Care Bill [Lords]

Public Bill Committee, 21 January 2014.

Clause 39 - Where a person’s ordinary residence is

Andrew Rosindell (Conservative, Romford)

With this it will be convenient to discuss new clause 20—Portability of care—

‘(1) The Secretary of State must prepare a report containing an assessment of what primary or secondary legislation would be required to ensure people in receipt of care and support in the community in the UK receive continuity of such care and support if they change their place of residence, with particular reference to moves between countries of the United Kingdom.

(2) The report under subsection (1) must be laid before each House of Parliament six months after this Bill receives Royal Assent.’.

Liz Kendall (Labour, Leicester West)

I am delighted to be back today, and welcome those attending the Committee who are not hon. Members or their staff, or officers of the Commons. It is nice to see some people here today.

I will speak to our new clause 20, which is about the portability of care packages. The Bill will allow people to take their care packages with them, if and when they move to different parts of the country. That is important because often when someone becomes frail and needs care and support, families start to discuss whether Mum or Dad might be able to move closer, so that they can help to look after them—indeed, sometimes the person needing care and support thinks it might be better to move closer to their loved ones—but the portability of care packages between the nations in the United Kingdom is an issue that has been raised with Opposition Members. New clause 20 would require the Secretary of State to prepare a report on the legislation that would be necessary to make sure that people who receive community care packages are able to take those packages with them when they move between the different nations of the United Kingdom.

My hon. Friend the Member for Edinburgh East has raised that issue with me, with Ministers and with the Scottish Government. The key point is that although the Bill makes provision for people to take residential care packages with them when they move, say, between England and Scotland, there is no such provision for community or home-based care. As we have said many times before, ensuring that people can stay living independently in their own home is the key challenge for the future. The Bill rightly gives people the ability to take a residential care package with them when they move, which is a good step forward, but we need to make sure that that applies equally to people who have community-based packages of care and support and are moving between England and the devolved Administrations.

My hon. Friend has taken the issue up because she has a constituent, Mr Neil Kenny, who is paralysed from the chest down and uses a wheelchair, and who previously received funding for his care package from Greenwich council. He wanted to move to be closer to his family, who live near Edinburgh, but Greenwich council indicated that it was unwilling to continue to contribute towards the care package if he moved, and Edinburgh council also said that it was unwilling to contribute. The disagreement took place over four years, from 1996 to 2000, and when Mr Kenny eventually moved to Edinburgh, he had to pay for his own care and incurred a lot of debt. Although Edinburgh council eventually agreed to start paying for his care, Mr Kenny rightly contends that people with disabilities should be as free as anyone else to move from one local authority to another, which he feels is not possible now because of the ambiguity of the law in this area.

The care Minister has helpfully corresponded with my hon. Friend, as have Scottish Ministers, but beyond saying that the care systems are different in each nation, that it is hard to apply rules across borders and that the devolved Administrations are working on all this, we do not seem to have moved much further on from when my hon. Friend first raised the issue. The new clause is designed to give Ministers a positive, but forceful push to set out precisely what needs to change, whether in primary or secondary legislation, to make the transfer of home care packages possible between the nations of the United Kingdom, and oblige them to do so within six months of the Bill receiving Royal Assent. The care Minister has said, “We’re looking at this,” but we have seen no more details, so the amendment would ensure that the Government get a bit of a wriggle on and do it. It is important, because this is the United Kingdom—I am sure all hon. Members present believe that. We want to ensure that people can move to be with their families, wherever they are. The amendment is a push to the Government to sort out the problem.

Norman Lamb (Liberal Democrat, North Norfolk)

It is an enormous pleasure to be back again. I thank the shadow Minister for her speech and for her new clause. I completely agree that within the United Kingdom—something that she and I strongly support—it is important that we do what we can to facilitate people moving, in particular to be close to family when care needs develop. I am pleased that the Bill achieves a substantial advance in that direction, but the hon. Lady raises a legitimate issue, so let me try to deal with it.

Given the different legislative frameworks operating in the different territories of the United Kingdom, transfers of care across borders present a complicated set of issues, as I am sure the hon. Lady recognises. The placement of people in residential care has been talked about for two decades, which makes one begin to realise how complicated getting agreement is. What we have achieved with the Bill is a fantastic advance. Officials in my Department have worked closely with their counterparts in the devolved Administrations over the past year to develop and agree the provisions of the Bill. It is important to be clear about the distinction between, on the one hand, a local authority funding and placing a person in a care home in a different part of the UK and, on the other, situations in which persons receiving care in their own home independently move to a different country, but wish to keep their current care package.

In the case of local authority-funded placements, an individual and the local authority work together to draw up a suitable package of care that includes a move to residential care in a different country of the UK. Schedule 1 puts in place a legislative framework that will make clear the principle that, when such care is arranged, generally the placing local authority will retain responsibility for the individual concerned. It is worth pointing out that we do not expect this situation to arise frequently. We are talking about tens of placements each year, not thousands.

The new clause deals with a different situation, as the shadow Minister explained, in which individuals receiving care in their own home move to a different territory in the UK, but remain in a home of their own after the move. In such a situation, the individuals would normally become ordinarily resident in their new local authority area, and that local authority would therefore be the responsible authority should the individual require services from a local authority.

I am confident that what concerns hon. Members is ensuring that, when the person moves, that person’s care will continue and that there is no break in care arrangements during the move. That is what everyone is rightly concerned about. Given the inherent complexity involved in trying to reconcile four separate legal frameworks, the Government’s approach is to work with devolved Administrations to develop understandings in principle about cross-border continuity of care that achieve the same practical effect as further legislation.

The principles will set out what the local authority for the area where the person currently lives and the authority that he or she is moving to have to do to ensure continuity of care, such as both authorities sharing information and maintaining contact during the process. We absolutely agree with the principle of cross-border continuity of care—it just makes sense to everyone—but the complexity of any further legislation is such that is more effective to develop understandings in principle and practical co-operation between local authorities and those devolved Administrations that achieve the same practical effect as legislation. I hope that hon. Members feel sufficiently reassured that we share their aims and are working to achieve them, and that they will not press the new clause.

Liz Kendall (Labour, Leicester West)

The trouble is, we need a timetable. Can the Minister spell that out? The new clause does not seek to set out all the details here and now—that would be very complicated and would probably be a whole other chunk of the Bill. Instead, it says that there should be a report setting out whether primary or secondary legislation is needed and a timetable for that. I am concerned that we will let the process drag on when it is important that we do it quickly. Do the Government intend to publish any kind of report or policy document on this matter, and if so, when? If I had a commitment on timing and publication of something clear, I would consider not pressing the new clause.

Norman Lamb (Liberal Democrat, North Norfolk)

I take the hon. Lady’s point. I can confirm that we are speaking to the devolved Administrations and looking to have principles in place by November this year. I am happy to commit to writing to her in November to confirm that we have achieved that, as I hope we do, and if we have not, why and what the time scale is likely to be. I hope that helps the hon. Lady.

Liz Kendall (Labour, Leicester West)

That is a very welcome commitment. May I cheekily ask if he would also inform my hon. Friend the Member for Edinburgh East when this happens? She raised this matter with me on behalf of her constituent and has had a bit of a battle getting attention. If the Minister will make sure that this happens and writes to me, then I am prepared to withdraw the amendment.

Andrew Rosindell (Conservative, Romford)

I am advised that withdrawing the amendment is not procedurally accurate at this point, because it is a new clause.

Liz Kendall (Labour, Leicester West)

Then when we come to vote on all the new clauses, which is what I assume will happen, I am prepared not to press it to the vote.

Andrew Rosindell (Conservative, Romford)

I am advised that the clause is not moved.

Clause 42 - Enquiry by local authority

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to move amendment 42, in clause 42, page 38, line 13, at end add

‘if the local authority has reason to believe enquiries are being impeded such that it cannot determine whether any action is necessary it shall record whether or not an application for an adult safeguarding access order was considered or made under section [ ].’.

Andrew Rosindell (Conservative, Romford)

With this it will be convenient to discuss the following:

Amendment 116, in clause 42, page 38, line 14, leave out subsection (3) and insert—

‘(3) “Abuse” includes—

(a) physical abuse;

(b) sexual abuse;

(c) psychological abuse;

(d) financial abuse, which includes—

(i) having money or other property stolen;

(ii) being defrauded;

(iii) being put under pressure in relation to money or other property; and

(iv) having money or other property misused;

(e) neglect and acts of omission;

(f) discriminatory abuse; and

(g) other, as guidance may specify.’.

Amendment 117, in clause 42, page 38, line 19, at end add—

‘(4) A relevant partner (as identified in section 6(7)) has a duty, where it has reasonable cause to suspect a person is an adult at risk of abuse or neglect, and the adult appears to be within the local authority’s area, to inform the local authority of that fact.’.

Amendment 118, in clause 42, page 38, line 19, at end insert—

‘(4) In the case of financial abuse, investigation may be instigated following a complaint from a person with power of attorney for an adult having needs for care and support.’.

New clause 3—Adult safeguarding access order

‘(1) An authorised officer may apply to a justice of the peace for an order (an adult safeguarding access order) in relation to a person living in any premises within a local authority’s area.

(2) The purposes of an adult safeguarding access order are—

(a) to enable the authorised officer and any other person accompanying the officer to speak in private with a person suspected of being an adult at risk of abuse or neglect;

(b) to enable the authorised officer to assess the mental capacity of a person suspected of being an adult at risk of abuse;

(c) to enable the authorised officer to ascertain whether that person is making decisions freely; and

(d) to enable the authorised officer properly to assess whether the person is an adult at risk of abuse or neglect and to make a decision as required by section 41(2) on what, if any, action should be taken.

(3) While an adult safeguarding access order is in force, the authorised officer, a constable and any other specified person accompanying the officer in accordance with the order, may enter the premises specified in the order for the purposes set out in subsection (2).

(4) The justice of the peace may make an adult safeguarding access order if satisfied that—

(a) all reasonable and practicable steps have been taken to obtain access to a person suspected of being an adult at risk of abuse or neglect before seeking an order under this section;

(b) the authorised officer has had regard for the general duty in section 1 (Promoting individual well-being) in making a decision under subsection (1).

(c) the authorised officer has reasonable cause to suspect that a person is an adult who is experiencing or at risk of abuse or neglect;

(d) it is necessary for the authorised officer to gain access to the person in order to make the enquiries needed to inform the decision required by section 41(2) on what, if any, action should be taken;

(e) making an order is necessary in order to fulfil the purposes set out in subsection (2); and

(f) exercising the power of access conferred by the order will not result in the person being at greater risk of abuse or neglect.

(5) An adult safeguarding access order must—

(a) specify the premises to which it relates;

(b) provide that the authorised officer may be accompanied by a constable; and

(c) specify the period for which the order is to be in force.

(6) Other conditions may be attached to an adult safeguarding access order, for example—

(a) specifying restrictions on the time that the power of access conferred by the order may be exercised;

(b) providing for the authorised officer to be accompanied by another specified person; or

(c) requiring notice of the order to be given to the occupier of the premises and to the person suspected of being an adult at risk of abuse.

(7) A constable accompanying the authorised officer may use reasonable force if necessary in order to fulfil the purposes of an adult safeguarding access order set out in subsection (2).

(8) On entering the premises in accordance with an adult safeguarding access order the authorised officer must—

(a) state the object of the visit;

(b) produce evidence of the authorisation to enter the premises; and

(c) provide an explanation to the occupier of the premises of how to complain about how the power of access has been exercised.

(9) In this section “an authorised officer” means a person authorised by a local authority for the purposes of this section, but regulations may set restrictions on the persons or categories of persons who may be authorised.’.

New clause 4—Duty to report adults at risk of abuse

‘(1) If a relevant partner of a local authority has reasonable cause to suspect that the local authority would be under a duty to make enquiries under section 42, it must inform the local authority of that fact.

(2) If the person that the relevant partner has reasonable cause to suspect would be the subject of enquiries under section 42 and appears to be within the area of a local authority other than the one of which it is a relevant partner, it must inform that other local authority.

(3) If a local authority has reasonable cause to suspect that a person within its area at any time would be the subject of enquiries under section 42 and is living or proposing to live in the area of another local authority (including a local authority in Wales, Scotland or Northern Ireland), it must inform that other local authority.

(4) In this section “relevant partner”, in relation to a local authority, means—

(a) the local policing body and the chief officer of police for a police area any part of which falls within the area of the local authority;

(b) any other local authority with which the authority agrees that it would be appropriate to co-operate under this section;

(c) any provider of probation services that is required by arrangements under section 3(2) of the Offender Management Act 2007 to act as a relevant partner of the authority;

(d) any provider of regulated activities as listed in Schedule 1 to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010;

(e) a local health board for an area any part of which falls within the area of the authority;

(f) an NHS trust providing services in the area of the authority; and

(g) such person, or a person of such description, as regulations may specify.’.

New clause 19—Corporate responsibility for neglect

‘(1) This section applies where a person registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008 (a “registered care provider”) in respect of the carrying on of a regulated activity (within the meaning of that Part) has reasonable cause to suspect that an adult in their care is experiencing, or is at risk of, abuse and neglect.

(2) The registered care provider must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case and, if so, what and by whom.

(3) Where abuse or neglect is suspected, the registered care provider is responsible for informing the Safeguarding Adults Board in its area and commits an offence if (without reasonable cause) it fails to do so.

(4) A registered care provider is guilty of an offence if the way in which its activities are managed or organised by its board or senior management neglects, or is a substantial element in, the existence and or possibility of abuse or neglect occurring.

(5) A person guilty of an offence under this section is liable on conviction to imprisonment for a term not exceeding five years, or to a fine, the range of which will be specified by regulations, or to both.’.

New clause 22—Duty of candour

‘(1) Local authorities must take reasonable steps to create an open and honest culture that enables employees to report reasonable suspicions of abuse and neglect of individuals in the care of the local authority or a provider commissioned by the local authority.

(2) “Reasonable steps” include—

(a) ensuring that staff are aware of and trust processes open to them;

(b) provision of advice about the process;

(c) review of procedures; and

(d) regular communications to staff about the processes.’.

New clause 23—Offence of abuse of adult in care

‘Any person who wilfully causes or permits an adult who has care and support needs to suffer physical or mental pain or injury or, having the care or custody of that adult, wilfully causes or permits the person or health of that adult to be injured, including through the neglect of their care and support or health needs, or wilfully causes or permits that person to be placed in a situation that endangers his or her person or health, including mental health, is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both,

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or both.’.

New clause 24—Offence of corporate neglect

‘In section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007, insert—

“1A Corporate neglect

(1) An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised—

(a) cause a person to suffer abuse or neglect;

(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the person who suffers abuse or neglect; and

(c) the offence under this subsection is called corporate neglect.’.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

This is a large group of amendments covering a range of important issues. It touches on the dark side of the Bill and issues of abuse, neglect and exploitation. It raises questions of definition and of duties on others to report suspicions about abuse. This is particularly addressed to the health service where often there have been concerns that health providers from some organisations have not been as good as they could be when it comes to their safeguarding responsibilities. It also raises questions about powers of entry, issues of wilful neglect and the applicability of existing law, and crime reporting and accountability.

I will quickly take the Committee through the thinking behind amendment 42, new clauses 3, 4, 23 and 24. Clauses 42 to 47 will put into primary legislation for the first time the obligation on local authorities and others to safeguard people from abuse and neglect. That is not to say that it was not there before; it was in statutory guidance, but this will be the first time that it has been clearly codified in primary legislation.

When the Joint Committee looked at this part of the Bill, we made a number of suggestions, for example, that greater emphasis should be given to prevention. The Government are clear that this is one of the points that needs to be part of a good, functioning safeguarding system. They are seeking to avoid the circumstances and conditions in which a person becomes vulnerable and a victim of abuse and neglect. None the less, there are far too many people who are victims of those things.

The Government also thought carefully about the implications of clause 42, which is the inquiry duty, where a local authority has reason to believe a person is experiencing or is at risk of abuse and neglect and is unable to protect themselves because they have care and support needs. We concluded that the duty to make inquiries was very welcome but not sufficient. It prompts the question that, if there is a duty, what are the mechanisms by which it can be made a practical, working reality? We agreed with the Law Commission that there is a gap in the law in this area. This is not about the individual who is a victim, other than making sure that person gets relief and protection at the earliest opportunity. It is about what happens—as it does in many cases—when a third party, a family member or a close acquaintance actively prevents inquiries being made under clause 42.

What happens when a person is too frightened to speak up, is under duress, or is effectively a prisoner in their own home? Ultimately, we are told, the High Court has jurisdiction to act. It can hear any matter that comes before it; that is where the buck stops. This is a very rarely used power of inherent jurisdiction. I know that the Minister takes some comfort from this principle of inherent jurisdiction, but I and the Joint Committee do not believe that this is sufficient.

I will give the Committee some context. The most relevant and recent figures are those for England. They show that 40% of safeguarding referrals are about people living in their own home. There is a myth that the majority of all types of abuse takes place in more formal settings; an awful lot takes place in people’s own homes. Research commissioned by the Department of Health, funded by Comic Relief some years ago and undertaken by King’s college, suggested that more than half of perpetrators of elder abuse live in the victim’s own household. The same prevalence study also suggests that the true level of abuse is much, much higher than the official statistics would suggest. Indeed, some work done for me by the House of Commons Library estimates that on the most recent population figures, more than 370,000 old people suffer from abuse or neglect in any one year. I stress that I did not conjure that figure out of thin air. It comes from that prevalence study updated for the most recent population figures. It is the UK study of abuse and neglect of older people. That research excluded single incidents and people who lack capacity. So it does not even touch the whole of the likely scale of the problem.

Given the scale of the problem, it seems hard to imagine that we should place confidence in the inherent jurisdiction of the court or, for that matter, existing powers in other statutes that may or may not be applicable. They have surely been weighed in the balance and found wanting because they have not been used regularly, routinely or, it would seem, more than rarely. It has been argued that the current law is sufficient and I question that. Let me go through some of the examples of why it should be questioned.

The Police and Criminal Evidence Act 1984 is offered up in these debates. Is that really credible? It has been suggested that the police retain a common law power of entry without warrant. I understand—I hope the Minister can cite chapter and verse on why perhaps my understanding is wrong—that that common law power of entry without a warrant was abolished by PACE. It would be useful to know whether that is the case. If the Minister cannot set that out today could he write to us urgently about that?

The Court of Appeal ruled in 2005 that a power of entry under PACE turns on whether a

“real and present threat to the peace”

can be shown, to save life or limb, or to arrest someone who has committed a crime. In other words, a high threshold is set and it is directed to the perpetrator, not to the protection of the victim of abuse.

Meg Munn (Labour, Sheffield, Heeley)

Does the right hon. Gentleman agree that without a proper framework to address this issue it is difficult for social workers working in communities to approach their local police force and expect a response that would help them to move forward? Given all the pressures on the police, this is, thankfully, a relatively minor issue in police terms and therefore it is difficult for social workers to get that support or even to think of using that method.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The hon. Lady makes an important point about the concerns that practitioners have in this area. The police give this a relatively low priority. Clarity in primary legislation would help, underpinned by guidance to support practice in future. We can look to the experience in Scotland and draw some conclusions, albeit the legislation is different. I will come on to that in a minute.

It is hardly surprising that the power in PACE is hardly ever used. Some say that section 2 of the Criminal Justice Act 1987 could be used but, again, the test in this case, which is of serious or complex fraud or corruption, makes its use impractical as a means of having a private conversation with someone suspected of being at risk of abuse or neglect. The matter at hand is about someone’s right to take decisions which we in this Committee and others in their community might just judge to be against their best interests. This is not about granting any state authority the power to usurp an individual’s autonomy to make what we might consider to be bad decisions. It is not about that first party; it is about the acts of a third party in this case. That is where that autonomy has already been compromised by that third party—someone living with the person being subject to abuse or neglect.

I labour that point because it is not clear to me and to others who have looked at the responses to the Department of Health’s consultation that this was understood by all those who objected to this provision. The vast majority of organisations, non-governmental organisations, local authorities and health bodies supported a limited, quite tightly circumscribed power of entry of the sort I propose in new clause 3.

In its evidence to the Committee, the Equality and Human Rights Commission stated:

“If a public authority...knows, or ought to know, that a vulnerable person is suffering ill-treatment, it may be under a positive obligation to take urgent steps to stop the abuse. The proposed amendment”—

my new clause—

“would facilitate the fulfilment of this positive human rights obligation.”

I have examples from work done by the College of Social Work of what that might mean in practice. For example, an older man was not allowed to see a care worker or a social worker without his daughter being present. In that case, the daughter was subsequently convicted of his murder, and that is a good reason why we should be considering the circumstances of individual cases.

