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The message that I take away from that is that, as long as the Government's assumptions prove to be correct as regards the number of people who are likely to benefit from the legislation, the policy is unlikely to breach the convention. The problem, it seems to me, arises if the Government's assumptions are not correct. As we have said a number of times, the figures quoted in the impact assessment come with a giant health warning. At best, they are an approximation; at worst, they bear little or no relation to reality. So we need to ask: what would happen if the numbers of those eligible for free care in the home turned out to be much larger than the numbers postulated in the impact assessment? What would happen if local authorities are unable to make efficiency savings sufficient to cover their share of the cost of delivering free care? What would happen if, as a number of councils are arguing, it proves impossible to deliver free care to a satisfactory standard within the assumed cash limits? The Government's assumption is that the time taken to deliver help with four activities of daily living is roughly one hour per service user per day, but some councils are saying that it would be double that. What if they are right?
The money would have to be found from somewhere. It could be found from an increase in council tax. It could be found from cuts in other local authority budgets. It could be found from increased charges for personal care to those who are not receiving their care free. Or it could be found by reducing the amount of personal care being delivered to those same people. If it is the last of these, we are in dangerous territory as far as the European convention is concerned. If local authorities were to withhold personal care from people who are in critical need but who require help with fewer than four activities of daily living, or if they were to withhold it from people with substantial care needs or from people with care needs in a lower banding, it could well make those people decide to move into residential care rather than to be enabled to stay at home.
In that situation we could indeed see more people receiving free care in their homes, but possibly fewer people receiving care in their homes overall. Should that occur, then a breach of Article 14 is a real possibility, because the Bill would have failed to achieve its stated objective of enabling more people to avoid or delay entering residential accommodation. We would have spent a lot of money favouring one group of people at the expense of a larger group of people. It could be argued that the result would be a disproportionate way of pursuing the policy objective.
In other words, ECHR compliance will be a matter of fact rather than theory. With all the uncertainties over the costing of the policy and all the worries being expressed by local authorities about its affordability,
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Lord Tunnicliffe: 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
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"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.
Baroness Gardner of Parkes: What exactly did the Minister mean when he said that the regulations are likely to change every year? Does he mean the regulations that we make in this country, or the European regulations? I am not clear.
Lord Tunnicliffe: I think I said that they were not likely to change. Either way, I was speaking to regulations made by the United Kingdom. The convention is a fairly steady piece of policy and is being developed more by case law than particularly by change.
Lord Lipsey: The Minister referred to the memorandum that was sent to the Joint Committee on Human Rights. In view of the fact that it is before that committee, will the Minister assure us-I am sure he will-that no regulations will be laid under this Bill until that committee has had a chance to consider the Government's memorandum and to offer its opinion to both Houses on it?
Lord Tunnicliffe: My Lords, I am not sure that I am content with the conditionality of that statement, but I am certainly happy to advise my noble friend that we expect the committee's final report to be available within days: indeed, probably tomorrow.
Baroness Masham of Ilton: My Lords, does the Minister agree that this gives strength to my amendment, which would ensure that people have a right to an independent appeal so that these matters can be sorted out at home rather than having to go to Europe?
Lord Tunnicliffe: My Lords, I am trying to say that the compatibility of the Act and its regulations with the convention is in no doubt. We do not think that the extra reporting which the amendment would require is justified. The Government will implement this Act in a way that will be compatible with the convention.
Earl Howe: My Lords, I am grateful to the Minister for his reply. He is correct; the Bill is compatible with the convention, but for the simple reason that it contains very little. The regulations may well be compatible prior to their implementation. What is in question is whether the Bill and the regulations, in their implementation, will breach the convention because of the unintended consequences that may ensue.
The Minister is right to advise the Committee that the European Court of Human Rights has been reluctant to intervene in social policy. However, I am advised that a legal challenge that is based on the relevant articles of the convention might well engage the Court's attention, should the effect of the Bill, contrary to intention, prove to be disproportionate. This question must hang in the air, and we shall all be very interested to read what the Joint Committee says. I am a little sorry that the Minister could not answer his noble friend Lord Lipsey categorically, because, should the committee report adversely, the Government would have every case for withholding any further action on this Bill, although that may be unlikely in the circumstances. We can, however, take comfort from the fact that the Government are committed to reviewing the workings of the Act within 12 to 18 months, which will give us the opportunity to look at these matters further. With that, I beg leave to withdraw the amendment.
