commission has some underlying concerns about implementation and the impact on others with social care needs should local authorities not realign their services as a result of the Bill. We are committed to addressing these concerns as part of supporting councils to prepare for implementation and we hope that some of the debate in Committee has gone some way to reassuring the commission. Amendment 36 would require the Secretary of State to report annually to Parliament on the compatibility with the European Convention on Human Rights of regulations relating to the provision of free personal care at home. As the Bill states, it has already been certified that in our view the Bill is compatible with the European Convention on Human Rights, and a detailed, well read and thorough memorandum setting out the reasons for this has been sent to the Chair of the Joint Committee on Human Rights. In addition, the committee requested further evidence in relation to specific questions relating to the European Convention on Human Rights issues around the Bill, which the Minister for Care Services responded to on 29 January. We will give careful consideration to any points raised by the Joint Committee in its final report. The Government already seek to ensure that any secondary legislation and guidance are compatible with the convention, as required by the Human Rights Act 1998. The regulations which the Secretary of State will be enabled to make by this Bill, and any related guidance, will be no different in this regard. The noble Earl, Lord Howe, asked why the note was so long. This is because of Article 14 of the convention. The words cannot simply be taken at face value from the article, but have to be related to former judgments by the European Court of Human Rights and to a similar judgment in the House of Lords acting, as it was then, as the Supreme Court, in 2008, known as the RJM case. Essentially, he is quite right to point out that this fails the first test of discrimination, but it is justified by the argument that the policy is a proportionate response to a need. To quote the memo: ""The Department’s view is that the different treatment of people living at home is not discriminatory. This is because the policy underlying the different treatment pursues a legitimate aim in a proportionate way."" It has been argued that this is okay, provided that we are actually delivering the policy. I would not like to give the sense that we will not deliver the policy, as we believe that we will and that none of the traps or problems that have been used to illustrate the case will occur. It is very important, on this legalistically technical point, to realise just how far the policy would have to go before it was in any way threatened by the Human Rights Act, because the Act is about protecting individuals from an overbearing state. The Court has been particularly concerned that social policy should be an area where a wide measure of appreciation is accorded to the state by the Court, and I am told that "appreciation" is code for "latitude". It was also noted that, where there is a general rule, a line must be drawn, and it is for Parliament to decide where to draw it. The House of Lords noted that social policy is an area where the Court should be very slow to substitute its view for that of the Executive, especially where the discrimination is not on one of the express, or primary, grounds. Even under the most difficult circumstances, it is difficult to believe that the convention would be threatened. Nevertheless, we are concerned that this policy should be successful, and we have already said that there will be a review after 12 to 18 months. That review will need to assure itself that the policy is succeeding and is achieving proportionality. Through the process of looking at the Act and making sure all the orders and regulations are compatible, I believe there will be no risk that the Bill, its policy and its implementation will be incompatible with the Human Rights Act. The amendment would impose an unnecessary requirement, particularly as the regulations are highly unlikely to change annually. Given the generality of the Human Rights Act, which I have tried to describe, together with the fact that we will have a review and that the Government are generally bound by the Human Rights Act to implement policy in a way that is compatible with that Act, I hope the noble Earl will feel able to withdraw his amendment.