Another example was of a man who had learning disabilities. He was being abused by his family, but they would not allow access to the social workers on the grounds that he was afraid of the social workers. In fact, it was his family that he feared. Again, when the social workers eventually managed to find a route to gain access, the family were abusive to the social workers.

A son was stealing from his mum and preventing her from meeting social workers alone. It came to light only after the son had had an accident and was removed from the equation by that act of God or that act of incompetence on his part. All such cases—there are others in the material that the College of Social Work provided—suggest we need to do something.

New clause 3 provides a proportionate power to support the duty to make inquiries in clause 42. It gives the courts oversight and sets clear conditions that must be satisfied before an access order is granted. The revised new clause 3—I apologise for the slight redrafting, which was to try to reflect the concerns that I have heard from objectors—also makes it clear that before an order is granted all reasonable steps must be taken to gain access, and also that the well-being principle should be properly considered. It is worth remembering that the whole of part 1 of the Bill hinges on clause 1, and clause 1(3) (a), (b), (d), (e), (g) and (h) set out all the considerations that would be the additional checks and balances and safeguards—the objectors, who are the minority, have none the less have been deemed to be the majority when it comes to objecting to such measures—that are there in the Bill already.

The practice evidence from Scotland is that the whole power is rarely used, but it is valued by practitioners as a backstop and an aid to negotiating access. In that way it will be creatively used in practice to achieve what the state should be using its power to achieve, which is to protect vulnerable people from the risk of abuse or actual abuse and neglect.

I hope the Minister will accept the new clause, although I fear, given the direction so far, he might not. However, I hope he will continue to open his mind to the possibility that this is an area where change is necessary.

New clause 4 is similar to the intentions behind amendment 117, although I hope it is less contentious. It simply places a statutory obligation on health bodies and a range of other public bodies to report where they suspect abuse or the risk of abuse. It is about making sure there are more sentinels in our communities who are spotting and acting. Too many cases of abuse that are not being picked up quickly enough can be traced back to failings of other public bodies and are not solely or indeed primarily a failure of the local authority. We need to make sure that the duties are clear and in the Bill for other public authorities. The new clause also serves to heighten awareness that safeguarding is everybody’s business, not only the local authority’s.

New clause 24 reflects some of the sentiments contained in new clause 19, tabled by the hon. Member for Blaenau Gwent. I have added my name to his new clause because I share his intention. Both new clauses deal with corporate neglect, an issue tragically highlighted by the events at Winterbourne View and by the work of Operation Jasmine, which I am sure the hon. Gentleman will talk about when speaking to his new clause. Winterbourne View saw sustained, shocking abuse, and the 11 perpetrators of those crimes rightly ended up in the dock and were punished for what they did. But those who owned, managed and sat on the board of directors of Winterbourne View were not punished. They failed in their duty of care. In the words of the judge in the case,

“A culture of ill-treatment developed”

that “corrupted and debased” the staff, “all of whom” were “of previous good character”. That points to what many believe they witnessed at Winterbourne View: a care provider that betrayed those in its care and left unchecked a culture that bit by bit tolerated ever more degrading treatment, and a culture of cruelty that was allowed to fester. As we heard last week, it charged £3,500 for the pleasure of being abused repeatedly.

New clause 24 would amend the Corporate Manslaughter and Corporate Homicide Act 2007 and widen its scope to include abuse and neglect. There is a gap in the law, and I tabled the new clause to probe the Government’s approach to corporate neglect. Clearly, the establishment of the new fundamental standards and the removal of the need to serve notice offers an alternative route. It would be helpful if the Minister said what steps are being taken to ensure that the drafting of those fundamental standards is as watertight as possible. If it is not, I am sure that a well paid QC could find their way through it and easily avoid prosecutions. We must ensure that it is as judiciable as possible and effective when it comes to enforcement.

It is not about acts of commission, but acts of omission by boards of directors of care organisations that do not take their duty of care seriously and do not get out on the shop floor of their organisations. Using the corporate manslaughter legislation would remove the defence, “I did not know what was going on in my organisation.” In other words, there would not have to be a guiding mind actively soliciting the abusive behaviour for the directors to be subject to criminal prosecution. I hope the Minister will be able to reassure me on those points.

New clause 23 would close another gap in the law, which was identified by the Law Commission. In English law, there is no offence of wilful neglect or ill-treatment, unless the person lacks capacity or falls under the ambit of the Mental Health Act 2007, in which case there are offences. I do not think that is right, nor do many of the organisations that made representations to the Joint Committee. In his review for the Government, Don Berwick said that the Government should create

“a new general offence of wilful or reckless neglect or mistreatment.”

He argued in his report, entitled “A promise to learn—a commitment to act”, that legal sanctions should be available in those rare cases, and he proposed placing neglect and mistreatment on a par with what already applies for mental capacity.

During the House of Lords debate, the Government said that

“people who perpetrate or allow abuse and neglect must face serious consequences, including prosecution”.—[Official Report, House of Lords, 14 October 2013; Vol. 748, c. 340.]

Will the Minister tell us how that will be translated into law? Is there an intention to legislate?

In conclusion, I will touch briefly on amendment 116 and new clause 22, and report some of the Joint Committee’s findings. Amendment 116 would widen the definitions in the Bill. I understand why the Opposition seek to do that. However, the Joint Committee carefully considered the definitions, and we were persuaded that the common usage of “abuse” and “neglect”, as set out in dictionaries and elsewhere, is clear, but that the inclusion of “financial abuse” was not obvious. I would be interested to hear from the Minister what guidance the Government will produce to ensure that practice continues with the common usage of those words to understand what abuse and neglect are.

New clause 22 is about the duty of candour, which is covered in clause 80. It would be useful if the Minister reconfirmed that it will apply to social care as well, as he said in evidence to the Joint Committee. When will it apply?

Our debate today is about human rights. This set of amendments is about ensuring that our obligations are clear. It is about people abused in their own homes by families and acquaintances. That is a hard thing to talk about, but we need to be clear about our obligations and ensure that the right protections are in place. The state has a positive obligation to protect such people. The Bill enshrines the duty to inquire, but it falls short by not giving a carefully circumscribed power to gain access where a third party is blocking access.

What happens to those people? We know. They live insufferable lives and are abused because successive Governments have not put in place the necessary power. The Bill gives us the opportunity to do that, and this new clause is the means. I hope that the Minister will be able to give us some positive responses.

Liz Kendall (Labour, Leicester West)

The set of clauses about adult safeguarding is important. It is welcome that the Bill will place that subject in statute for the first time. We have had legislation for many years in relation to children’s services, and it is absolutely right that we are now bringing the issues together and legislating for adult safeguarding. I think Members on both sides of the Committee want to try to get it absolutely right first off, to cover all the issues effectively, so that we have a great piece of legislation that is clear to the people who use and provide services and so that we can make it work.

That is the context in which we have tabled a series of amendments and new clauses. My hon. Friend the Member for Blaenau Gwent will speak about new clause 19. I might make a couple of brief comments about it, and about new clause 24, which the right hon. Member for Sutton and Cheam tabled. I will also touch on the important issue of power of access and entry, about which the right hon. Gentleman has just spoken.

However, I want to speak predominantly about amendment 116, which would spell out a definition of abuse in the Bill, so that all the issues are covered and the Bill does not focus on only one particular type of abuse. Amendment 117, which is quite similar to one of the amendments that the right hon. Member for Sutton and Cheam tabled, would extend the duty on reported suspected abuse to the relevant partners of a local authority, such as the police, the NHS and the probation service.

Amendment 118 would make it clear that, when someone who has a power of attorney reports suspected abuse, such as financial abuse, the local authority may talk to them about what is happening to the victim and is not prevented from doing so by laws on data protection. Anyone who has themselves had to take on that power of attorney, or has family members or constituents who have had to do so, knows that it is an important role. Those people want to stand up for and support their loved ones. If they suspect that financial abuse is taking place, it is important that their views are listened to.

New clause 22 seeks to introduce a duty of candour for local councils, just as the Bill seeks to introduce such a duty in the NHS, to ensure that there is a fully open culture in local councils as well as in our health service.

I want to start with defining abuse. There have already been debates about that in the Lords. With amendment 116, we have changed the amendment slightly compared with how it was tabled in the Lords. The amendment in the Lords was tabled by Baroness Hollis and Lord Ricks. Mencap raised the issue was raised with them to ensure that the kinds of abuse that the Bill seeks to prevent or reduce are fully described in it.

The Bill, rightly, defines financial abuse, in order to protect vulnerable adults from the examples we have seen, whether in care homes or in their own homes, where their money was stolen or where they were wrongly or persistently charged for services and support. However, the Bill does not define other types of abuse, leaving them instead to be spelled out in guidance.

Some organisations are concerned that having a more explicit definition of financial abuse but not of other types of abuse means that financial abuse will be given priority over other types of abuse. Amendment 116 spells those other types out, and covers physical, sexual and psychological abuse, neglect and acts of omission, discriminatory abuse and—a key element—other types of abuse, as the guidance may specify. In the House of Lords, the Minister said that if we were too prescriptive we would have to put every single possible type of abuse in the Bill, so we have added the final subsection to the amendment to give the Government the ability to set out more in guidance.

Amendment 116 would give the Bill a better framework of the types of abuse that it will cover. I hope the Government will accept it, because it is important that the kinds of abuse to which vulnerable people are subjected are spelled out more broadly in the Bill. It defines financial abuse in detail but not other types of abuse.

Amendment 117 would extend the requirement in the Bill to make sure that the police, the NHS and probation services—we are also suggesting housing associations—are under a duty to report suspected abuse to the local authority. As the right hon. Member for Sutton and Cheam said, we have seen many cases concerning children’s services in which different parts of the system have not worked together and people have not informed others when they have suspected abuse. We want to make sure that that does not happen when we are legislating about care and support for vulnerable adults. Everybody who works with older and disabled people who are in care should be under a duty to report abuse if they suspect it. That would send a clear message to people working in all those parts of the system that they are under a legal duty to report suspected abuse, and would make a big difference.

Amendment 118 would allow that, in the case of financial abuse, an investigation could be instigated after a complaint from a person with the power of attorney for an adult who has care needs. That would mean that if that person, who is usually a family member, wanted to report suspected abuse, local authorities could not be prevented from acting or even talking to them by concerns about data protection. I pay tribute to Baroness Byford, a Conservative Member of the other place who spoke to an amendment on the same issue in the Lords. It would give local authorities a clear understanding that they are not going to be hauled over the coals for breaching data protection if they listen to and act on concerns about financial abuse and theft when those concerns come from family members with the power of attorney.

If a daughter suspects that someone is stealing from her mum, she has every right to be outraged by that and to try to stop it, and for people to take her concerns seriously. The idea that data protection concerns should get in the way is surely not in keeping with the spirit of either the Data Protection Act 1998 or the attempt we are making in the Bill to improve safeguarding and clamp down on abuse. If I ever—God forbid—have to take over power of attorney for my parents and I think that there is a problem with financial abuse concerning them, I want my concerns to be listened to and acted on. That is what amendment 118 seeks to allow.

I will speak briefly to new clause 22 on the duty of candour—I have no doubt we will come back to and discuss that matter a lot when we consider part 2. I pay tribute to Baroness Greengross, who has been a stalwart champion of care issues over many years. She rightly felt that such a duty of candour should apply to any contract that a local authority awards to a community-based service. If people suspect abuse or are worried about poor quality care happening in different organisations and do not think that enough action is taking place, they should be able to blow the whistle but have their rights protected.

The new clause would extend the requirements on health and social care employers by introducing a duty of candour. All staff should have a professional duty to blow the whistle if they see practice that they believe puts the people they are supporting at risk of harm. Organisations must also have a clear whistleblowing procedure in place for when that bad practice is spotted. Such procedures should stipulate that, if a care worker or social worker sees abuse, mistreatment or neglect in any setting or has any questions about how treatment is affecting someone, whether they are responsible for that person directly or just come across them in the course of their work, they have a duty to draw that to the attention of both the managers of the service and the commissioners. There should be a follow-up afterwards to see if what was reported has been acted on.

That duty of candour, as part of changing the wider culture, is essential to improve the quality of care and support. The Health Minister or the care Minister will probably speak about the duty of candour on the NHS when we come to part 2, but that duty should apply to councils and the NHS. I therefore hope that the Government will accept the amendment.

I want to leave my hon. Friend the Member for Blaenau Gwent to speak to his proposal, new clause 19. The right hon. Member for Sutton and Cheam raised similar issues. We have seen evidence showing that, even where the care home owners may have understood or known that procedures were not in place to protect people from abuse, they did not take action. The people on the boards of those companies should be held to account if such evidence shows that they neglected their duties. Opposition Members really support the new clause. My hon. Friend will speak to it far more eloquently that I can, but it is essential that people are held to account properly. We can do that now in public services, but we need that accountability in private providers too.

I will finish with some comments on the power of entry and new clause 3, about which the right hon. Gentleman spoke. There has been a big debate about that, with strong views on either side. Some organisations are concerned that the power of entry, with access into homes, might infringe people’s rights to private lives, so they think that this measure should be set out in guidance, policy and practice. However, others are rightly concerned that, when they have a suspicion of third party abuse in someone’s house, they are denied access to check what is going on. We need to overcome that problem. Just as in the House of Lords, the Government Front Benchers said that, on balance, they accepted the need for a power of entry in tightly defined circumstances.

I appreciate what the right hon. Gentleman said about the issue. His new clause, just like that tabled in the House of Lords, would be strict about the criteria under which such an entry should take place. I have heard of several cases where family members have denied social workers who suspect financial abuse the right to access someone’s house, and other hon. Members will know of similar cases. Leaving such a measure to policy and guidance may not be enough to make those staff take action, because they will be less likely to try to get access if they are concerned that they would be breaking the law by doing so. Opinions differ on the issue but, as long as the clauses are tightly defined, it is essential that enable people to do that.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The shadow Minister is absolutely right about what this proposal is and what it is not. That is why I amended new clause 3 to make it contingent on a justice of the peace satisfying themselves that the well-being principles have been followed properly. One of those principles, as noted in clause 1(3)(h) of the Bill, is

“the need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.”

What is least restrictive is a principle that is now part of the safeguarding arrangement.

Liz Kendall (Labour, Leicester West)

The right hon. Gentleman has been careful in crafting his new clause, just as the amendments in the Lords sought a proper definition—but if there is suspicion of abuse by a third party, and that third party is denying a social worker or other relevant professional entry to determine what is going on, the balance needs to be tightly drawn. The real issue is how we protect people from abuse; if we have a tightly drawn set of amendments in this place, on balance we would support that, as we did in the House of Lords.

Meg Munn (Labour, Sheffield, Heeley)

I want to make a few remarks in support of the group of amendments and new clauses. As the Committee knows, we are arguing strongly for more people to be cared for at home by family and friends. The corollary of this is that more people will be open to potential abuse and neglect in situations in which they are not necessarily being seen regularly by other people. Upping our regulations and arrangements to ensure that we can protect and promote the welfare of people who are in their own homes, which is where they want to be, is essential.

It is most important to create the right culture in the social work and health professions and in residential institutions or supported living arrangements. Such cultures should at heart enable those who have the welfare of the people for whom they are caring to do the right thing and to be supported in law in doing so; discourage people who target elderly people for financial or other abuse; and ensure that other family members understand that they cannot—just because those people are a member of their family—choose to use their money to restrict their freedom in ways that we would not accept.

I support very strongly the need for a power of entry—one that would, as the right hon. Member for Sutton and Cheam has just explained, require social workers to obtain, in effect, a court order to enter, if they cannot gain entry by other means. That is enormously important, because although the power would not be used a great deal, those who represent the state and act on behalf of the elderly would have a right to request it and have the situation looked at. Without such a power, social workers will continue to be left in a very difficult position.

There are issues to do with privacy and mental capacity. We are clearly discussing people who would not be deemed to lack mental capacity, but we all know that, in any relationship involving family, care or a friend, people can put pressure on others in all sorts of ways. It can be difficult to do anything about this, for all the emotional reasons, especially when a person is vulnerable. Often, it is not that the professionals do not want the relationship or the caring to continue, but that they want the situation to be resolved in a way that promotes the dignity and safety of the elderly person. I do not think that I am putting it too strongly to say that we would be missing an opportunity to make safeguarding adults effective if we do not have power of entry.

I speak as somebody who worked in social work for 20 years. The majority of my work was in safeguarding children, and I know from that experience that the fact that I could, if necessary, ask for an emergency protection order to see children made a difference. It gave a sense of a backdrop of a court process. I can count on the fingers of one hand the number of times I had to go down that route. In reality, such orders do not happen, but they change the culture. I put it strongly to the Minister that to go ahead with all the laudable arrangements on safeguarding adults without a power of entry would be a mistake that I guarantee he will come to regret.

I also want to talk briefly about proposed new clause 22 on duty of candour. Such a duty is equally important, because, again, it is about culture change. As I have said, I know a great deal more about child protection. It is important to ensure that policies, procedures and laws are in place that do everything they can—they cannot completely stop it—to keep away from these areas of work people who do not have the best interests of elderly people at heart.

As the right hon. Member for Sutton and Cheam spoke, he took me back probably about 15 years to when I was a manager of both children’s and adult services. I recall the case of a manager of an elderly persons’ home, who, in addition to financial abuse, was involved in running a home where the staff were extraordinarily scared of her and where there was an atmosphere of lack of caring. Elderly people were told to hurry along, to go back to their rooms, not to do this, not to do that—the kinds of things that none of us would want to see any elderly person experience. Due to the power of the person in the management position, it was difficult for the staff to come forward and raise issues.

If we create a culture that says there is a duty of candour, alongside implementing the legislation, those local authorities and private, voluntary and charitable organisations that run such bodies and act properly—they would also be assessed as acting properly by the various inspectorates—would put in place training and guidance about the duty for their staff. They would have to do so and would have to have policies and procedures with regard to the duty. If staff had concerns, they would know that a duty of candour existed in law and they would therefore be likely to be supported if they raised an issue. In effect, the duty supports whistleblowers. Such a duty would be a welcome addition to whistleblowing procedures, which most local authorities now have.

I understand why it may not be possible for the Minister to accept the new clauses as drafted today, but I urge him to please go away and look at them. The issue is about practice on the ground. It is a long time ago now, but I know from all my years of trying to deal with complex situations involving families who have different views about what their relative’s situation should be, and about which social workers have real concerns, that clarity in law is enormously important to deal with these issues.

I want to talk briefly about amendment 116, to which I have added my name. I have some concerns about the drafting of the clause and whether it would achieve what we want it to achieve. However, the issue that has been raised is fundamental. I come back to the concern that somewhere in the legislation or in guidance, there should be clarity about the range of abuse being discussed —the fact that financial abuse appears separately—which could otherwise cause confusion.

I also want to talk about the term “discriminatory abuse”. I felt the terminology was difficult and could be misinterpreted, but the issue is important. It comes back to the “protected characteristics” that are found in the Equality Act 2010. People are abused on the basis of their ethnicity or disability, whether it is physical or, particularly, a learning disability. We have had horrific cases of people with learning disabilities being abused. This is an area of abuse that needs to be highlighted and specified. Without legislation that clearly includes all these issues, some people will be trained in this way and some authorities will look at them all, but not everyone. The Government have an opportunity here to set out the range of concerns and issues that need to be taken into account. That could be either in the Bill or in guidance, but it needs to be done.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

I support the amendments and new clauses because they would strengthen the safeguarding legislation, particularly for older people. I want to speak about my experience with my mother. As I mentioned before, she had Alzheimer’s disease and died in September 2012. My mother remarried and lived in the States, but in July that year, I was informed that she had been moved about 1,000 miles away from where we thought she was living. She had been moved away by a carer within the family who had got control of all my stepfather’s and mother’s finances and who had basically lifted them up and moved them down from New York to South Carolina.

Neither my brother nor I knew about that and we heard about it only when she was admitted to hospital and given a few days to live. When I arrived in the States, she was living in an absolute hovel, in a dire situation. It was dreadful, with rats; it was awful. We had not been informed. My stepfather had power of attorney and, knowing the system here but not knowing it particularly well over there, I contacted adult protection and the police, and I went to lawyers, the senator and the governor. Nobody wanted to know. Because he was a proud man, my stepfather did not believe that he had done anything wrong. He did not understand that this women, having access to all their personal details and accounts, had sold the property in New York that they lived in. It was dreadful.

People have had those experiences, and I want to ensure that, whatever legislation we pass, nothing like that can happen to anyone again. I queried with our local social services team whether my having raised the matter and escalated it automatically meant that a social worker would interview me—I could have been making things up, after all—but no one came to see me or my brother to find out what had happened. I want to ensure that any reported abuse is escalated and investigated and then, as my hon. Friends have said, to ensure that there is a power of entry. My stepfather would not meet or see anybody. My mother was not an American citizen and I realise that we do not have jurisdiction, but I want to ensure that this applies not just to British citizens but to anybody in this situation living in this country, so that they do not suffer the way that my mother did.