Lord De Mauley: My Lords, our Amendment 1 would remove what we see as the most unnecessary part of a clause that we on this side see little point in having in the Bill at all. I will not go back over all our objections to Clause 1, which we laid out in Committee. I will instead restrict comments to this amendment. As was highlighted during the Committee's consideration of this clause, and as was hinted at earlier, Ofcom already has a duty to encourage efficient investment in infrastructure, so could the Minister explain why we need a new duty on top of the established one? What difference will this new duty make? Will it not, as my noble friend Lady Buscombe said, simply muddy the waters?
There could well be duplication and confusion from Ofcom exercising its functions under the Communications Act 2003 and the duty that the Government have set out in this Bill. We asked similar questions in Committee, but the answers were not enlightening. The Minister argued:
We agree but, as has been pointed out, under Section 3 of the Communications Act 2003 the regulator is already responsible for this issue, so I am not reassured by this argument. More significantly, when addressing the specific question of whether the duty was needed, and whether there would be any overlapping, the Minister argued:
I am not entirely certain what that means. The key concern with this clause is that it does not seem necessary. It will, we feel, simply create confusion and overlapping functions. Could the Minister explain more fully quite why he thinks that this will not be the case and what is so wrong with Ofcom's existing duties, which include encouraging investment in infrastructure, that it is necessary to repeat this part of their duties? If the purpose is to underline this part of those duties, could it not have been done in a way that made the point without resorting to legislation?
It would be helpful if the Minister could explain why the existing duty cannot deliver these upgrades. For instance, digital television switchover is already happening. It is being funded by the licence fee and, as far as I am aware, Ofcom does not have much of a role in the process. I would imagine that radio switchover could happen in much the same way.
I do not doubt that the regulatory environment needs to change to help to speed up investment in next-generation broadband, but would it not have been better to identify which specific measures are needed? Instead, we have this broad yet unfocused power that the Government are not entirely sure will result in much change. I am afraid that it looks as if the Government are simply adding a duty to give the appearance of action. As with so many things, the Government's response to a problem seems to be more regulation. Unless the Minister can explain exactly what marks out the duty as necessary and distinct from an existing duty, there is no reason to include it in the Bill and there is certainly no reason for this part of the clause. I beg to move.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Lord Young of Norwood Green): My Lords, I made it clear in Committee that new subsection (1A)(a) places a clear requirement on Ofcom to consider the need,
There is a clear requirement on Ofcom to consider promotion of investment systematically. Currently, Ofcom is required simply to have regard to the desirability of encouraging investment when it appears to be relevant in the circumstances. It is therefore a significant change of emphasis and an important change in the way in which Ofcom carries out its duties. It would be incredibly short-sighted of us to miss this opportunity to ensure that the regulatory environment for these vital sectors encourages investment and growth.
Our policy objective as set out in the Digital Britain White Paper was clear that the general duties of Ofcom should be qualified by the need to promote investment. We concluded that the best way of achieving this was by the creation of a new Section 3(1A) (a), (b) and (c), which place a specific requirement on Ofcom to,
when performing its principal duty. In light of the considerable debate that your Lordships have stimulated,
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As the right reverend Prelate the Bishop of Blackburn admirably said in Committee, maintaining the duty for Ofcom to promote investment in infrastructure and public service content so as to help to secure our economic and social prosperity in the future,
Removing that obligation on Ofcom to promote investment in our communications networks of the future would send an entirely wrong message about our commitment to such a programme of improvement. The duty will not cause confusion. It would not be right to state specific measures, but it is important to encourage investment when it appears to be relevant in the circumstances. It is an important change of emphasis; it is now a principal duty. I hope that in the light of that explanation the noble Lord will feel able to withdraw the amendment.
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