Similar circumstances have been reported to me by one of my constituents. I have mentioned my personal experience, but that situation is arising in this country as well, as the statistics show. We must take robust action for anybody who is vulnerable. We need to ensure that cases are escalated when reported and not just pushed under the carpet.

Sarah Wollaston (Conservative, Totnes)

I am sorry to hear of the experiences of the hon. Member for Oldham East and Saddleworth. She set out so clearly that human nature is as it is. Of course, the overwhelming majority of carers whom we all encounter do an extraordinary job and have the best interests of their loved ones at heart. However, I am afraid that is not always the case. I support new clause 3 because I feel it is better to have its provisions there and rarely have to use them, than it is to need to use them and not be able to access them, not to have that power of entry. As the hon. Lady set out so clearly, there are those who absolutely do not have the best interests at heart of those they purport to care for.

I have come across that in clinical practice, though thankfully rarely. As an MP I have heard cases that echo the themes raised in the hon. Lady’s very moving speech. I am sure that is the case for many hon. Members. Where such individuals know that there are no powers of entry, they can act with impunity. With these powers in place they will know that there is a final backstop. We agree that there needs to be a process. The changes in the new clause would bring in well-being principles and would reflect that the powers should be used in exceptional circumstances.

It is in everybody’s interests that the entry powers should be exercised through negotiation. That is the best way forward, and I am confident that the drafting of new clause 3 sets it out clearly. The powers would be used only in exceptional circumstances. As the hon. Member for Sheffield, Heeley, who has great experience in social work, says, if we do not have these powers we will have to come back at a future date to get them, because an avoidable tragedy has arisen. I would like us to do this now. Having sat through the evidence and considered the matter in the draft Bill Committee, I support my right hon. Friend the Member for Sutton and Cheam in saying that we need this provision. I hope that the Minister will reflect that view in his response.

Nick Smith (Labour, Blaenau Gwent)

I welcome the opportunity to move new clause 19. I will say right at the top that I do not plan to divide the Committee on the clause. I seek consensus in what is a very complex area.

I am a Welsh MP, and although health and social care are devolved matters, I was keen to serve on this Bill Committee because safeguarding and justice are issues for England and Wales. Some large providers In the social care sector operate in England and Wales and other parts of the UK, so corporate accountability affects us all.

I welcome very much the safeguarding elements of the Bill. I think they go a long way, but my recent experience of truly appalling neglect of elderly residents in care homes in south Wales leads me to conclude that we must go that extra mile to ensure that our safeguards deliver for care home residents. We must leave care providers in no doubt that their primary responsibility is the care of their residents. They must know that if they fail in this duty, they will be prosecuted for corporate neglect, with strong penalties if they are convicted.

The Government have the opportunity with this Bill to set the bar high and to shape the future culture and development of the care sector. I tabled the new clause, which is supported by Age UK, because last year saw the conclusion of Operation Jasmine—a six-year inquiry, costing £11.6 million, into 63 deaths in care homes in Gwent in south-east Wales. It was the largest investigation ever conducted by Gwent police and the largest residential care home inquiry ever conducted across the UK. However, just three convictions have been secured for wilful negligence since the start of the inquiry in 2005.

It took so long to bring charges against the director of the residential care homes that, by the time of his court case, which was scheduled in March last year, Dr Das had suffered an unrelated assault, which left him unfit for trial. It is interesting to note that the charges brought against Dr Das related to health and safety breaches and financial offences only. There were no neglect charges in the indictment, although the health and safety breaches included pressure sore management issues and identified 16 victims who suffered as a consequence of pressure sore management failures. There were some terrible cases. Gwent police told me that, even with the full co-operation of the Crown Prosecution Service and expert witnesses over this long period of time, they could not reach the threshold test to bring the serious charges that they felt were merited. These are cases where the death of an elderly person in a care home was attributed to omissions as opposed to deliberate acts—it is quite tricky.

As I said on Second Reading, the Government’s plans regarding fit and proper persons allied with fundamental standards as part of the registration requirement for care homes are good. They will go some way to preventing a situation like the one in Gwent or, say, Winterbourne View, happening again. We all agree that prevention is always the best option, yet the Government’s consultation last year, “Strengthening Corporate Accountability in Health and Social Care” posed a question that remains unanswered: who sets the culture in the organisation? In my view—I have heard this a number of times today—it is set at the top.

An offence of corporate neglect would make it crystal clear that it is not just the foot soldiers—the care assistants or the nurses—who will be held responsible in cases of neglect or abuse. When my Gwent colleague, Lord Touhig, moved this amendment in the other place, Baroness Northover for the Government agreed that providers who allow such neglect should face serious consequences, including—this is my emphasis—“potential” prosecution. Only potential prosecution. The noble Baroness went on to say that the new fundamental standards will ensure that the Care Quality Commission will be able to take action against providers for unacceptable standards of care, including abuse and neglect. The Government consultation—I want to give fair weight to what the Government are doing—says the same in paragraph 34. Indeed, it says that in effect the CQC will have the power to prosecute for criminal neglect. I expect the Minister to give a similar answer today. I emphasise that I am looking at abuse or neglect that is attributable to the practices and procedures of a company. That is the issue that needs addressing today.

New clause 19 would strengthen protection by ensuring that if abuse is found to have an element of corporate responsibility, where the systems or approaches taken by the care provider were a contributory factor in any abuse or neglect, a new offence would be created, allowing prosecution of a registered care provider. That would not undermine the individual responsibilities of staff. As a number of Members here who served on the Joint Committee that considered the Bill will know, that Committee itself recommended an offence of corporate neglect if a director, manager or other officer of a corporate body consented to or played a contributory part in any neglect.

I will now say briefly why I would argue for a sentence for a new offence of corporate neglect of up to five years. Only this month it was reported that three nursing home staff from Hillcroft nursing home in Lancashire were jailed for abuse of vulnerable victims. The longest sentence given to one of those staff was just eight months. We know that in the case of the Winterbourne View care home, the longest sentence, for a staff member who pleaded guilty to nine charges of ill-treating three patients, was just two years. That does not wash with the victims of abuse and their families. Given those sentences, I think a maximum sentence of five years would be fair for an offence of corporate neglect.

Having worked with the families of victims of abuse, I believe a strong penalty for corporate neglect is necessary and justified. I hope the Minister will be able to accommodate the broad backing for an offence of corporate neglect that I and others, including members of the Joint Committee, have endorsed. I do not plan to test the opinion of the Committee today, but I hope the Minister will give due consideration to the new clause and come forward with strong ideas on how corporate neglect in care homes can best be dealt with. I hope that we can consider the topic further on Report.

Norman Lamb (Liberal Democrat, North Norfolk)

I thank my right hon. Friend the Member for Sutton and Cheam and all hon. Members for their contributions to the debate, which has dealt with extraordinarily important issues. I hope that those who have spoken, particularly with regard to the question of the power of entry, would recognise that this issue is about a balance of risks. There are risks on both sides, whether or not there are formal powers. I understand the case that has been put but I hope that those who have spoken in favour of a power of entry will recognise that there are risks on the other side as well. I will seek to explain what I mean by that in due course.

I am grateful to my right hon. Friend the Member for Sutton and Cheam, my hon. Friend the Member for Truro and Falmouth and hon. Members on the Opposition Benches for tabling the amendments. Safeguarding those people most vulnerable to abuse and neglect is fundamental to our claim to be a civilised society. I welcome the shadow Minister’s welcome for the measures in the Bill on adult safeguarding, which are really important advances in providing a statutory framework for this important issue.

New clause 3 would enable the local authority to apply to a court for an order to gain access to an adult’s home to speak with an adult suspected of being at risk of abuse or neglect. Whether there ought to be a power of access or entry is a complex and sensitive issue. That is why the Government launched a three-month consultation in 2012 to gauge the opinions of both professionals and—importantly—members of the public: the individuals who may be in those circumstances. Their voices must be heard as well as those of the professionals who deal with such cases.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The Minister is right. It was good that the Government consulted and sought the views of individuals. Will he explain, however, how those who the amendment would assist—those being coerced and prevented from expressing their fears about being abused, or those who are being abused—could have taken part in such a consultation?

Norman Lamb (Liberal Democrat, North Norfolk)

I understand the limitations on individuals in some circumstances being able to contribute, but that is always the case with Government consultations. There was, however, the opportunity for others to express opinions on behalf of those who may not be able to have a voice.

I do not think that Government consultations can ever be perfect in seeking to elicit the views of everyone who has an interest; none the less, the process is important. The consultation revealed no clear consensus and everyone looking at the outcome of that needs to accept that that was the case. I will come on to deal with some of the responses.

Liz Kendall (Labour, Leicester West)

So that the Committee is clear, will the Minister tell us which organisations were against a power of entry?

Norman Lamb (Liberal Democrat, North Norfolk)

I will come on to deal with some of the contributions that came in from organisations, if the hon. Lady will bear with me for a moment. Of the 212 respondents, 50% backed a new power and 40% were opposed. However, among individuals 77% disapproved of the proposal. One individual said that

“this power would create a serious lack of trust between vulnerable people and the local authority…creating situations where people will not seek help.”

We received no compelling evidence for further legislation. Even those respondents in favour pointed to how rarely a new power might be applied and identified potential unfortunate, and potentially devastating, outcomes of that. Subsection (4)(f) of the proposed new clause states that an access order should be granted only if doing so

“will not result in the person being at greater risk of abuse or neglect.”

It is unclear how such—[Interruption.] That is a good musical accompaniment. We are discovering the musical tastes of the Under-Secretary of State for Health, my hon. Friend the Member for Central Suffolk and North Ipswich.

Jamie Reed (Labour, Copeland)

I wish we hadn’t.

Norman Lamb (Liberal Democrat, North Norfolk)

As the hon. Gentleman says, we wish that we had not. I can just see him boogying on the dance floor, as we all can. I apologise, Mr Rosindell, on behalf of my hon. Friend.

It is unclear how such a judgment could ever be reliably made in such circumstances and that goes to the very heart of the issue. If I may provide two quotes, Age UK Camden, one of the organisations concerned, said that following entry:

“If the person who is suspected of causing harm lives with them, it could be dangerous for them to return…any action taken”—

should preferably be “the least intrusive” and taken in a “sensitive manner.”

I also quote Hampshire county council, which overall was in favour of the power. None the less, it said:

“Gaining entry could provoke the perpetrator to abuse the victim further and as we have learnt from domestic violence, victims will often, as a result of coercion or threat, try to protect the perpetrator.”

It added:

“The current law already allows social workers to gain entry in order to make an inquiry, however this relies heavily on working with the police”.

My plea to my right hon. and hon. Friends is to accept what I said at the start. This is a balance of risk. This is an extraordinarily important issue. It is tempting just to think that we are giving extra protection to people. But if the result of gaining entry was that the perpetrator inflicted revenge on the individual we would have to take that incredibly seriously. Although that concern and risk is acknowledged in the amendment, how on earth would we make the judgment about whether that person would be safe when the social worker and the police officer leave the premises? My plea is simply that my right hon. Friend and other hon. Members should accept that there are risks involved here and that it is a difficult judgment to make.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Of course there are risks and there is a balance of risks, but surely that balance should be a consideration of the merits of an application for an order in a court as set out in the amendment. This is not just casting it out and saying there should be a generalised power of entry without those safeguards. Subsection (f) states,

“exercising the power of access conferred by the order will not result in the person being at greater risk of abuse”.

The Minister indicated that, even with the inherent jurisdiction of the court now, that is something the court would have to satisfy itself on. The amendment codifies that and makes it clear.

Norman Lamb (Liberal Democrat, North Norfolk)

I understand why my right hon. Friend seeks to codify this but I want to reinforce the concern that has been expressed in response to the consultation about a completely unintended consequence of exercising a power of entry rather than exercising skills in negotiating an outcome. The hon. Member for Sheffield, Heeley will be able to speak with great experience about this. Those skills of the social worker were another feature of the responses to the consultation. That is what the professionalism of the social worker is ultimately all about.

Meg Munn (Labour, Sheffield, Heeley)

The Minister is right that there are risks. But those risks need to be assessed by the social work team and then, as the right hon. Gentleman said, by the court. If there is no power of entry, one of the tools in the social worker’s bag has been taken away. My point is that going into a situation, a discussion is had with the person who then says, “There is nothing you can do about it” and slams the door. End of discussion. To get in at the moment it has to be a much higher threshold and it has to be the police. Whereas if there is a power of entry—I apologise for making this intervention, Mr Rosindell, but it is an important issue—the discussion goes more along the lines of, “Well, if I have concerns of a higher level I could go to a court. I don’t want to do that. Perhaps we could discuss this further.” It creates a way in. I understand the Minister’s concerns, which is why everyone here would accept the need to think about it. But I ask him to look at this. I guarantee that if we do not do it now a future Committee will do so.

Norman Lamb (Liberal Democrat, North Norfolk)

I take the comments of the hon. Lady and others, including my right hon. Friend, very seriously. I have been thinking about this a lot. I have not reached a precipitate judgment on this. I always instinctively remain open to discussion. I reached my judgment as a result of looking at the responses to the consultation and all of the discussions I have had, including talking about this with senior representatives from the Association of Directors of Adult Social Services, an organisation that represents the very social workers the hon. Lady was talking about.

Liz Kendall (Labour, Leicester West)

It actually represents the directors of social services. I want to return to the comparison that the Minister made with domestic violence, because this goes to the heart of his concerns. He said that if a complaint was made, an abuser might become more abusive to a woman and cause her more problems, but such an attitude would be a recipe for never doing anything. Such issues must be dealt with, ideally through negotiation. We cannot simply say that there should not be a power of entry to get to grips with a situation in case the victim is abused further. That risk must be handled, but it is not a substantive argument against the point.

Norman Lamb (Liberal Democrat, North Norfolk)

That is absolutely not a recipe for doing nothing. It cannot be said that because there is no formal power to require entry, nothing can be done. That is what social workers do the whole time. Their professionalism, skills and training lead them to negotiate solutions, and that, to me, is the essence of social work. The proposal would alter the power relationship, and although hon. Members who have contributed think that it would inevitably alter the power relationship in a good way, I will use some quotes from Mind to demonstrate that it might do precisely the opposite. Hon. Members and my right hon. Friend must take the concerns of such organisations incredibly seriously.

Sarah Wollaston (Conservative, Totnes)

I wish to reiterate the point that has just been made about the comparison that the Minister used with domestic violence. Of course there is strong evidence that a victim will sometimes try to protect a perpetrator, but if we took the view that there should be no right to investigate because of the chance of escalating that risk, we would see many more fatalities as a result of domestic violence than we already do. The point is to protect people and to have an ultimate back-stop in extreme circumstances, not to give social workers an automatic right to use the power as some kind of bargaining chip. In the case of the tiny minority of people who are absolutely hellbent on not having any contact at all, we are talking about having a final back-stop with the protection of the courts.

Norman Lamb (Liberal Democrat, North Norfolk)

I take my hon. Friend’s point extremely seriously. To be absolutely clear, the reference to domestic violence was in the quote from Hampshire county council’s response to the consultation on the proposal. I am absolutely not saying that one should not investigate in such circumstances. Such allegations must be taken with the utmost seriousness, but it is a question of what powers are available. As I will go on to explain, I believe back-stop powers already exist in such extreme cases. As hon. Members have emphasised, we are talking about the most extreme circumstances.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

The Minister has mentioned that ADASS does not support the power of entry. Does he acknowledge, however, that the College of Social Work, which represents social workers rather than directors of adult social care, supports the proposal?

Norman Lamb (Liberal Democrat, North Norfolk)

Absolutely. I would like to clarify that the Association of Directors of Adult Social Services represents the directors responsible for the services within which social workers are employed; I take the clarification that the shadow Minister offered to me. I accept that the College of Social Work favours the proposal. The point I am trying to make is that even among the professionals there is no unanimity of view. I should also clarify that I was not saying that ADASS has formally opposed the proposal. I was referring to informal discussions that I have had with representatives from ADASS, which have led me to believe that among those very experienced people there is, again, a range of views about this incredibly important and sensitive issue.

Let me quote from Mind. In my discussions on the matter, including with members of the Joint Committee, the assertion was made when I mentioned Mind: “But we are not talking about the people that Mind represents.” However, we are absolutely talking about them. We are talking about a whole range of people, including importantly, those represented by Mind, which is an organisation that I suspect all of us in this room have a very high regard for.

Let me quote what Mind said:

“A power of entry risks being seen as a quick solution, in place of greater focus on community engagement, co-operation and a preventative approach that can be truly empowering to the people involved”.

That theme was found in many other responses. Mind’s submission in response to the consultation stated:

“Mind believes that the proposed new power of entry is a disproportionate, sweeping provision that would disempower those it seeks to protect and fail to adequately take into consideration their rights, preferences or perspectives.”

I quote again:

“We are pleased that the consultation document states ‘it is not our intention to introduce further powers of entry unless a compelling case could be made’ and we firmly believe that there is no compelling case for introducing this power.”

It also stated:

“Mind would also strongly disagree with the argument that failing to introduce a new power of entry, and therefore relying on the inherent jurisdiction of the High Court in the few cases”—

which has been widely accepted in this Room—

“where existing legislation may not apply, is disempowering for the people involved. To the contrary, we believe that the fear that a social worker could forcibly enter a person’s home against their will is extremely disempowering, not to mention the experience of actually having someone enter their home against their will.”

I quote again:

“Mind believes that any perceived gap in provisions would not require the creation of this new power. However, as well as being unnecessary, we believe that the proposed new power is disproportionate, inconsistent with a human rights-based approach to safeguarding and practically extremely difficult to implement effectively.”

I know that I will not persuade hon. Members and my right hon. Friend the Member for Sutton and Cheam to change their view this morning. I urge them, however, to take those submissions by Mind and the other organisations that I have quoted extremely seriously. Sometimes there are unintended consequences with legislation that we pass with the best will in the world. If the consequence is that we put the person at increased risk of retribution, I suspect that we would all be very sorry with that outcome.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Of course, the risk that the Minister described is important. I respect and value, as I am sure all members of the Committee do, the work that Mind does. However, Mind was responding not to the new clause that we are debating today, but to the consultation and the questions in it. Mind did not have the benefit of seeing the precise language. In the past couple of weeks, my office has been spending quite a bit of time digging down to understand the nature of its concern. Much of it appears to be born out of its concern about inappropriate uses of section 135 of the Mental Health Act 2007, which talks about gaining access with the purpose of providing treatment, whereas this proposal is not about gaining access to deliver treatment against someone’s will, but about gaining access against the will of a third party that is stopping someone from getting access to determine whether there is a risk of harm taking place.

Norman Lamb (Liberal Democrat, North Norfolk)

I understand the points made by my right hon. Friend. None the less, the quotes that I have given—which, yes, are in response to the consultation—are absolutely relevant and cannot be distinguished from the amendment we are discussing. No legislative vacuum exists to prevent care and other professionals from accessing those in urgent need of assistance. This is where the existing legislation already provides for those crisis cases to which hon. Members have referred. Everyone has been clear about stressing that it is in the most extreme cases that the power might be used. Indeed, the hon. Member for Sheffield, Heeley talked about the deterrent effect, as it were. I urge caution on any social worker, although I am sure they already accept that it is quite dangerous to go around in a manner that might be perceived as offering a threat, because it changes the power relationship in a way to which Mind alluded. Nevertheless, in those circumstances of real concern to which the hon. Lady and others referred, the powers are already in place.

Under the Police and Criminal Evidence Act 1984, the police have the power to enter premises for the purposes of

“saving life or limb or preventing serious damage to property”,

which would cover the circumstances of when it is suspected that an adult is at risk of abuse or neglect. A wealth of powers for use on the front line already exists. One safeguarding board stated that the new power

“would possibly be a duplication of current powers which do not appear to be used to their full potential.”

Furthermore, the inherent jurisdiction of the courts to intervene provides a final safety net, so a safeguarding access order is not necessary, given the extreme concerns that I have described from organisations that we all respect.

Meg Munn (Labour, Sheffield, Heeley)

The Minister is misunderstanding the nature of the cases in which the power might be used. Hon. Members have said that this is not a lot of cases, but that does not necessarily mean that the cases are extreme in themselves. This is not about cases where someone is likely to be killed, although such situations happen; it is where the treatment of the person gives rise to concerns and might have been going on for a long time—it is a chronic situation, as opposed to one of the few extreme situations.

The College of Social Work has provided case examples, where the power would have been useful, and—

Andrew Rosindell (Conservative, Romford)

Order. I remind hon. Members that interventions should be brief and should not be speeches.

Meg Munn (Labour, Sheffield, Heeley)

I understand that, Mr Rosindell, but the Minister misrepresented my previous speech. I wish to challenge him on a point or two on the record. I was not speaking of the power of entry as a deterrent; it is a support to the social worker in discussing issues and it helps the situation. In no way is the power a deterrent. That is what I wished to say.

Andrew Rosindell (Conservative, Romford)

Order. I remind colleagues that it is possible to give another speech, if that is preferable to making an intervention.

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful to you, Mr Rosindell, for encouraging discipline in the Committee. I apologise to the hon. Member for Sheffield, Heeley if I misrepresented her—that is a strong charge she makes against me, but I apologise if there was any risk of misrepresentation.

I should respond to the point made by my right hon. Friend the Member for Sutton and Cheam on distinguishing between what the organisations responded to in the consultation and what is being proposed now. A power of access that we consulted on had a higher level of challenge—use of judges sitting in the Court of Protection—than the amendment, so that also needs to be weighed in the balance.

The Police and Criminal Evidence Act 1984, the Domestic Violence, Crime and Victims Act 2004, the Fraud Act 2006 and, for those lacking capacity to make decisions, the Mental Capacity Act 2005 provide a wealth of powers for use on the front line. I want to develop the point, because I suspect that there is widespread ignorance of what those powers amount to. That is no one’s fault; it is just the case.

My right hon. Friend has been, as I would always expect of him, diligently exploring the various powers. The court can also hear any matters that come before it, unless excluded by a rule or statute. That enables the common law to develop and adapt as is required on a case-by-case basis to provide the remedy needed. We think that this inherent jurisdiction can meet the need of protecting vulnerable adults more readily than legislation may. There is a risk that by legislating, Parliament would oust the court’s inherent jurisdiction in this area and so limit the scope and means by which the courts can safeguard adults in need of care and support.

As for the ability to gain access to assess the mental capacity of a person suspected of being an adult at risk of abuse, that route is already available via the Court of Protection. The court is accessible, and can make orders, 24 hours a day.

Further legislation for a new power of access would risk sending the message that legal intervention takes primacy over negotiations and consensus, which, as I said, are at the heart of the skills of a good social worker. Age UK Redbridge said that

“the answer is more partnership, closer co-operation and more diligence and more information out to the public & to community groups, rather than this heavy handed kind of measure.”

I will also ask this question: what do people do when they have gained entry? No one is arguing for, as exists in Scotland, a power to remove, which is quite draconian. That is not, I suspect, a power advocated by anyone directly here, but it seems to me that there is quite a danger that people would be left high and dry, having exercised this quite significant power to enter someone’s premises and then having no power to do anything further.

Grahame M. Morris (Easington) (Lab) rose—

Paul Burstow rose—

Norman Lamb (Liberal Democrat, North Norfolk)

I will give way to my right hon. Friend first.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am just a little concerned about this line of argument and want the Minister to reflect on what he is saying. He seems to be saying to the Committee that the duty to inquire can lead nowhere because there is no means to act, so will he just set out what will happen, without this power to gain access, in the event that a duty to inquire results in a discovery that something is happening? What happens then?

Norman Lamb (Liberal Democrat, North Norfolk)

I come back to, in a sense, what happens all the time—every week of the year, I suspect—across local authorities in England. Social workers use their powers—of course, we are now reinforcing that with the statutory adult safeguarding boards—to protect vulnerable citizens. It does seem to me—I apologise for repeating this—that the essence of the skills and training of a social worker is the ability to deal with these types of circumstances.

My officials at the Department of Health have already had discussions with representatives of the Local Government Association and the Association of Directors of Adult Social Services about ways of improving the understanding of front-line practitioners about what legal powers are available to them in cases of abuse and neglect. This goes directly to what my right hon. Friend says.

Grahame M. Morris rose—

Norman Lamb (Liberal Democrat, North Norfolk)

I have not forgotten the hon. Gentleman; he can relax.

I hope that this might go some way towards reassuring hon. Members, including my right hon. Friend. We propose that case studies and possible scenarios illustrating the powers will be included in practical guidance that can be developed jointly by the Department of Health, the Local Government Association and ADASS so that, possibly for the first time, there is a clear guide to all the legislative provisions available and what they actually amount to. When I have sought to understand precisely what the various pieces of legislation provide for, I have found a degree of opaqueness. I suspect that many social workers out there in the field are not aware of what powers are available to them. Before I conclude this part of the discussion, I give way to the hon. Member for Easington.

Grahame Morris (Labour, Easington)

I am sure that hon. Members on both sides of the Committee are trying to be helpful, but to return to the fundamental point to which the Minister referred earlier, he argues that we must balance the risks and that the vulnerable individual—a frail or elderly person, or someone with learning disabilities—might be at greater risk from the power of entry. Surely he would not make that argument in relation to safeguarding children.

Norman Lamb (Liberal Democrat, North Norfolk)

I take the point, but we in this Committee are debating whether we should introduce a power relating to adults. The point that I have been trying to make is that in response to the consultation, organisations and individuals highlighted concerns about the implications of introducing the new power. I ask hon. Members and my right hon. Friend the Member for Sutton and Cheam to recognise that introducing a new power of entry on top of the inherent jurisdiction in the existing legislative provisions has human rights implications.

It is a significant matter to gain entry to someone’s home. What came across time and again, in the examples given by organisations of circumstances in which councils and individual social workers have had to deal with practical situations, is that they managed to work their way through the problem and come to a solution. There are plenty of examples of how that has happened in practice here and now, under the existing rules.

Grahame Morris (Labour, Easington)

I understand that we will deal with some of the issues about how the Human Rights Act will apply in such circumstances when we debate clause 48, but will the Minister address the issues relating specifically to this clause in his remarks?

Norman Lamb (Liberal Democrat, North Norfolk)

I am not sure I entirely understand that intervention. Perhaps the hon. Gentleman wants to come back to convince me further.

Grahame Morris (Labour, Easington)

My concern is that we are overcomplicating the issue by introducing the human rights argument, which I hope we will deal with later this morning or this afternoon. On the balance of risks, I am still not convinced by the Minister’s arguments why we should not support some changes. These are probing amendments. They are an opportunity for him to take them away and reflect on them.

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful to the hon. Gentleman for clarifying that further. I said earlier that I recognised that I would not necessarily be able to convince hon. Members who feel strongly about the issue—

Grahame Morris (Labour, Easington)

Some of them are on your side.

Norman Lamb (Liberal Democrat, North Norfolk)

I accept that. I have just been urging hon. Members to understand that there are two sides to the issue and that it is extraordinarily difficult.

Let me explain why the human rights issue is important and, in my view, more relevant here than in the other clause, with which we will deal in due course. The human rights convention, and the Act that followed it in this country, is there to protect the citizen against the overbearing power of the state. That is the whole purpose of it. That is why it was introduced and why it is so important. The state exercising powers to enter someone’s home absolutely must be taken seriously. We cannot brush it aside as a technical problem that gets in the way of an ideal, practical solution. That is why organisations such as Mind refer specifically to the human rights of the individual. I would urge Members to take that a bit more seriously than the hon. Gentleman suggests.

The contrast with the later clause is that that relates to whether the Human Rights Act should be applied to entirely private relationships between an individual and a private care home. That is a very different set of circumstances to what we are debating, which is the introduction of a power for the state to gain entry into one’s home.

Bill Esterson (Labour, Sefton Central)

Since the Minister has raised the issue of human rights and balance, does he accept that, as well as the right to be protected from the state, an individual has an equal right to be protected by the state? Vulnerable individuals should therefore have the right to expect intervention at the right moment. The issue is getting the balance right. Allied to that, good practice gives guidance on how interventions should be made and whether someone should enter a person’s home. Surely that is the way to deal with the concern he is raising.

Norman Lamb (Liberal Democrat, North Norfolk)

I thank the hon. Gentleman for his intervention, but in some of the arguments that are being made by those who favour the proposed power, the suggestion is that in some way I favour doing nothing—neglect. I hope that Members will understand that I am arguing for using the power, training and skills of the social worker as they are already used. The responses to the consultation, even from those in favour of the proposed power, made it clear that that is the best way to achieve the objective in virtually all circumstances. I would like to repeat the point made by Mind, which said that

“the proposed new power is disproportionate, inconsistent with a human rights-based approach to safeguarding and practically extremely difficult to implement effectively.”

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I appreciate that people’s views on both sides of the issue are clearly held and respected, but I want to challenge the Minister’s point on the basis of the evidence from the Equality and Human Rights Commission, which said that article 3 of the convention

“is an absolute right, which cannot be restricted under any circumstances. If a public authority (including a local authority or a court) knows, or ought to know, that a vulnerable person is suffering ill-treatment, it may be under a positive obligation to take urgent steps to stop the abuse.”

That is the purpose of the amendment. Different organisations, both respected, have different views on the issue. The EHRC is the body that the Government set up to advise them on equalities and human rights—surely we should take its opinion fairly seriously.

Norman Lamb (Liberal Democrat, North Norfolk)

I agree with what the EHRC said in that quote. Those would absolutely be grounds for taking action. We are debating the action that should be taken and the powers available. I also agree with my right hon. Friend that organisations with a lot of credibility behind them disagree on the issue—that is the point I have been making. I guess that the best I can achieve today is for my right hon. Friend and other Members to accept that the issue is extremely complex and that, as well as the arguments that have been put for introducing the power, there are strong reasons not to.

Meg Munn rose—

Norman Lamb (Liberal Democrat, North Norfolk)

I am acutely aware that I need to make progress, but before doing so I will give way for the final time because of the special contribution that the hon. Member for Sheffield, Heeley makes to the conversation.

Meg Munn (Labour, Sheffield, Heeley)

The Minister is too kind. I put it to him that the College of Social Work recognises that it has been proposed that social workers using this power could be approved in the same way as mental health practitioners are, in order to ensure that the power is properly understood and only used in the circumstances that warrant it.

Norman Lamb (Liberal Democrat, North Norfolk)

I understand that and it is something of a reassurance. None the less, I do not think that it conflicts with the main argument that I have put. Incidentally, I should say that the hon. Member for Oldham East and Saddleworth spoke movingly of her mother’s situation. The circumstances that she described are, of course, those that all of us would want to ensure that we avoid. I just do not think that, ultimately, it makes the argument in favour of the power, as against the approach of skilled, qualified and well-trained social workers doing their job to the best of their ability.

Amendment 42 would require local authorities to record whether or not an application for an access order has been considered in any cases where it believes that its duty to make inquiries is being impeded. The adult safeguarding provisions, including the duty in clause 42 to make inquiries, make it clear that adult safeguarding is a key responsibility for local authorities to co-ordinate. In order to meet their statutory duties, local authorities must make, or cause others to make, whatever inquiries they think necessary to determine what action needs to be taken in cases where abuse and neglect of adults with care and support needs is suspected. We would expect local authorities to ensure that all their staff whose work relates to adults with care and support needs, recognise signs of possible abuse and neglect, take the most effective and appropriate action and properly record the decisions and reasons underpinning those actions.

I understand the concerns behind new clause 4 and amendment 117. It is, of course, imperative that anyone, particularly local authorities and their relevant partners such as those in the NHS, who suspects that someone is at risk of abuse or neglect knows what action to take and reports this information. The Government believe that our best chance of ensuring that relevant partners take action will be through the adult safeguarding boards, which themselves comprise the local authority, relevant representatives of the NHS, police and anyone else the board considers appropriate. The duties in schedule 2 provide a clear foundation for boards to produce and refine their own protocols for dealing with suspected abuse or neglect.

Further, I strongly believe that we need to encourage all—everyone—to speak up when they suspect someone is being abused or neglected, but I do not believe that the way to achieve this is to prescribe a process that only those who are defined as relevant partners in the Bill must follow. Yet again, there could be an unintended consequence of in some way sanctioning others not on the prescribed list for doing nothing.

Liz Kendall (Labour, Leicester West)

This is a genuine question, because I do not know the answer. In legislation relating to children’s services does it specify that, where people work across a number of different organisations with children who are suspected of being abused and neglected, there are duties on those organisations for the professionals to report that suspicion?

Norman Lamb (Liberal Democrat, North Norfolk)

I will have to write to the hon. Lady. If she cannot get an answer from the hon. Member for Sheffield, Heeley, behind her, I am happy to write, to give her a formal view.

Liz Kendall (Labour, Leicester West)

My hon. Friend the Member for Sheffield, Heeley, who is sitting behind me, says that there are requirements in legislation and duties on professionals working in other organisations to report suspected abuse. So I do not understand why the Government would not seek to make that clear in this legislation for abuse of vulnerable adults as well. What is the Minister’s answer to that?

Norman Lamb (Liberal Democrat, North Norfolk)

I think I have given the answer that I am concerned about the risk of prescribing certain organisations to do what they—and, indeed, everybody—should be doing anyway. If a list of organisations is prescribed, what does that say about the people who are not on the list? We all agree that we should send out the message that we all have the responsibility to report concerns about the neglect or abuse of vulnerable people.

Existing regulations and guidance make it clear that partners and staff are required to report abuse. We will be issuing new guidance on safeguarding under the powers in the Bill. On amendment 116, we made the decision not to provide a statutory definition of abuse and neglect on the face of the Bill, but to rely on the ordinary meaning of those words. We do not want to restrict the scope of local authorities’ inquiry duty to a prescribed list. It is inevitable that creating a list risks excluding something into which a local authority or its partners may wish to inquire. The Joint Committee, which carried out pre-legislative scrutiny on the draft Bill, considered that issue, and its report concluded that concerns about the approach are not justified. It said:

“We do not agree with this criticism.”

Abuse is an ordinary English word, capable of being understood without being defined. We have the opportunity to issue guidance on the meaning of abuse if necessary.

Amendment 118 seeks to enable a person with power of attorney to ask the local authority to instigate an inquiry in relation to financial abuse. However, they must already do so. Local authorities are under a duty to make whatever inquires they think necessary when they have reasonable cause to suspect abuse or neglect, including financial abuse, regardless of how they come to suspect that there is a risk of abuse or neglect. That would include circumstances where the local authority receives information about suspected financial abuse from an adult’s power of attorney. I do not believe that we should define or set out a list of situations in which a local authority may be asked to undertake or instigate an inquiry. Such a list could never be exhaustive, and might suggest that only the situations listed should necessitate an inquiry. Situations that require a safeguarding response are best reserved for guidance, and we are working with stakeholders on developing guidance on the new adult safeguarding duties and powers.

The Government support the sentiment behind new clause 19. We will shortly be consulting on new fundamental standards that will replace the current registration requirements. Those standards will set the basic level of care. Failure to meet those standards will lead to intervention by the regulator, including the possibility of prosecution without the need for an advance warning notice.

I know that the aim of my right hon. Friend the Member for Sutton and Cheam is to gain some clarification as to our intent. He referred to Winterbourne View. When I came into the job, replacing my right hon. Friend, who had done excellent work on all that, and when I was confronted by the facts of what had happened at Winterbourne View, my direct question to officials was, “What about the company? How on earth can the company get away with having allowed that situation to develop under its watch?” The answer I got was, “We cannot do anything. As we have to serve a notice against the company before prosecuting, if the company complies with the notice, there is nothing we can do, however appalling the abuse or neglect that has been facilitated by how the company has behaved.”

The change that we are making is a direct result of the Winterbourne View experience and my view that we had to introduce a clear power to prosecute in such cases. The new standards will provide the vehicle by which the Care Quality Commission is able to take action against unacceptable standards of care in all its forms, including abuse and neglect.

Liz Kendall (Labour, Leicester West)

I am not clear on this issue: can regulations introduce a power to imprison or fine someone, as the proposed new clause tabled by my hon. Friend the Member for Blaenau Gwent does? How can a health and social care regulation introduce an ability to send someone to jail or fine them, as the proposed new clause does? I am not clear whether that is possible.

Norman Lamb (Liberal Democrat, North Norfolk)

The hon. Lady’s party, in government, legislated to provide the power of prosecution to the Care Quality Commission. To be blunt, it was a flawed power because a notice had to be served first, which has meant that there have been no prosecutions—there might have been one. Despite all the horrors and scandals over the past few years, there have been no prosecutions, because it is impossible for the Care Quality Commission to prosecute because it has to serve a notice first. It is intensely frustrating and the situation must be changed. The power to prosecute is provided in the legislation, but there is a problem with having to serve a notice first.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The other point, which has been put to me and which I put to the Minister and would like him to address, is that the essential standards, as currently drafted, would be hard to use as a basis for a successful prosecution, even if the obstacle of giving a notice did not exist. Drafting the fundamental standards will be key to ensuring they can be used in a court ultimately to get a prosecution. Is that in hand?

Norman Lamb (Liberal Democrat, North Norfolk)

My right hon. Friend asked that question in his speech. I am advised that the absolutely clear intent is to create clear fundamental standards. Let us recognise that there will be circumstances in which everyone would agree, on the basis of clear guidance, that it would not be appropriate to prosecute, but as in the case of Winterbourne View, my hon. Friend the Member for Morecambe and—

David Morris (Conservative, Morecambe and Lunesdale)

Lunesdale.

Norman Lamb (Liberal Democrat, North Norfolk)

I am sorry. It is a part of the country I clearly know well. My hon. Friend the Member for Morecambe and Lunesdale has a case in his constituency of the most appalling abuse in a care home. He is confronted by a situation where the care home operator cannot be prosecuted due to the existing framework. We are changing it to allow prosecutions and ensure real corporate accountability in such circumstances. It is a really good thing that this Government are doing.

David Morris (Conservative, Morecambe and Lunesdale)

I thank the Minister for acknowledging the case that has occurred in my constituency. From my experience, I think he is totally right: there should be a framework in place to prosecute errant owners.

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful for that supportive intervention.

The shadow Minister also raised the question of penalties, and I should make it clear that when we talk about corporate neglect and a corporate offence, we are talking primarily about offences committed by the corporate body. Tempted though we might be in some circumstances to imprison an entire company, the concept of imprisoning a company is not one that the law understands. In corporate offences, the penalty is a fine. At the moment, there is a limit to that fine, but other legislative changes, which have not yet been implemented but have been legislated for, will lead to unlimited fines against the corporate body and the potential to prosecute individual directors if there is clear culpability on the part of the directors.

In addition, the Government have accepted the recommendation—

Nick Smith (Labour, Blaenau Gwent)

I agree with the Minister that, until now, the Care Quality Commission has a failed track record on intervening in such cases. New regulations and powers may help in future, but the verb is “may”, given its very poor record until now. Does he accept that an offence of corporate neglect against the managing directors of a company could act as a good deterrent against poor care, and would be simple for directors to understand?

Norman Lamb (Liberal Democrat, North Norfolk)

I agree with pretty much everything the hon. Gentleman said. First, the bottom line is that the Care Quality Commission has not been able to act because of the requirement to serve a notice. When I raised the matter with it, it said there is a lacuna in the law. It was rather prosaic in the way it put that, but that is what it said. The matter needs to be addressed, and that is what we are doing.

My view overall is that ultimately we do not get a great culture just by tough regulation, prosecutions and so on. Culture develops because of great organisations doing brilliant things and empowering people working within that organisation to give of their very best, but alongside that there must be effective corporate accountability. If people working in any sector are prepared to play fast and loose, there must be effective sanctions to stop such behaviour. The power to prosecute when there are serious breaches of the new fundamental standards will create the deterrent effect that the hon. Gentleman talked about, and will be very welcome.

Liz Kendall (Labour, Leicester West)

We understand the complexities of the issue. We are clear that what will be proposed may include unlimited fines but not prison, and we want to go away and consider that. If this is set out in fundamental standards that the CQC is supposed to uphold, would we rely on it to take the company or the directors to court, or would the police or individuals be able to do that? The CQC has a massive job on its hands inspecting hospitals, care homes and GPs, and we will come to the provider regime. Will it seriously pursue a company in the courts? We must be clear about the fundamental care standards that are set out, and whether individuals, the police or families can take a case to court if they want to, or only the CQC.

Norman Lamb (Liberal Democrat, North Norfolk)

The Care Quality Commission would prosecute, which is what the hon. Lady’s Government legislated for. They created a bar in the way of doing anything, which was unfortunate, but I acknowledge that the Opposition recognise that flaw.

The hon. Member for Blaenau Gwent made the point that it is one thing to have the power, but the organisation needs to get the culture right as well, and there is a challenge for the Care Quality Commission. In a former life, I prosecuted on behalf of local authorities in health and safety cases and other similar public offences. I was always clearly of the view that it was necessary to demonstrate a willingness to use the available powers because that sends a message across the system to everyone else to take those responsibilities seriously.

It is incredibly important for the Care Quality Commission in serious cases of neglect or allowing abuse or neglect to take place that the powers are used. There is a challenge for the culture of the organisation, which it recognises absolutely. I have a lot of faith in the leadership now of the organisation. David Behan and David Prior as chief executive and chair understand about challenging unacceptable behaviours and being tough. The organisation as a whole needs to be prepared to act to demonstrate that same toughness.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

My point relates to one the Minister made a moment ago. He can correct me if I have got it wrong, but he suggested that the culture is set by the leadership of organisations, as distinct from the role of legislation. I agree that leadership in all organisations is paramount. However, the Government have a role in setting the culture for society through legislation and other behaviours and actions. That is why the Opposition are pushing the matter. It is about setting the tone for the culture in our society that abuse of this sort is unacceptable and, in a corporate setting, it needs to be opposed as strongly as possible.

Norman Lamb (Liberal Democrat, North Norfolk)

I agree, but the bottom line is that the previous Government tied the Care Quality Commission’s hands behind its back. They provided potential for prosecution but then made it impossible for the Care Quality Commission to prosecute. This Government are giving it the power to do it, to hold organisations to account, to ensure that there is proper corporate accountability. I am sure, for the reasons the hon. Lady expressed in her intervention, that she will strongly support what we are doing. One can always hope.

I am conscious that I need to make progress. I have tried to be generous in accepting interventions.

Nick Smith (Labour, Blaenau Gwent)

Can I press the Minister further on something I think he might have missed?

Andrew Rosindell (Conservative, Romford)

Order. Is the Minister giving way?

Norman Lamb (Liberal Democrat, North Norfolk)

I will give way quickly, but the hon. Gentleman had better be short.

Nick Smith (Labour, Blaenau Gwent)

I thank the Minister for being very generous. I want to press him. With the new arrangements, will directors of care homes be liable to personal prosecution and face jail if found guilty?

Norman Lamb (Liberal Democrat, North Norfolk)

Directors could be subject to personal prosecution and to unlimited fines, not to jail, under these provisions. There may be other offences they commit that could lead to a jail sentence. As I explained, we have passed other legislation necessary to introduce an unlimited fine. That is not in place yet but the powers and intention are there to introduce it.

The Government have accepted the recommendation in Professor Don Berwick’s report on patient safety, “A promise to learn—a commitment to act”, that there should be a new offence of wilful neglect or ill treatment of patients. Professor Berwick is clear that the offence should apply to both individuals and organisations, whether or not they are registered with the Care Quality Commission. We are currently working through how best to implement the recommendation, and will consult as soon as possible on proposals that cover the formulation and scope of the offence, as well as potential penalties.

Turning to new clause 22, the Government support the right of staff working in the NHS and social care to raise concerns. We expect all NHS and social care organisations to support staff who wish to do so. We expect those organisations to have in place whistleblowing policies that are compliant with the provision introduced by the Public Interest Disclosure Act 1998.

All regulated health and social care professionals have a duty to raise concerns. The Department of Health also funds a helpline providing free, independent and confidential advice to health and social care staff wanting to raise concerns but unsure about how to do so. The chief inspector of hospitals and the chief inspector for adult social care will ensure that inspections are not seen just as a tick-box exercise.

They will ensure, not only that the organisation is complying with the law and putting policies in place, but that the culture of the organisation actively promotes the benefits of openness and transparency and encourages the raising of concerns by staff as a positive step to improving public and patient safety through the quality of services provided. The statutory duty of candour that the Government have committed to introducing, which was in the Liberal Democrat manifesto, will apply across health and social care to any organisation registered with the Care Quality Commission, including local authorities where they are registered because they undertake relevant activities.

I turn now to new clauses 23 and 24, which were tabled by my right hon. Friend. I want to reassure him that I understand his motivation and, indeed, share his concerns. I have already said that we have accepted Professor Don Berwick’s recommendation to create a new offence of wilful neglect or ill-treatment, and we are working to develop proposals as soon as we can. Like Professor Berwick, we envisage that the offence will apply to both individuals and organisations, so it will pick up both the situations proposed in my right hon. Friend’s new clauses.

However, the issue is not straightforward. For example, Professor Berwick’s remit extended only to NHS services. We are considering carefully whether it is sensible to limit the offence in that way or whether it should apply more widely across both the health and care sectors. We have committed to consulting on our proposals for the new offence, which is the right way to proceed. It is proper to consult first and we plan to do so shortly. The scope and extent of the offence will form part of that consultation. I am sure that my right hon. Friend will agree that a period of consultation and reflection is essential to ensure that the final offence operates effectively and fulfils both the spirit and the letter of Professor Berwick’s recommendation.

Finally, no amount of legislation will ever completely prevent abuse or neglect. Rather, it is through developing effective partnerships and ensuring the active engagement of the community that we can best protect individuals. I hope that my arguments have reassured my right hon. Friend and Opposition Members and I encourage them not to press their amendments.

Hugh Bayley (Labour, York Central)

I remind the Committee that with this we are discussing the following:

Amendment 116, in clause 42, page 38, line 14, leave out subsection (3) and insert—

‘(3) “Abuse” includes—

(a) physical abuse;

(b) sexual abuse;

(c) psychological abuse;

(d) financial abuse, which includes—

(i) having money or other property stolen;

(ii) being defrauded;

(iii) being put under pressure in relation to money or other property; and

(iv) having money or other property misused;

(e) neglect and acts of omission;

(f) discriminatory abuse; and

(g) other, as guidance may specify.’.

Amendment 117, in clause 42, page 38, line 19, at end add—

‘(4) A relevant partner (as identified in section 6(7)) has a duty, where it has reasonable cause to suspect a person is an adult at risk of abuse or neglect, and the adult appears to be within the local authority’s area, to inform the local authority of that fact.’.

Amendment 118, in clause 42, page 38, line 19, at end insert—

‘(4) In the case of financial abuse, investigation may be instigated following a complaint from a person with power of attorney for an adult having needs for care and support.’.

New clause 3—Adult safeguarding access order—

‘(1) An authorised officer may apply to a justice of the peace for an order (an adult safeguarding access order) in relation to a person living in any premises within a local authority’s area.

(2) The purposes of an adult safeguarding access order are—

(a) to enable the authorised officer and any other person accompanying the officer to speak in private with a person suspected of being an adult at risk of abuse or neglect;

(b) to enable the authorised officer to assess the mental capacity of a person suspected of being an adult at risk of abuse;

(c) to enable the authorised officer to ascertain whether that person is making decisions freely; and

(d) to enable the authorised officer properly to assess whether the person is an adult at risk of abuse or neglect and to make a decision as required by section 41(2) on what, if any, action should be taken.

(3) While an adult safeguarding access order is in force, the authorised officer, a constable and any other specified person accompanying the officer in accordance with the order, may enter the premises specified in the order for the purposes set out in subsection (2).

(4) The justice of the peace may make an adult safeguarding access order if satisfied that—

(a) all reasonable and practicable steps have been taken to obtain access to a person suspected of being an adult at risk of abuse or neglect before seeking an order under this section;

(b) the authorised officer has had regard for the general duty in section 1 (Promoting individual well-being) in making a decision under subsection (1).

(c) the authorised officer has reasonable cause to suspect that a person is an adult who is experiencing or at risk of abuse or neglect;

(d) it is necessary for the authorised officer to gain access to the person in order to make the enquiries needed to inform the decision required by section 41(2) on what, if any, action should be taken;

(e) making an order is necessary in order to fulfil the purposes set out in subsection (2); and

(f) exercising the power of access conferred by the order will not result in the person being at greater risk of abuse or neglect.

(5) An adult safeguarding access order must—

(a) specify the premises to which it relates;

(b) provide that the authorised officer may be accompanied by a constable; and

(c) specify the period for which the order is to be in force.

(6) Other conditions may be attached to an adult safeguarding access order, for example—

(a) specifying restrictions on the time that the power of access conferred by the order may be exercised;

(b) providing for the authorised officer to be accompanied by another specified person; or

(c) requiring notice of the order to be given to the occupier of the premises and to the person suspected of being an adult at risk of abuse.

(7) A constable accompanying the authorised officer may use reasonable force if necessary in order to fulfil the purposes of an adult safeguarding access order set out in subsection (2).

(8) On entering the premises in accordance with an adult safeguarding access order the authorised officer must—

(a) state the object of the visit;

(b) produce evidence of the authorisation to enter the premises; and

(c) provide an explanation to the occupier of the premises of how to complain about how the power of access has been exercised.

(9) In this section “an authorised officer” means a person authorised by a local authority for the purposes of this section, but regulations may set restrictions on the persons or categories of persons who may be authorised.’.

New clause 4—Duty to report adults at risk of abuse—

‘(1) If a relevant partner of a local authority has reasonable cause to suspect that the local authority would be under a duty to make enquiries under section 42, it must inform the local authority of that fact.

(2) If the person that the relevant partner has reasonable cause to suspect would be the subject of enquiries under section 42 and appears to be within the area of a local authority other than the one of which it is a relevant partner, it must inform that other local authority.

(3) If a local authority has reasonable cause to suspect that a person within its area at any time would be the subject of enquiries under section 42 and is living or proposing to live in the area of another local authority (including a local authority in Wales, Scotland or Northern Ireland), it must inform that other local authority.

(4) In this section “relevant partner”, in relation to a local authority, means—

(a) the local policing body and the chief officer of police for a police area any part of which falls within the area of the local authority;

(b) any other local authority with which the authority agrees that it would be appropriate to co-operate under this section;

(c) any provider of probation services that is required by arrangements under section 3(2) of the Offender Management Act 2007 to act as a relevant partner of the authority;

(d) any provider of regulated activities as listed in Schedule 1 to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010;

(e) a local health board for an area any part of which falls within the area of the authority;

(f) an NHS trust providing services in the area of the authority; and

(g) such person, or a person of such description, as regulations may specify.’.

New clause 19—Corporate responsibility for neglect—

‘(1) This section applies where a person registered under Chapter 2 of Part 1 of the Health and Social Care Act 2008 (a “registered care provider”) in respect of the carrying on of a regulated activity (within the meaning of that Part) has reasonable cause to suspect that an adult in their care is experiencing, or is at risk of, abuse and neglect.

(2) The registered care provider must make (or cause to be made) whatever enquiries it thinks necessary to enable it to decide whether any action should be taken in the adult’s case and, if so, what and by whom.

(3) Where abuse or neglect is suspected, the registered care provider is responsible for informing the Safeguarding Adults Board in its area and commits an offence if (without reasonable cause) it fails to do so.

(4) A registered care provider is guilty of an offence if the way in which its activities are managed or organised by its board or senior management neglects, or is a substantial element in, the existence and or possibility of abuse or neglect occurring.

(5) A person guilty of an offence under this section is liable on conviction to imprisonment for a term not exceeding five years, or to a fine, the range of which will be specified by regulations, or to both.’.

New clause 22—Duty of candour—

‘(1) Local authorities must take reasonable steps to create an open and honest culture that enables employees to report reasonable suspicions of abuse and neglect of individuals in the care of the local authority or a provider commissioned by the local authority.

(2) “Reasonable steps” include—

(a) ensuring that staff are aware of and trust processes open to them;

(b) provision of advice about the process;

(c) review of procedures; and

(d) regular communications to staff about the processes.’.

New clause 23—Offence of abuse of adult in care—

‘Any person who wilfully causes or permits an adult who has care and support needs to suffer physical or mental pain or injury or, having the care or custody of that adult, wilfully causes or permits the person or health of that adult to be injured, including through the neglect of their care and support or health needs, or wilfully causes or permits that person to be placed in a situation that endangers his or her person or health, including mental health, is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both,

(b) on conviction on indictment, to imprisonment for a term not exceeding five years or a fine or both.’.

New clause 24—Offence of corporate neglect—

‘In section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007, insert—

“1A Corporate neglect

(1) An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised—

(a) cause a person to suffer abuse or neglect;

(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the person who suffers abuse or neglect; and

(c) the offence under this subsection is called corporate neglect.’.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Welcome to this afternoon’s sitting, Mr Bayley. Before we adjourned for Foreign and Commonwealth Office questions, we were debating clause 42. It was a very liberal debate on a very liberal question about when liberty is to be protected and at what point the burden is such that the state should use its power for a good, which is to protect the individual from abuse. I will not dispute by one iota that the Minister has set out serious issues at the heart of the debate. Although I disagree with much of the conclusion, I think the analysis is absolutely right.

The Minister has had a bit of a hard ride—we probed, pushed and prodded—but he has been generous in engaging with the concern that members of the Committee have. I will respond mainly to new clause 3, although I will briefly touch on the others, if I may. The Minister is right to say that the issue is about the balance of risk, but is wrong when he comes down on the side of the status quo of not having a power of entry. I agree with the Minister that we are judging questions of human rights; we will be spending a lot of the rest of today doing just that.

The concept and legal framework of human rights is not only about checking state power—it is not simply a negative thing about stopping things—but about placing upon the state positive obligations, particularly under the European convention on human rights and under the Human Rights Act 1998, to take action to protect people. In other words, the state can use its power for good. That is why we are in this place; we are using the state’s power for things that we think are about the common good.

We should take the contribution of the hon. Member for Sheffield, Heeley seriously, given the 20 years of practical social work experience that she draws upon. She talked about creating cultures that are about doing the right thing. The Minister agreed and stressed that the law and regulation are not sufficient to get great cultures, and I think that that is absolutely right.

The Minister rightly went on to say that we do need good regulations and law to underpin good culture. For me this is about a human rights-based approach to safeguarding. The Minister talked about the unintended consequences of new clauses. The new clauses and amendments are not only tabled by Members who are not in the Government. As was exposed during our consideration of the new clauses, the drafting of the legislation that set up the Care Quality Commission had within it a flawed clause—a Government clause—so I gently suggest that Governments can err as well, and there can be unintended consequences in the legislation that they put through. That is why I am probing, because this is one of those areas where a reluctance to act, for very good reasons, is wrong.

It is often said that there will not be many cases. It has been suggested that we are talking about extreme cases, but that is not so. We are talking about cases where a third party is preventing access even to determine what the nature of the case is to conduct the clause 42 power. If the power prevents even one tragedy, and one extra day of abuse is reduced, I believe it is worth having. The new clause offers a proportionate mechanism, and the court would have to be satisfied about the application of that when it comes to it.

I am concerned about the consultation that the Minister has prayed in aid in his response. No one could have expected complete unanimity on something as contentious as this, but there was a clear preponderance of views among organisations, many of which represent service users and public bodies such as safeguarding boards, in favour of taking the opportunity to legislate in this area. Indeed, within that was the view of the Equality and Human Rights Commission, which has some locus when it comes to determining issues about the applicability and role of the Human Rights Act. My fear is that when it comes to power of entry, insufficient weight is being given to those without power and those without voice. They are the beneficiaries of the new clause, but they are sitting silently and cannot contribute. Those who can contribute are not beneficiaries.

Norman Lamb (Liberal Democrat, North Norfolk)

I put two questions to my right hon. Friend. He says that if the measure saves only one person, it is worth it. Does he accept that, as is recognised in the new clause, in some circumstances the exercise of a power of entry might put someone at risk and result in the sort of retribution outlined in the new clause? Does he also accept that 70% of the individuals who responded to the consultation—I appreciate that a mix of people responded—were against the measure?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Let me try quickly to work through those fair points. I believe that primary legislation would contain all the necessary safeguards, because the new clause would explicitly require a court to satisfy itself that the well-being principle had been taken into account in exercising the function. That would include choosing the least restrictive option, ensuring that decisions about an individual are made with regard to their individual circumstances and ensuring that the individual’s views, wishes and feelings are taken into account, while also protecting people from abuse and neglect. The Minister is right that those two things have to be constantly weighed against each other, but that is what a court is there for. Clause 1 provides the lens through which the new clause should be seen. I believe that that addresses the concerns expressed by the Minister and by Mind, which is why I added the principle to the new clause.

The Minister referred to the consultation, and mentioned the suggestion that the expert court—the court of attention—should exercise jurisdiction in this regard. I have sympathy for that, and there is arguably scope for a different approach in that area. I note that inherent jurisdiction is now being prayed in aid, but paragraph 13 in the consultation document set out a powerful and unequivocal case as to why that was not satisfactory. There was no suggestion that the Government were consulting on that; they declared their view, but they now appear to have set that view aside when it comes to my new clause.

The Minister said that there has been widespread ignorance about existing powers, and he promised to provide in guidance examples of scenarios in which existing laws might be used. It would help me if, before 4 February, when the Committee will vote on the new clauses, he would provide the Committee with a letter setting out the current state of the law, the existing powers, their precise locations and when they have been used. Such information would help us decide whether to vote for or against the new clauses, or not to press them.

Norman Lamb (Liberal Democrat, North Norfolk)

I am happy to write as my right hon. Friend suggests, setting out what the existing provisions allow for and what the guidance might cover, even if we have not yet issued the guidance, which has to be done jointly with the Association of Directors of Adult Social Services and the Local Government Association. Whatever disagreement we have over the matter, it will be in everyone’s interest to have clear practical guidance with case studies to guide practitioners about the powers that they have and how to exercise them.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I agree. The Department of Health would be doing everyone a service if it undertook to provide that, and I look forward to seeing it. It also concerns my hon. Friends the Members for Truro and Falmouth and for Totnes, and we will all want to look closely at that information. Scotland has had legislation since 2007 and it has been evaluated. There is no suggestion that that, if anything more stridently drafted piece of legislation has had the unintended consequence and harm that the Minister fears could flow from the new clause. Will he ask his officials to take another look at those evaluations? I dare say that there will be something in there that I have missed and that will be useful to reflect on.

New clause 4 is about partner agencies. I take the Minister’s point about safeguarding boards and the provisions in schedule 2 and will leave that matter to rest for now.

On new clause 24, which deals with corporate accountability, the Minister rightly talked about fundamental standards. I wonder whether it would be proper or possible to consult the Director of Public Prosecutions. I hope that it is possible and that the Minister will do this. It seems to me that, in making sure that we have language that can be used for a prosecution, it might be sensible to consult those who are in the business of doing that all the time for the Government and, indeed, in the public interest. Will the Minister make sure that that it is done to ensure that we get the language absolutely right so that it does not have a coach and horses driven through it by a well paid QC in a court at a later stage? Will the Minister give some indication on that?

Norman Lamb (Liberal Democrat, North Norfolk)

What I can say is that an exhaustive process is under way between the Care Quality Commission and the Department of Health to ensure that we get this right. There has already been a consultation, and a further process will be under way. The whole intent is to get to the point that deals with my right hon. Friend’s concerns.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I thank the Minister for that and am reassured. On new clause 3, which deals with wilful neglect, I very much welcome the commitment about consultation. It suggests that this Bill will have sailed and become and Act before that becomes legislation, but I hope there will be a slot, perhaps in the next Session.

These are particularly wicked issues in terms of getting it right and being confident that we are doing so. I hope that, if the Minister’s view today prevails, as I suspect it will, he has got it right because the consequences of getting it wrong are absolutely tragic. For that reason, I wait to see the letter about new clause 3 and will be happy to withdraw the amendment.

Hugh Bayley (Labour, York Central)

Is it the Committee’s pleasure that the amendment be withdrawn?

Liz Kendall (Labour, Leicester West)

Welcome back to the Chair, Mr Bayley. We have had a full debate on these topics, which is absolutely right. I will say a few words about the amendments and new clause 22, and make a couple of comments on new clauses 3 and 19.

The Bill contains detail on the definition of financial abuse, which is not broad enough to cover all the aspects of abuse that we want to see addressed. The Minister has said that there will be guidance on that.

Norman Lamb indicated assent.

Liz Kendall (Labour, Leicester West)

I can see the Minister nodding. I stress that, if he can make the guidance as full and as flexible as possible, I would be happy not to press amendment 116.

As hon. Members may remember, amendment 118 states that, if someone with the power of attorney suspects that the person for whom they have that power is being abused, the local authority should act on that. We have concerns that data protection might prevent local councils from responding to such concerns. I hope the guidance will consider those data protections laws.

Norman Lamb indicated assent.

Liz Kendall (Labour, Leicester West)

I am disappointed that the Government have spoken against amendment 117, which would place a duty on all relevant partners—such as the police, the NHS and the probation service—if they suspect abuse, as there is such a duty in relation to suspected abuse of children.

Norman Lamb (Liberal Democrat, North Norfolk)

I confess that I am not an expert on children’s legislation, but my officials have considered the matter. The shadow Minister asked whether there is an equivalent measure in children’s legislation that requires organisations to report. The answer is no, and the introduction of mandatory reporting is not being considered. I understand that the international evidence is that such action might result in a steep rise in unsubstantiated allegations. That is the advice I have received in response to her question this morning.

Liz Kendall (Labour, Leicester West)

I am glad that the officials were working so hard during the lunch break.

Meg Munn (Labour, Sheffield, Heeley)

For the sake of clarity, I have sought guidance from the children’s Minister, the hon. Member for Crewe and Nantwich (Mr Timpson) precisely on whether in law there is currently a requirement to report concerns about children, and I received a letter only yesterday stating that there is a requirement to do so. That is different from a doctrine of mandatory reporting. Clearly we are not here to discuss such things in detail, but the children’s Minister is clear that, as it relates to children’s services, there are requirements.

Liz Kendall (Labour, Leicester West)

I am grateful to my hon. Friend for that helpful intervention. There is clearly a difference of opinion between Department of Health civil servants and what the children’s Minister has said. If the Minister wishes to clarify that, I would be happy to give way.

Norman Lamb (Liberal Democrat, North Norfolk)

Given the apparent contradiction, I am happy to write to the hon. Lady after full and proper consultation with our colleagues in the Department for Education.

Liz Kendall (Labour, Leicester West)

I am glad to hear the Minister say that because it is important. We want the same objective, which is that anyone who has cause to suspect abuse is under a duty to report that suspicion. If there is such a duty in relation to children’s services, there should be one in relation to adults. We need greater clarity on that.

I am also disappointed that the Minister does not think a duty of candour is required in law for local authorities, even though a duty of candour is being introduced for NHS bodies, because ultimately it is all about changing the culture.

Norman Lamb (Liberal Democrat, North Norfolk)

To clarify, I have said that the statutory duty of candour we seek to introduce will apply across health and social care and will apply to local authorities where they are undertaking functions registered with the Care Quality Commission. The duty of candour set out in amendment 117 is not the same as the statutory duty of candour that most people talk about when they refer to such a duty. The statutory duty of candour, as commonly understood, involves a criminal offence if there is a failure to be open with people. This amendment is more about just encouraging a culture of openness—which I very much support—but it does not achieve what the statutory duty of candour achieves.

Liz Kendall (Labour, Leicester West)

Could the Minister specify the precise bit of the Bill that applies the duty of candour equally to councils as to the NHS? Maybe I have misread the Bill, but I would be grateful for clarification.

Norman Lamb (Liberal Democrat, North Norfolk)

The statutory duty of candour will apply to any organisation that is registered with the Care Quality Commission, in terms of its provision of health or care services. We were clear that it should apply across health and social care, not just within the NHS.

Liz Kendall (Labour, Leicester West)

I will check when we come to the duty of candour bit of the Bill—part 2—and I may probe a little more when we come to it if I feel that it is not quite as the Minister said. Not that I doubt him for a second.

We took the debate about new clause 3 and the power of entry very seriously. All members of the Committee understood the balance of risk, and we were very aware of the different concerns raised. I particularly listened to what the Minister said about the concerns of mental health charities. However, I agree with the right hon. Member for Sutton and Cheam that the charities’ initial concern when the consultation came out was in relation to the Mental Health Act 2007, and people forcing an entry and forcing treatment upon people. I understand mental health charities’ concerns about what that would mean for those users. However, the new clause was tightly defined to make it clear that it was not about that. I hear what the Minister says about writing back. I hope that he will write to all members of the Committee about the existing provision in the law. We may wish to return to this matter on Report. We will keep it under review.

My hon. Friend the Member for Blaenau Gwent will speak to new clause 19 in a moment. I absolutely do not doubt the Minister’s intent to make sure that private companies and corporations can be prosecuted and held to account. When we were in government, we tried to make a difference on that. The Minister has highlighted a loophole that needs to be closed and that is right. My two concerns are that, first, the CQC has a hell of a lot on its plate. We are about to come to the provider failure regime and market failure regime. The CQC has to do that on top of inspecting all hospitals, all social care providers and all GPs. Is it really going to take forward prosecuting private companies? Should not families or the police be able to do that? Should there not also be the ability not just to fine people, but for individuals to go to jail if they are found to be neglectful?

I do not want to say any more than that this stage, because perhaps the Minister will intervene on my right hon. Friend—my hon. Friend the Member for Blaenau Gwent; I only were he was a “right hon.” officially. Those are my remaining concerns. The Government’s proposal is some improvement, but I am concerned that it does not go far enough. On that point, you will be glad to hear, Mr Bayley, I will sit down.

Hugh Bayley (Labour, York Central)

It is my job to try to permit debate to happen as fully as Committee members want. However, we are in a bit of procedural difficulty now. I put Mr Burstow’s motion that amendment 42 be withdrawn to the Committee, because I thought that the group of amendments had been fully debated this morning. It is clear that a number of Committee members want to discuss those amendments further. The neat and tidy way to allow that would be for me to ask the Committee to agree to strike from the record the decision taken on Paul Burstow’s amendment, to allow the other matters to be discussed, and then to have him ask leave to withdraw the amendment when the debate on this matter is finished.

The Government and Opposition Whips are happy, therefore, we will treat it as if Mr Burstow had sat down and we had not put the question.

Nick Smith (Labour, Blaenau Gwent)

On new clause 19, first, I thank the Minister for his update on the new strengthened role for the CQC. I hope that that is a success. I understand that it has a lot more to get its teeth into in future, as my hon. Friend said.

Norman Lamb (Liberal Democrat, North Norfolk)

I am grateful to the hon. Gentleman for giving way before he finishes his first sentence. The CQC clearly has a lot on its plate. However, the power of prosecution, which can be exercised, as opposed to not being exercised in the past because of the problem of having to serve a notice, will aid the CQC in driving up standards. If people understand there is that accountability, that will drive improvements in behaviour.

In response to the shadow Minister’s point about a risk that if the responsibility is given to the police they may not, in some way, take it seriously, because they have a lot on their plate as well, it makes sense to give the power to the specialist regulator, to aid them in their duties to drive up standards in social care.

Nick Smith (Labour, Blaenau Gwent)

I hear what the Minister says, but up until now the CQC has done not very well—that is the polite way of putting it—with the responsibilities, albeit that the Minister says that there are good reasons for that. I want the Minister, please, to give further thought to a corporate neglect offence, including the penalty of jail, which would send the strongest possible signal that care providers should focus on high quality care and act as a proper deterrent to poor care.

Norman Lamb (Liberal Democrat, North Norfolk)

I thank the hon. Gentleman for generously giving way again. I wanted to alert him to the fact that we are also introducing, alongside the power of prosecution, a fit and proper person test, which is also powerful and is needed, so that the director of a company that has completely failed its residents, or a domiciliary care company, for example, can in future face the possibility of the prosecution of the corporate body and of individual directors, if there is culpability, or an unlimited fine. The directors also face risking not being able to work in the sector again, because the CQC will have to be satisfied that those individuals are fit and proper persons. In earlier discussions with me, Opposition Members demanded the introduction of such a test. We are now doing that. I hope that the hon. Gentleman is encouraged by that.

Nick Smith (Labour, Blaenau Gwent)

I am encouraged, because we need to apply belt and braces in instances such as Operation Jasmine in Gwent. I am pleased that the Minister said that. However, having said that, I still think that we need a prison penalty for directors of care companies who do not properly fulfil their duties. I will not push new clause 19 to a vote, but I should be grateful if the Minister gave it further thought to see whether that is possible, because we must hammer home this important issue.

Hugh Bayley (Labour, York Central)

I think that we have now completed the debate on this group of amendments and that all Committee members who put their names to the amendments have shown that they have no wish to press those to a vote.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I beg to ask leave to withdraw the amendment.

Schedule 2 - Safeguarding Adults Boards

Liz Kendall (Labour, Leicester West)

I beg to move amendment 119, in schedule 2, page 119, line 24, at end insert—

‘(e) The Secretary of State.’.

Hugh Bayley (Labour, York Central)

With this, it will be convenient to discuss amendment 120, in schedule 2, page 119, line 24, at end insert—

‘(e) The Chief Inspector for Social Care.’.

Liz Kendall (Labour, Leicester West)

I will keep this short. These two amendments are practical. They are essentially about ensuring that we learn the lessons of any issues, problems or practices that come up on safeguarding vulnerable adults, and that we learn the lessons from councils across the country. They relate to the fact that the new safeguarding boards will all have to produce an annual report. Amendment 119 proposes that those reports be given to the Secretary of State, and amendment 120 that they also be given to the chief inspector for social care. That is because we need to ensure that across the country we draw out any key themes that emerge about types of abuse that are occurring or increasing, or about any problems, in policy and practice, in preventing, tackling or stamping out abuse. Those issues may well include those that we debated earlier to do with the need to gain the power to access people’s homes, or to tackle neglect and abuse among care home providers. Different types of abuse are emerging that have not been properly identified.

Obviously, I want to help the Secretary of State, and it would benefit any Secretary of State if he—or she, perhaps, one day. [Hon. Members: “Ah!”] I was thinking of my former boss. It would benefit them if they could look across what is happening in different councils to see if issues were emerging. However, it would also benefit the chief inspector for social care if she—or indeed he, one day—could draw out themes.

I will focus on that point for a moment. As we have already said, the Care Quality Commission’s powers and responsibilities regarding monitoring and inspecting how local councils commission services are removed by the Bill. Ministers have said several times, “Ah, but it can still do thematic inspections.” If it received all the annual reports from local councils, it would be in the best position to define what those thematic inspections might look at. This is a way of saying, “Let’s learn from what is happening across the country. Let’s not reinvent the wheel; let’s make sure that the Secretary of State and the chief inspector for social care can really look at what is happening across the country, to identify problems that may need to be addressed—in policy, in practice or in the CQC’s reviews—and to make sure that we have high-quality care and support, and do everything we can to stamp out abuse and neglect, and prevent it from happening in the first place in all parts of the country.” It is a practical suggestion, which I hope the Minister will accept.

Norman Lamb (Liberal Democrat, North Norfolk)

I thought that the hon. Lady was going to go on a little longer, so I am still eating my Polo. Apologies for that.

Hugh Bayley (Labour, York Central)

I strongly approve of people eating York-made produce. Has that given you enough time to chomp it up?

Norman Lamb (Liberal Democrat, North Norfolk)

I am glad that I have made the Chairman happy. It is all part of the service.

I thank the shadow Minister and her hon. Friends for tabling the amendment. The Bill places a duty on safeguarding adults boards to publish their annual reports, as she mentioned. Those reports will be publicly available to ensure transparency regarding the way that the boards work. That means that the Secretary of State and the chief inspectors, like anyone else, will be able freely to access and review the reports of all safeguarding adults boards. I agree with the shadow Minister that themes may well emerge from analysis of those annual reports. The analysis could be by pressure groups and so on, which could be enormously valuable in putting pressure on the system and demanding change.

Safeguarding adults boards will operate at a local level. We would expect the local healthwatch and health and wellbeing boards to monitor the safeguarding adults boards’ progress and report to the Secretary of State if there were particular matters of concern about their operation. That would again put the health and wellbeing boards centre stage in the local health care system. We would also expect them to report to the chief inspector of adult social care if there were particular matters of concern about a board’s operation, or about a registered provider of adult social care.

We have always been clear that the role of Government is to provide vision and direction, and to ensure that the legal framework is clear. The law must be proportionate and maximise local flexibility, so that the best decisions can be made and tailored to the needs of each community. I am confident that the Bill creates the right balance between accountability and flexibility, together with openness, so I respectfully ask the shadow Minister to withdraw the amendment. The transparency that we are requiring will enable real concerns to be raised.

Grahame Morris (Labour, Easington)

The Minister has explained why the Committee should reject the amendment. Can he advise us on what the Minister at the Department of Health will do with the information collected? Is the intention to analyse that, or have some third party do so, and draw the necessary lessons, or will it be deposited at the Department of Health, to be used as part of the evidence if something goes wrong?

Norman Lamb (Liberal Democrat, North Norfolk)

It is, of course, the Opposition amendment that seeks to require the supply of the reports up to the national level. The Government are saying that, because there will be that complete transparency, we do not think it necessary to add a requirement for it to be sent up. The great danger, as the hon. Gentleman says, is that it gathers dust on a shelf, or virtual shelf, and that nothing happens. The fact that there is transparency and we now have health and wellbeing boards, due to the work of my right hon. Friend the Member for Sutton and Cheam when he was in this post, enables real issues of concern that arise from the annual reports to be taken up by the chief inspector of social care, or the appropriate person to pursue them.

Bill Esterson (Labour, Sefton Central)

The Minister has started a debate. On safeguarding adults boards, the children’s safeguarding boards are to be inspected from November by Ofsted. Does he think there are lessons in the approach being adopted for children, following on from the point about what happens to information collected? Is there a lesson and a parallel around inspection, to avoid the problem he has identified of evidence just sitting on a shelf?

Norman Lamb (Liberal Democrat, North Norfolk)

In previous discussions, I have tried to make the point that where there is clear evidence of a real problem, the CQC, with local government, can intervene, inspect and report, and it has powers then to take action. We have moved away from the regular annual process that bogged down local government in substantial bureaucracy but may not have achieved the objectives that we seek.

The more targeted work of the CQC may well be more effective, provided that that work is used. I have made it clear that it should be used where there is clear need. I hope that the shadow Minister will agree to withdraw her amendment.

Liz Kendall (Labour, Leicester West)

I do not think that we want to press the amendments to a vote, but it is important that someone centrally looks across all these themes, issues and concerns about what is happening on the ground to ensure that policy, practice and legislation keep up with the issues raised by safeguarding. I hope that the Secretary of State, the Minister with responsibility for care and, crucially, the chief inspector of adult social care regularly ensure that their teams do that, as that is the way to change the culture proactively and address any problems. I beg to ask leave to withdraw the amendment.

Clause 48 - Provision of “care and support services”

Hugh Bayley (Labour, York Central)

An amendment had been tabled to delete the clause, and the proper way to deal with that procedurally is to have a stand part debate. I call the Minister to explain his proposal.

Norman Lamb (Liberal Democrat, North Norfolk)

I recognise the strength of feeling on this issue. The Human Rights Act 1998 is about the relationship between the state and the individual, and that is why the convention was established. It is a powerful document that sought to protect the individual citizen from the oppressive power of the state, whether that was the national state or the local state, and I strongly sign up to that principle. The Act, however, was not intended to apply to entirely private arrangements, and it requires quite a contortion of the legislation to make it do that. That would involve defining a private care home in Sheringham, Dudley or even Morecambe and Lunesdale—I have completely lost my thread, but it requires the private care home to be defined, in effect, as a public body. This seems a very odd interpretation of what the European convention on human rights was supposed to be about and, indeed, what the Human Rights Act was about, which implemented the convention in the UK.

If clause 48 became law it would be the first time the Act extended into the purely private sphere, in this case the relationship between an individual and a private care provider. If that principle were established, other interest groups self-evidently could argue that they should also be able to challenge private providers on human rights grounds in other areas, taking us further and further from the purpose of the Act into duplication and overlap with other legislation.

That is not to say in any way that people do not need protection against private providers in all sorts of spheres. Through all the steps we are taking in Government, through the strengthening of the inspection regime, through corporate accountability and a range of other measures, we have sought to strengthen the protection of the citizen against a private provider, but the idea that we apply the Human Rights Act, which is there to protect the citizen against the oppressive state, to the private relationship between a private provider of a care home and the individual citizen, seems somewhat bizarre.

Grahame Morris (Labour, Easington)

The Minister is advancing an interesting argument about private provision that is commissioned through a public service, through taxpayers’ money. Does he think that principle should also apply to freedom of information, for example, where a private sector or non-public body is providing a service, even though it is to a local authority or an NHS body, with public money?

Norman Lamb (Liberal Democrat, North Norfolk)

First, I completely agree that if the commissioning of care services in some way potentially infringed the human rights of a citizen and the commissioning was undertaken by a state body—a local authority, NHS England or anyone else—the citizen has rights, because it is their relationship with the state that we would be talking about there. The point I am making is that it would seem bizarre to apply those principles of the protection of the individual against the oppressive state to the relationship between the individual and a little care home in Lunesdale. On the hon. Gentleman’s point about freedom of information, as a general principle I agree in openness. I believe in access to information because I think on the whole it encourages better decision making. The great importance of it is in the public sphere. That is the principle that I essentially follow.

I wholeheartedly support the principles of the Human Rights Act, but clause 48 represents an unprecedented extension to its scope. I urge hon. Members who argue this point to think about the precedent it sets and how it extends the Human Rights Act into every sphere of life in an unusual and extraordinary way. It completely confounds the original purpose of the Bill. An extension to all regulated social care casts doubt about the application of the Human Rights Act to other functions which are considered to be public in nature, but are not expressly designated as such.

The Human Rights Act gives rise to positive obligations on public authorities. Individuals can bring human rights claims against a local authority or the Care Quality Commission when they consider that the organisation has failed in its positive obligation to take reasonable steps to avoid risks of ill-treatment.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Obviously the CQC has obligations under the Human Rights Act, so would it be unreasonable of the CQC as part of its licensing ambitions to assert that in all circumstances providers comply with the Human Rights Act?

Norman Lamb (Liberal Democrat, North Norfolk)

We want to ensure that everything that providers do that is regulated by the CQC meets the highest possible standards. In regulating entirely private providers, which, as I say, simply do not fall within the intent of either the European convention on human rights or the Human Rights Act, the intent is to ensure that the people who use that service are protected in exactly the same way as everyone else.

I ask all hon. Members who are tempted by the clause: do they really think that when people were drafting the European convention on human rights, they were thinking about private relationships between individuals? Of course they were not. We know that. We know what the purpose was; it was an incredibly important purpose, and one that we should respect for what it was. We seek to protect people in private relationships in different ways—absolutely—but not through this route. That would just stretch the legislation beyond its original intent to a most extraordinary extent. That does not mean that someone purchasing a service in the private sector does not have rights and is not protected from abuse or neglect. They are protected and they have rights of legal challenge against the provider through contract, criminal or tort law if an offence has been committed.

Finally, it is worth noting that the Human Rights Act brings the European convention on human rights into domestic law. Clause 48, in going further than the convention, would create confusion. Supporters of the clause have not produced a body of cases where the absence of the provisions in the clause has led to people being denied justice. That suggests that the clause is being proposed, in a sense, as a sticking plaster to deal with other failings of the care system. That is the wrong approach in principle and in practice. I ask those who argue for the clause: did the existence of the Human Rights Act protect individuals from abuse or neglect in Mid Staffordshire hospital? No, it did not. Did it protect any other individual? The right hon. Member for Cynon Valley (Ann Clwyd) has been brilliant in raising concerns about the quality of care in our NHS hospitals. Did the HRA protect any of those people from abuse or neglect? Of course it did not.

Let us focus on effective measures to stop abuse or neglect in the first place, and let us not try to pretend that the clause will achieve something that we all, in our heart of hearts, know that it will not achieve.

Jamie Reed (Labour, Copeland)

I bow to the Minister’s legal expertise on these matters. He has made a persuasive case in parts. Given that we are all passionate about achieving, as far as possible, comprehensive integration of care services in the public and private sectors, is he entirely confident, bearing in mind the intention of the drafters of the law in question, that service users in both the private and the public sectors will enjoy precisely the same protection under the law without the clause?

Norman Lamb (Liberal Democrat, North Norfolk)

Yes, I am. The CQC’s new fundamental standards will apply to all organisations registered with the CQC, public or private. The CQC will seek to ensure that all registered providers comply with the aims of the Human Rights Act in how it applies its inspection regime and how it uses its enforcement powers, including prosecution. The risk of prosecution is surely a greater fear than the risk of a claim under the HRA in a civil court.

If asked, “What would the Human Rights Act, if it were applied in the private sphere, give to individuals that is not available through contract law or through raising their concerns with their local authority, adult safeguarding board or the CQC?”, I am lost for an answer. It is completely inappropriate.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am listening to the Minister’s argument, and I understand his concern about the potential overreach in applying the Human Rights Act, but part of the reason why the Joint Committee made its recommendation and why their Lordships added the clause to the Bill is that there is an ongoing concern about a lack of clarity in care arranged by local authorities following the YL v. Birmingham city council case. The law is not clear about whether publicly arranged care is covered by the Human Rights Act. We need to make it clear, but the Minister is saying that it will not be made clear.

Norman Lamb (Liberal Democrat, North Norfolk)

I understand my right hon. Friend’s concern, and we can continue to have that discussion. However, we are talking about a clause that would apply the Human Rights Act to the completely private contract between the care home in Sutton and the individual. Is he really suggesting that the drafters of the European convention had that sort of relationship in mind? Of course they did not. The individual in that care home needs the same protection as anyone else, but they get all the protection in real terms that any other individual who is funded by the state gets. I say in all seriousness that there is a risk that the clause is tokenism, not real protection. We are all concerned about the protection of vulnerable individuals, but I do not see what the clause would provide that is not already provided more effectively in other ways.

People and their loved ones want and need the reassurance that they will be treated with dignity, compassion and kindness. What we should be and are doing is concentrating on preventing harm, abuse and neglect from happening in the first place. The clause would not deter those who perpetrate abuse or neglect, or galvanise providers into preventing those things, any more than the deterrents that are already in criminal, contract and tort law.

The director of a care company who is neglectful of their duties and allows a frail, elderly person to suffer as a result will be much more fearful of the potential for prosecution and an unlimited fine than of the possibility of a claim under the Human Rights Act in a civil court. The real difference will be made by the stronger measures the Government are introducing to improve care; the emphasis that the Care Quality Commission is placing on individual experience; the role that clinicians and users play when care homes and other care facilities are inspected; the improvements in commissioning and safe routes for whistleblowers; and the role of the chief inspectors.

Debbie Abrahams (Labour, Oldham East and Saddleworth)

The Minister is making a cogent argument. What are his concerns about the clause standing part of the Bill?

Norman Lamb (Liberal Democrat, North Norfolk)

My concerns are what I have already said. It would achieve nothing, and I do not like legislating for tokenistic reasons. I believe in the importance of the state in enabling and protecting, so I want to ensure that we use legislation for real purposes, not tokenism. There is an enormous risk that if the clause were allowed to stand part of the Bill it would set an extraordinary precedent in taking the Human Rights Act into every aspect of our lives and diverting the Bill from its original purpose, which is to protect people from the overbearing state.

If the hon. Lady’s party returns to Government at some stage, does it really want the added complication of overlapping and confusing legislation in areas where it was never intended to apply? Of course it does not. It wants simplicity, clarity and proper protection for people, which is what this Government seek to achieve.

Significantly, the Bill places adult safeguarding on a statutory basis for the first time with the local authority in a lead role and places beyond doubt that the police and the NHS are key partners in the prevention, detection of and response to abuse. The Bill is designed to strengthen the culture of transparency and accountability in adult safeguarding by requiring community engagement, public reporting, statutory safeguarding adults reviews, and the involvement of local healthwatch organisations. With those things in place, we will have a strong and effective mechanism if something goes wrong.

I understand why people want the clause and support its underlying intent, but it would not deliver what they want. Our method is much more effective and will ensure that protection is in place. Fundamentally, this debate is about the safeguarding of vulnerable people, which is what we are all interested in, but clause 48 would not achieve that and I think we all know it. On that basis, I beg to move that clause 48 does not stand part of the Bill—I think I have put that correctly, Mr Bayley.

Hugh Bayley (Labour, York Central)

At the end of the debate, I will put the question that the clause stand part of the Bill, so those who are persuaded by the Minister’s argument can vote no at that point.

Liz Kendall (Labour, Leicester West)

I will set out why clause 48 should stand part of the Bill. I listened carefully to the Minister’s passionate series of arguments, and I do not doubt for one second that he believes the points he made to be right. He told the Committee last week that he used to be a lawyer, which I did not know, so he will have much more personal experience and understanding of legal issues than me, who only did history at university.

Norman Lamb (Liberal Democrat, North Norfolk)

Only? Do not denigrate history.

Liz Kendall (Labour, Leicester West)

I am not denigrating history; I am just saying that I did not do law.

My understanding of why clause 48 is needed is drawn from four sources: a strong, helpful and clear briefing from the Equality and Human Rights Commission; a joint briefing produced by the Law Society, Liberty and a group of care charities that work with older and disabled people, including Age UK, Mind—to which the Minister referred in his comments about power of entry—Scope and Disability Rights UK; the recommendations of the Joint Committee on the draft Care and Support Bill; and a close reading of several excellent contributions made in the other place by extremely eminent and experienced peers, including Lord Low of Dalston, who tabled the clause, Lord Mackay of Clashfern and Lord Hope of Craighead. My comments are inspired by that strong group of people, and I want to explain why they think the clause is needed and to go through why some of the arguments made by the Minister today and the Department of Health previously are incorrect.

All the organisations that I listed believe that clause 48 is needed in order to make it clear in legislation that all providers of social care services regulated by the Care Quality Commission are exercising a public function for the purposes of section 6 of the Human Rights Act. Their reasoning for why the clause should be included relates back, as the right hon. Member for Sutton and Cheam mentioned, to the House of Lords decision in the case of YL v. Birmingham city council in 2007.

Norman Lamb (Liberal Democrat, North Norfolk)

Will the shadow Minister give way?

Liz Kendall (Labour, Leicester West)

I hope that the Minister will let me proceed with some arguments first. I will give way later.

The Law Lords held that a private care home providing residential care services under contract to a local authority was not performing a public function, so its residents were excluded from protection by the Human Rights Act. In 2008, the Labour Government sought to close the loophole through section 145 of the Health and Social Care Act 2008 to make sure that people had equal rights, whether they were cared for in a private or not-for-profit care home or in a council or state-funded care home.

However, section 145 of the 2008 Act only partially closed the loophole. First, it only covered people placed in residential care under the National Assistance Act 1948, and therefore continued to leave out people in private or third sector residential homes arranged under section 117 of the Mental Health Act 1983 or sections 4A and 4B of the Mental Capacity Act 2005, and those receiving NHS continuing care. Secondly, the loophole remained open for those with publicly arranged but privately funded home care or domiciliary care services. The Equality and Human Rights Commission is very clear on this point. It states that it has taken advice from senior counsel, and that

“the effect of the YL case is that home care services provided under contract to local authorities are...outside the scope of the HRA.”

We have said regularly throughout the progress of the Bill that the key challenge in future is to help more people to stay living healthily and independently in their own home. Around 500,000 older people currently receive home care commissioned by their local authority, and 84% of those people receive care from private or third sector organisations. Because of the loophole, which remains partially open, many users of home care services may be denied direct legal redress against a care provider for any Human Rights Act abuses that arise. This is the context within which we are debating the clause. There are clear gaps in the system, with some people receiving publicly funded care being able to seek redress directly through the provisions of the Human Rights Act, but others, in private or third sector-provided home care, not being able to do so. That is the context, and that is why those organisations, lawyers and legal groups believe the clause is needed.

Norman Lamb (Liberal Democrat, North Norfolk)

Does the shadow Minister have any idea why the Labour Government limited their action to extend the Human Rights Act to circumstances in which a private care home was being commissioned and funded by a local authority to provide care to someone, but did not extend it, as she now argues we should, to the circumstances of an entirely private arrangement, where no state money is involved, which is covered by the clause? Does she really think that that was in the minds of the drafters of the original European convention, or indeed the Human Rights Act when it came into force in this country?

Liz Kendall (Labour, Leicester West)

The honest answer is that I do not know why the loophole was not fully closed, not only in relation to the privately funded providers of residential care, but, crucially, to home care services. Perhaps the Minister will explain, but I do not know why that happened at the time. We are talking about two specific aspects of the loophole. One concerns the group of people in residential care who are not covered, and the other concerns those in domiciliary care. I do not know whether officials went through all the papers at the time to find out why that happened. I am explaining the basis of the problem. The point is about people having equal protection and equal redress under the law, whether they are in privately funded, third sector or publicly funded organisations. The care organisations believe that people should have equal rights under law.

Norman Lamb (Liberal Democrat, North Norfolk)

Could the shadow Minister give any example of a protection that could be provided to someone that they do not already have under existing legislation or as part of the steps we are taking with this Bill?

Liz Kendall (Labour, Leicester West)

I will explain at the end of my comments why Labour members of the Committee and the organisations I have cited do not believe that this is the solution to the problems of poor quality care and why they believe that the amendment is necessary.

I am sure the Minister has read the House of Lords debates, so he will know of a number of cases involving individuals in care homes. In one case—I am not sure whether it was cited by Lord Low—a woman in a privately funded care home said, I think, that people should have the right to die. The providers of the care home did not like what she had said. The woman had not said that she was going to do it and neither was she encouraging others to do so, but the providers asked her to leave. She had no recourse to that. She was not able to say, “That was my freedom of expression about my view on a particular issue”. When this episode was cited in the other place, it was given as an example of why freedom of expression should be there for people under the Human Rights Act. The woman was not able to say that to the private provider and she was told to leave the home.

I will go through some of the arguments that the Government have made against the clause. With respect to the Minister, they have changed slightly over the course of the Bill’s progress. The first—I believe this was part of the Department of Health’s response to the Joint Committee on the draft Bill—was that the clause was not needed. They said that the providers of publicly arranged home care services should consider themselves already bound by the Human Rights Act.

That argument is slightly different from that made by the Minister, who said that private providers, whether they are home care or residential care services, should not be bound by the Act.

Norman Lamb (Liberal Democrat, North Norfolk)

Will the shadow Minister give way?

Liz Kendall (Labour, Leicester West)

If the Minister will bear with me until the end of my point, I will give way. He said that private providers should not be included, but, as I understand it, the Department of Health’s response to the draft Committee was that private providers of publicly arranged care, whether they are home or residential services, should consider themselves already bound by the Human Rights Act.

The Equality and Human Rights Commission disagrees with the Government’s legal analysis, as does the Joint Committee on the draft Bill, which said that,

“as a result of the decision in the YL case, statutory provision is required to ensure this.”

A number of leading peers who spoke in favour of Lord Low’s amendments on Report also disagree. Lord Mackay, who, as hon. Members know, is a former Lord Chancellor, said that

“an amendment was made to the 2008 Act which did not extend to regulated home care services, so there is a gap”.

Lord Hope, who, as hon. Members know, is a recently retired deputy president of the Supreme Court, said:

“Comments of the kind that were made, that people should consider themselves bound by a convention right, however well intentioned, do not have the force of the law … they leave the law in a state of uncertainty because they do not have the force of the law, and they have no relevance to a decision that the court would have to take.”[Official Report, House of Lords, 16 October 2013; Vol. 748, c. 549.]

All these bodies disagree with the Department of Health’s first argument, which is that the clause is not needed because private, home and residential care providers should already consider themselves subject to the Human Rights Act

Norman Lamb (Liberal Democrat, North Norfolk)

The argument about considering themselves covered relates to providers of publicly-funded, non-residential care. The shadow Minister dealt with this issue earlier in her speech. It does not relate to the argument about the care given by an entirely private provider to an individual who pays for it themselves. The Department has never argued that such providers should consider themselves bound, for the very reasons I have explained. It is completely inappropriate to use the human rights legislation to intervene in entirely private relationships between individuals.

Liz Kendall (Labour, Leicester West)

Does the Minister think that publicly arranged care services should be subject to the Human Rights Act? There are two different issues: one is that of entirely private care, and the other is that of publicly arranged but privately funded care. The reason why there is such a wealth of support behind clause 48 is that it ensures that publicly arranged but privately funded home and residential care services should come under the Human Rights Act.

Norman Lamb (Liberal Democrat, North Norfolk)

The individual in those circumstances can, potentially, make a claim against the public body that arranged the service. The public body—the local authority—is covered by the Human Rights Act. That seems to be the appropriate body to which legislative protection should be attached, and not the private contract between two individuals, even if it has been arranged by a public body.

Liz Kendall (Labour, Leicester West)

Various Members of the House of Lords and the EHCR do not agree with that analysis. Even though the Department of Health asserts that publicly arranged but privately funded providers come under the Human Rights Act, they say that that is not clear from the case of YL v. Birmingham city council. They say there is uncertainty in the law because of that decision. There is a gap and that is why it must be covered.

There are two separate issues: one concerns purely privately arranged and purely privately funded care, and the other concerns those who have publicly arranged but privately funded services, which is why many of the organisations believe it is so important. More and more people are likely to have their care publicly arranged because of the increase in the means test, which we discussed earlier. More and more people are likely to have their care publicly arranged even if it is privately funded because of the other changes in the Bill.

Norman Lamb (Liberal Democrat, North Norfolk)

The shadow Minister is right. That could well be the case. But does she really believe that the Human Rights Act and the convention behind it should apply in those cases that have not been publicly arranged, such as where the hon. Member’s mum, of her own volition, goes to a care home and enters a contract for the provision of care? Is she really saying that the Human Rights Act should apply in those private contracts? The Labour Government chose not to do that.

Liz Kendall (Labour, Leicester West)

I shall say what I suspect many hon. Members would expect me to say, which is to highlight the views of organisations that represent older people. Caroline Abrahams, the charity director of Age UK, says:

“175,000 older people in independent care homes pay for their own care in this country and it is appalling that they are second class citizens when it comes to the legal remedies available to them if they are abused or neglected.

The House of Lords made the right decision when they decided to amend the Care Bill by closing the loophole once and for all”.

I want to move on to the third argument against clause 48—the Minister has touched on this—which is that regulating the work of the CQC is a better way to target specific issues of human rights abuses. I understand that the CQC is under a duty to have due regard to protect the human rights of people using care services in performing its functions, which include inspecting all care homes and registered home care providers. However, the question that many organisations are asking is: why should people in publicly arranged but privately funded social care have any fewer rights than those in publicly funded care? They should have a clear and direct legal route and remedies with which to challenge providers, rather than having to wait for a CQC inspection, report, review or action plan.

Norman Lamb (Liberal Democrat, North Norfolk)

Will the hon. Lady give way?

Liz Kendall (Labour, Leicester West)

Let me finish this final point about the arguments against the clause. A lot of arguments have been made to say that clause 48 would risk the provisions and the human rights protection extended to other sectors. However, clause 48 is targeted specifically on regulated social care providers. This point was repeatedly made in the House of Lords debate. Lord Low tried to be extremely specific in targeting this clause on social care, so that there was not a risk that it would be extended to all manner of other services.

I have never been in favour of slippery-slope-type arguments. Sometimes it is an easy get-out: “You have done this and it will inevitably lead to x, y, z and so on”. The Government are in danger of making that argument. Clause 48 is specifically targeted and focused.

Norman Lamb rose—

The Parliamentary Under-Secretary of State for Health (Dr Daniel Poulter) rose—

Liz Kendall (Labour, Leicester West)

I do not know whether to give way to the Health Minister or the care Minister at this stage. I will give it a whirl: Dan first.

Norman Lamb (Liberal Democrat, North Norfolk)

That is not parliamentary language.

Liz Kendall (Labour, Leicester West)

I am sorry; Mr Poulter—Dr Poulter.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I just wanted to tease out a little what the hon. Lady is saying. Does she not accept that when someone is publicly funded and has a publicly provided service, somewhat less choice may be involved? However, someone who privately funds their own care and chooses to go to a publicly provided service could have recourse to an immediate remedy if they are not happy with that service and choose to move away from it. So there is a clear distinction in the way that the process works. A choice can be made on whether or not to enter into and continue contracts. That is something that I think the hon. Lady has not addressed.

Liz Kendall (Labour, Leicester West)

I would just say to the Health Minister that it can be very tough for people to leave their own home and go into a care home—whether it is publicly or privately funded. I do not quite get what the Minister is saying. It is not easy just to say, “I don’t like what they are doing; I’m moving elsewhere.”

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

If it becomes a human rights issue, then of course a person is unhappy with the care being provided. Fundamentally, if they consider it to be a human rights issue—which it could be—they are making a statement that they are unhappy with the care provided. Therefore, they would want to be moved from the home because it is, in theory, breaking their human rights. So I do not think that the hon. Lady’s argument stacks up at all.

Liz Kendall (Labour, Leicester West)

It is not that easy to move in and then move out of a care home. I will say no more than that.

Norman Lamb (Liberal Democrat, North Norfolk)

The shadow Minister, in what she was reading—I am not sure whether it was a quote or her speech, so forgive me—correctly made the point that individuals must be able to have the right to seek a remedy without having to wait for the Care Quality Commission to act. The point is that they do. This is the really important point. They have rights in contract. Every individual who is in a care home that they pay for privately enters a contract. They have rights under the contract to pursue claims for compensation. Is the hon. Lady aware that the compensation rights under the Human Rights Act 1998 are almost always very limited? So those people have more rights to pursue the very remedy that she is after through the court, either in contract or in tort. I can reassure her over her concern about the lack of a right, because there is one for them to pursue.

Liz Kendall (Labour, Leicester West)

I am actually making a different point. All the organisations that I have cited are concerned about a matter that they believe is wrong in principle, about people in privately funded homes, including placements that are publicly arranged. I do not think that the Minister has responded to that point. He made a point about privately funded and privately arranged circumstances. However, he has not covered the really important issue of people who have privately funded but publicly arranged home or residential care. There is clearly a loophole in that area that needs to be closed.

This is about people having equal rights under the law, whether they pay privately, or are funded publicly or by the third sector. I am sure that other hon. Members will want to add to the debate, which is a complicated one. I am doing my best to set out the advice that we and many other hon. Members have received in briefings on the different legal issues. In their joint briefing, Age UK, Scope, the Law Society, Liberty and others rightly say:

“We fully accept that bringing all regulated social care services within the scope of section 6 of the Human Rights Act will not alone solve the problems of undignified care and human rights abuses in care settings.”

They are clearly not saying, “This is the solution.” That is what the Minister hinted at in his speech. They are explicitly saying that clarity is needed in the direct application of the HRA across all care services to ensure that people’s rights are protected.

Norman Lamb (Liberal Democrat, North Norfolk)

I just want to be clear that we can have the discussion about the hon. Lady’s Government’s extension of the Human Rights Act to residential settings funded by the state, but not to publicly funded domiciliary care. However, my big worry about the clause is that it goes well beyond that and deals with those entirely private arrangements. That is where I suspect the hon. Lady is with me. When there has been no arrangement, no funding, it is an entirely private arrangement. That is where I suspect that we are in agreement if she is completely honest with herself. I would end by saying—

Liz Kendall (Labour, Leicester West)

You are not ending; you are intervening.

Norman Lamb (Liberal Democrat, North Norfolk)

I am ending my intervention by saying that we consider that everyone should be treated as though they were covered, whatever the setting, in terms of the standards that we expect. That is how the CQC exercises its function, so that everyone is treated in exactly the same way. I apologise for the length of my intervention.

Hugh Bayley (Labour, York Central)

Order. Interventions should be short. Of course, the Minister will have the right to speak again in the debate when he replies at the end if he so wishes.

Liz Kendall (Labour, Leicester West)

I was not quite sure what the intervention was. When the Minister replies at the end of the debate, I hope that he will say whether he agrees with the huge weight of evidence that publicly arranged but privately funded care does not come under the Human Rights Act because of this loophole, which many organisations say needs closing. The Minister has not answered that specific point, which I am particularly concerned about.

I am sure that there will be many complicated discussions about this both in Committee and on the Floor of the House. I am not a lawyer of any kind, let alone a human rights lawyer. I simply cite those organisations, Members of the House of Lords, the Equality and Human Rights Commission and others, all of whom disagree with the Minister—passionate, informed, experienced and caring though he is.

Norman Lamb (Liberal Democrat, North Norfolk)

Can I quote the shadow Minister in “Focus”?

Liz Kendall (Labour, Leicester West)

On the LibDemFocus website? No. [ Interruption. ] Perhaps I was slightly over-generous in giving way.

Those organisations have all disagreed with the Minister’s arguments. I am sure that hon. Members will listen more to those voices than to mine. As the debate carries on, I hope that the Minister will come back on the specific, narrow point about publically arranged, privately funded home care services not coming under the Human Rights Act and on whether he agrees that that loophole needs to be closed. For the record, the Minister cannot use the quote on LibDemFocus.

Hugh Bayley (Labour, York Central)

Order. We are not debating political party leaflets. Quite a number of Members are trying to catch my eye. I call Paul Burstow.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I echo the comments about the Minister’s passion, about him being informed and certainly about him being caring. I hope that I might prevail on him to reflect further as we go into the debate. I want to speak because part of the reason for this debate is that an amendment moved in the other place gave life to a recommendation of the Joint Committee. I feel duty bound—more than duty bound, in fact—to express support for my Committee’s recommendation and to explain to the Minister and this Committee why the clause should stand part of the Bill. I want to talk about the points that the Minister made in opening and to say a little about why we are discussing the provision.

The Minister talked about how we should place ourselves into the minds of the convention framers to understand how they saw the world when they drafted the original convention on which our human rights are based. That is difficult to do, but I suspect that the eyes that they were looking through inevitably saw a world rather different from the one that we are in today. In that sense, it is incumbent on legislators to be always mindful of how those universal and fundamental human rights are interpreted in day-to-day life. In that context, there is a case for at least debating this issue, which the state clearly views as something that it has a legitimate interest in regulating—it regulates who provides and how the provision is supplied. It will go further in the future with the fundamental standards.

The state is involved in the private relationships that the Minister talked about. As he asserted, the Care Quality Commission will continue to have duties under the 1998 Act anyway. If a person is lucky enough to cross the threshold of a care home as someone whose case has been arranged by the local authority, when they cross that threshold, their Human Rights Act obligations and ability to seek redress though the Act remain intact. I know that the Minister will come back to me on that point in a minute. A person’s obligations and ability to seek redress dissolve if they have arranged the care themselves. That raises questions that I want to put to the Minister in a moment. The Bill moves things on; it evolves the context in which the individual relates to care that the state is funding.

As the Minister said earlier, we need to be careful that there are no unintended consequences in how the law is interpreted. The Human Rights Act is not just about safeguarding. It is not just negative, but contains positive obligations as well. Without the clause, the law, in my mind and in the minds of the Joint Committee and the many organisations that the shadow Minister talked about, is confused. If we return to situation before the clause was added to the Bill—the position extant in the law at the moment—we will have a dog’s breakfast, with only parts of the problems fixed. We will have a partial fix of section 145 of the Health and Social Care Act 2008, but it will leave uncovered domiciliary care arranged and paid for by the state and some types of residential and nursing care arranged and paid for by the state. That is an odd, messy set of circumstances.

Daniel Poulter (Conservative, Central Suffolk and North Ipswich)

I pay tribute to my right hon. Friend for the excellent work that his Committee did in scrutinising the draft Bill. He has made some excellent points in teasing out the issues, but on the principles of the Human Rights Act and dealing with the overbearing state, does he not agree that while an individual with private funding has the choice of state and private providers, the relationship is different for those who are funded publicly because they have less choice, perhaps only through publicly provided services? The only option being the state is a different set of circumstances from someone who can choose between the private sector and the state.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I am grateful for the question, but my answer is no, because, once the legislation is enacted, we will have included a personal budget mechanism and clarified the rights in respect of direct payments. A citizen may, therefore, have a relationship with a local authority, but that local authority gives the money to them to make their own decisions about purchasing care. Indeed, my question to the Minister is: does that person, given the state’s money through a state process, still enjoy the protection of the Human Rights Act? Unless we have the clarification that the clause provides, that question may be opened up. That is why it is important. I regret that we do not have the benefit of knowing what the Government intend to put in its place, as in that context we could have made more progress.

Norman Lamb (Liberal Democrat, North Norfolk)

I understand my right hon. Friend’s argument about the mismatch in the law as it stands, with those in care homes being publicly funded being covered but those in domiciliary care that is publicly funded falling outside. We can continue that discussion, but, if he is honest, does he not feel a touch uncomfortable about not those categories but the entirely private arrangement between a citizen in Sutton and a private care home, with no public money or state involvement, being covered by the clause? As my hon. Friend the other Minister—if that is the right way to describe him—said, that individual and family ultimately have the power to move if they feel that their rights are being undermined in some way.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

The other Minister sounds like a good title for a drama—perhaps we can dwell on that at some point. In answer to the Minister, that invites a question I had in mind to come to later. The Bill provides for an individual citizen to ask the local authority to arrange their care. In those circumstances, the state has taken on a responsibility to arrange the care, so does the Human Rights Act apply? Was that a public function? We need to know, to avoid the potential for confusion and misunderstanding in the future.

There is the scenario where someone has gone to the local authority and registered their interest in being metered towards the cap. We can debate whether “the cap” is the appropriate name, but that is what we are trying to achieve: a fair allocation of public resources. In that scenario, someone will spend a period of time in a care home not covered by the Human Rights Act, but, when they reach that magic number, the Act will suddenly apply to them. Will they not find that slightly curious and will not the person in the room next to them find it even odder that they have longer to wait?

Norman Lamb (Liberal Democrat, North Norfolk)

I would be with my right hon. Friend if we were talking about a substantive difference of rights between two individuals in a care home—or in any other setting—with a private citizen having fewer rights than the other individual because of their funding. However, he is enthusiastic about all the steps that this Government are taking through the Bill to improve protection and ensure that everyone has the same level of protection—the measures on the prosecution of corporate providers that fail to provide good standards of care, the rating of care homes, and other powers of the CQC. Does he not think that it all becomes a bit of a meaningless debate when we know that the difference in rights does not exist?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Reference has been made to the debate in the other place on the amendment that included the clause in the Bill. Lord Hope of Craighead’s first point was that

“Section 6(3)(b) of the Human Rights Act is one of the few provisions in what was an excellently drafted Act which, in my experience, judges have found rather difficult to apply in practice.”—[Official Report, House of Lords, 16 October 2013; Vol. 748, c. 548.]

For that very reason, it is right that we test the Government’s position—to destruction, if necessary—to ensure that when we come out of this Committee, report back to the House, and come out with an Act of Parliament, that Act is not the dog’s breakfast that is currently served up to the public, when it comes to understanding when the Human Rights Act applies in care.

I understand the Minister’s argument, but I will provide a real-life case where the clause would make a difference. Let us say that a private contract is entered into with a care home, someone moves into that home, and their relatives are rightly persistent in ensuring that their loved one—their mother or father—is receiving the care that they want. In a small minority of cases, the owner gets rather cheesed off with the relative who is pursuing them too vigorously, and decides that the best way to deal with that inconvenience is to ask the resident to move. In those circumstances, as we know, all too often, tenancy rights of residents in care homes are weaker than many other tenancy rights. It is easy for someone to be moved on in those circumstances.

The issue is the difference between a person who is covered by a local authority, for whom there will be additional protections, and an individual who relies on their own contractual arrangements. If they had the benefit of the Human Rights Act’s coverage as well, they would have a back-stop protection. That is why I think there is a debate to be had on the subject.

Norman Lamb (Liberal Democrat, North Norfolk)

Does my right hon. Friend not accept that the example he gave seems to be the only example that is ever given? There does not seem to be any other scenario in which the protection that is described as being of fundamental importance does something that no other provision allows for.

Even when we get to that one example, does my right hon. Friend not accept that there can only be mere speculation on what the outcome might be in a human rights case? There are balancing rights here; there are the rights of other residents, and the rights of the care home owner. Governments have been careful for a reason not to provide security of tenure to a care home resident. No Government have chosen to do that. At best, it is pure speculation. Is that not right?

Paul Burstow (Liberal Democrat, Sutton and Cheam)

I do not think it is right to say that it is pure speculation. It was an attempt to give life to otherwise abstruse and dry law. Often we are challenged to do that, and that is why I did it.

The Minister’s response to the shadow Minister about the role of the fundamental standards and the intention behind them, and how the Human Rights Act will project into the way in which they are drafted, was a helpful reassurance. I thank him for that, and I hope that there will be an opportunity for those of us who feel passionately on the issue to be involved in that, because we want to ensure that the standards are got right.

The Government told the Joint Committee that all providers of publicly arranged care and support, including private and voluntary sector providers, should consider themselves bound by the duty imposed by section 6 of the Human Rights Act. The question for those of us who want to see that work in practice is how the Government intend to proceed to ensure that the gaps that I have been describing—the fact that a wish cannot be checked and challenged in court—are properly addressed. In the debate on 16 October, the former Deputy President of the Supreme Court, Lord Hope, said that he was not persuaded by “well intentioned” words that

“could not be relied on…in a court.” —[Official Report, House of Lords, 16 October 2013; Vol. 748, c. 549.]

He said that there was therefore a need to legislate in this area.

Our solution, which may be overly simplistic from the Minister’s point of view, is to be clear and say that those who are regulated by the Care Quality Commission should be caught by the definition of a public function for human rights obligations. On the one hand, the Minister is telling us that that will have no effect, but on the other, he is telling us that it will set a huge precedent. If it will have no effect, how can the precedent be big?

Norman Lamb (Liberal Democrat, North Norfolk)

My right hon. Friend tempts me again, but I will keep my response brief. The point is precisely that the change would have no impact of value in the care settings, for reasons that I explained, and because of the steps that the Government are taking, but at the same time, it would encourage the argument that if the Human Rights Act applies in the entirely private relationship between an individual and a care home or domiciliary care provider, paid for privately, then it can apply in every other sphere of life. That is ridiculous.

Paul Burstow (Liberal Democrat, Sutton and Cheam)

Again, the former Deputy President of the Supreme Court, who has considered these matters for far longer than any of us has, tried to deal with that concern in the debate, which I am sure the Minister has read:

“I do not see that there is any real risk that, by dealing with the matter in the targeted way that the amendment of the noble Lord, Lord Low, seeks to do, it will be taken as a signal in the courts that there is some wider reach in Section 6(3)(b) from that which was being discussed in YL.”—[Official Report, House of Lords, 16 October 2013; Vol. 748, c. 550.]

YL is the case that we have been talking about. I understand the concern, but someone with form in this area who is held in some respect when it comes to interpreting the law seems to offer us a solution.

I have asked three questions. I hope that the Minister will tell us whether the Human Rights Act covers the situations that I set out; that would be useful to know. It would have been better if the Minister, rather than moving that the clause should not stand part of the Bill, had tabled an amendment in lieu of the clause, setting out what the Government intend to do. That is the only way the matter will be resolved in the House of Lords. If it is not resolved, all that will happen is that the House of Lords will put the clause back in. I hope the Minister understands that unless we have clarity about what the Government intend to do, the concerns that my cross-party Committee had will not be addressed, and I suspect that the Lords will keep returning to the matter until they are.

Jim Shannon (DUP, Strangford)

I do not doubt for one second the Minister’s sincerity. We are all impressed by his commitment and work. However, these issues have been brought to our attention by a number of organisations—Age UK, Mind, Disability Rights UK, the Alzheimer’s Society, and the group that they asked to work on their behalf, the Law Society. I want to build on the issues that the hon. Member for Leicester West and the right hon. Member for Sutton and Cheam raised. Although I will not speak in as much technical detail, I want to ask the Minister questions about what I feel is important.

The decision that private and third sector care home providers will not be directly bound by the Human Rights Act means that thousands of service users have no direct legal remedy that allows them to hold their providers to account for abuse, neglect or undignified treatment. Although the public commissioning service is bound by the Human Rights Act, that is of little practical value to individuals who are at the receiving end of poor or abusive treatment. The Law Society and the other organisations said that the current law does not give them protection. The right hon. Member for Sutton and Cheam and the hon. Member for Leicester West outlined that problem well. The organisations said that statutory provision was required, and they feel that they need to be reassured.

The hon. Member for Leicester West put her case and referred to a number of eminent lawyers; we are all aware of the comments that they made. Indeed, the House of Lords came up with the same assessment on Report: statutory provision is required. Perhaps the Minister will confirm that those people who are eligible for care, but who, owing to means-testing, have to arrange and/or pay for their own care—the self-funders—therefore lack full protection under the HRA.

Norman Lamb (Liberal Democrat, North Norfolk)

Does the hon. Gentleman not struggle a little with the concept of the private care home in his constituency being regarded under the clause as, in effect, a public body? How would the husband and wife, running that little care home with four residents, feel about being defined as a public body? Does he really think that that was part of the thinking behind the European convention on human rights, and indeed the Human Rights Act, when it was introduced by the previous Government?

Jim Shannon (DUP, Strangford)

I understand the point the Minister makes. We are discussing the whys and wherefores and how to take the matter forward. I am not a lawyer; I do not have the legal mind for such matters. Issues are brought to my attention by people who tell me their concerns, and I express those concerns on their behalf. I am duty-bound to do so.

To date, at least for people who are assessed as eligible for care in their own home, the local authority’s obligation to arrange care, regardless of the person’s resources, provides a degree of protection under the Human Rights Act. The local authority’s duties to arrange care are subject to the HRA, even though the provider might not be. The changes to the system for arranging care, to be introduced by the Bill, make the position less clear-cut. People who are entitled to local authority care in their own home, but have to pay for it, may no longer be automatically protected by the Human Rights Act unless they request that the local authority arranges their care. I fear that many will not make a request, as they will not be able to afford to pay for the cost of having the local authority arrange their care, on top of the cost of the care itself.

Some argue, as I think the Minister does, that further legislation is not necessary to protect people’s human rights, suggesting instead that regulation can be used to focus on specific issues. It is true that the CQC is under a duty to have due regard to the need to protect the human rights of those using care services when it performs its functions. However, I must respectfully point out that there are people who are vulnerable and outside the law, as we see it at the moment.

I fully accept that bringing all regulated social care services within the scope of the Human Rights Act will not alone solve the problems of undignified care and human rights abuses in care settings. Improved regulation, additional safeguarding legislation and better training must also play their part; I accept that. However, evidence continues to mount that shows that without the direct application of the Human Rights Act and a proactive approach to the promotion and protection of rights, abuse, neglect and undignified treatment are commonplace occurrences. If they continue to be so, we need legislation that addresses that.

Grahame Morris (Labour, Easington)

As has been indicated by members of the Committee, there was considerable support for the original clause 48, so I would like to speak against the Minister’s proposal to delete the clause. Eminent Lords in the other place introduced this clause into the Bill, and there was cross-party support. The Government now seek to take this clause out of the Bill. As we have heard, the clause clarifies that all social care providers—private as well as local authority—have duties under section 6 of the Human Rights Act. As the right hon. Member for Sutton and Cheam indicated, that approach was recommended by the Joint Committee that scrutinised the draft Care and Support Bill; it felt that that would provide equal protection for all users of social care, regardless of where that care was provided and who paid for it.

In relation to human rights and social care, the lack of clarity in the scope of the Human Rights Act arose in 2007, following the House of Lords decision. My hon. Friend the Member for Leicester, East—

Liz Kendall (Labour, Leicester West)

West.

Grahame Morris (Labour, Easington)

I apologise. Of course it is; it is far better in the west. She has already spoken about the test case of an 84-year-old woman suffering from Alzheimer’s who was placed in a home by Birmingham city council. I am not a lawyer, but I find it difficult to understand how the Law Lords concluded that a private care home providing residential care under contract to a local authority was not performing a public function, so its residents were excluded from protection under the Human Rights Act. It is clear in the Equality and Human Rights Commission’s legal analysis, which is based on advice from senior counsel, that as a result of this test case, home care services provided under contract to local authorities are also outside the scope of the Human Rights Act.

As my hon. Friend the Member for Leicester West said, an attempt was made by the previous Labour Government to close some of these loopholes. However, it was unsuccessful. The Minister has asked various Members whether they agree that we should close the loopholes: I think we should. It seems a perverse argument from a Liberal, just looking at the dreadful scandal of Winterbourne View and those extremely disadvantaged people, to say that those who are self-funders—as opposed to those who are funded by the state—should enjoy different protections under the Human Rights Act. The Minister asks what value it is and says—I paraphrase him—that the protection is minimal and there are other areas of redress. I want to come on to that.

There are some advantages here. If we retain clause 48 it will provide people who receive regulated home care—that is domiciliary care—with direct legal redress against their home care provider for any human rights abuses that are the provider’s responsibility. The clause would do more—I refer to the point made by the Minister earlier—than just provide a tokenistic legal entitlement that could be enforced in the courts. The point that was made to the Joint Committee—

Hugh Bayley (Labour, York Central)

Order. There is a Division in the House and I suspend the Committee’s deliberations for 15 minutes.

Grahame Morris (Labour, Easington)

I was trying to put forward a case as to why the Committee should seek to retain clause 48 in the Bill. I was also trying to address some of the issues that the care Minister raised. He suggested that somehow the protections afforded by the Human Rights Act should be understated or not be overvalued. However, there are some positive benefits to extending those protections.

As I was just saying, the clause would do more than provide a legal entitlement that could be enforced in the courts. In the analysis by the Equality and Human Rights Commission, which was commissioned by the Government, clarifying human rights in this way would also encourage providers to build a human rights approach into service delivery, helping to drive up standards in the care sector. That is a very laudable aim; if it is possible, we should use that mechanism.

The commission’s inquiry, “Close to home”, noted the potential value of the human rights approach to home care services by changing the culture of service delivery and supporting a personalised approach to care, including encouraging service users to complain if necessary, without fear of retribution.

We have been talking about the basis of the Bill, going back to the discussions we had about the power of well-being in clause 1 and how important it is to change the culture of organisations. The clause fits in with that general approach.

Several times the Minister has referred to unintended consequences, but the inquiry heard positive examples of provider organisations that build a human rights approach into their services. Indeed, independent evaluation and research has demonstrated the value of human rights in improving standards and delivering person-centred care.

Earlier in the debate, my hon. Friend the Member for Leicester West produced some figures. The figures for last year showed that 385,000 people aged 65 and over received home care in England, as did 100,000 people aged between 18 and 64. So we are discussing big numbers. Indeed, when we debated earlier clauses, we talked about problems associated with 15-minute visits. Only 9% of contact hours were provided directly by councils with responsibilities for adult social services. The majority of those home care visits were on the basis of an individual contract between the service user and the provider. By contrast, 91% of contact hours were provided by the independent sector, by which I mean both private and voluntary sector providers.

What does that mean? Because of the current loophole in the application of the Human Rights Act, it means that users of home care may be denied direct legal redress against the care provider for any human rights abuses. I have already referred to the EHRC inquiry into older people, and the EHRC mentions this issue in the report it published in November 2011.

The EHRC found evidence of serious systematic threats to the human rights of older people using home care services. Without giving too many examples, it might be instructive for the Minister and the Committee if I mentioned some. The inquiry concluded that about half of older people—remember the number I just quoted, which was about 350,000—were satisfied with the services they received. The EHRC noted that while there was some evidence of good practice by local authorities and other provider organisations, there was also evidence of human rights breaches. There were examples of older people receiving inadequate support with food and drink, leading to severe weight loss and dehydration. That is one of the causes of the increased attendance at accident and emergency units.

Some home care workers had an unfounded belief that health and safety restrictions prevented them from preparing hot meals, which meant their clients were left to heat up their own meals in the microwave. Although evidence of intentional physical abuse was relatively rare, several instances were reported. Some older people were neglected because care workers had been allocated insufficient time to complete everything that had been laid out in the care plan; that goes back to the point about 15-minute visits.

Problems also arose when workers under pressure carried out their tasks in a distracted and rushed way. A greater impact was reported for those with dementia. Some older people reported a lack of respect for personal privacy when intimate tasks were being carried out; a problem that was compounded by having a high turnover of care workers carrying out this intimate care.

Some older people had no control over the timing of their visits and there were examples of individuals having to stay in bed for long periods of time in soiled incontinence pads. In contrast to care packages for younger disabled adults, of which there are 100,000 in this category, older people’s care rarely includes social activities. The inquiry revealed a pervasive sense of isolation and loneliness among older people, especially those living alone.

In conclusion, it is essential that this clause remains in place to ensure—as I believe many members of the Committee would agree—that all users of regulated social care services, including services commissioned from private and third sector organisations, are protected by the Human Rights Act. The question is how we deliver this. The answer from noble Lords in the other place with a wealth of legal experience referred to by various hon. and right hon. Members, from all parts of the House of Lords, from the Joint Committee on the Care and Support Bill and from the Equality and Human Rights Commission, among others, is to let clause 48 stand part of the Bill.

Norman Lamb (Liberal Democrat, North Norfolk)

It has been a genuinely thoughtful debate. All those who have spoken agree entirely on what we are trying to achieve: we have been debating the means by which we achieve those objectives.

I will make some quick points, because we have spent a lot of time on this issue. First, I remind hon. Members, and my right hon. Friend the Member for Sutton and Cheam, of Mid-Staffordshire hospital. Did absolute protection under the Human Rights Act stop any abuse or neglect? Absolutely not—it achieved nothing. As I said in my opening speech, it feels as if this is a sticking plaster because of other failures in the care system. I think that the package of measures that we are taking through this Bill and in other routes achieve those real objectives.

Jim Shannon (DUP, Strangford)

All hon. Members who have spoken on this matter have put forward representations from individual groups and organisations—the hon. Member for Easington dwelt on that as well. Has the Department had any opportunity to speak to those organisations to assure or convince them or hear their side of the story? They are telling us that they are not satisfied. I wonder whether the Minister has picked up on that himself.

Norman Lamb (Liberal Democrat, North Norfolk)

As I have said a few times during the debates on this Bill in Committee, there has been the most extraordinary collaboration throughout the preparation of the draft Bill and the debate on it when it was in the other place. The Department’s door has been constantly open to any organisation. This and other issues have been debated a lot during this period.

I am with those organisations in what they are seeking to achieve. I genuinely believe that this is ultimately tokenistic because I do not think that it makes a substantive difference to the rights that individuals have. I pointed out earlier the other steps that we are taking. The establishment in statute of adult safeguarding boards, something that has been widely welcomed and supported by the shadow Minister, the new, much tougher CQC inspections with a chief inspector of social care and a chief inspector of hospitals, and the corporate accountability that we are bringing in with the fundamental standards of care, all provide real protection for individuals in a way that I do not think the Human Rights Act would achieve, with the best will in the world.

As an additional assurance, however, I have made clear—and I think this reassured my right hon. Friend the Member for Sutton and Cheam to a degree—that the Care Quality Commission will go about its work with the new fundamental standards, in a sense applying the principles of the Human Rights Act to ensure that everybody gets treated in a way that respects their human rights. That is absolutely what we are all after and that is perhaps an important reassurance.

The shadow Minister expressed the concern that people will want a route to a remedy without having to wait for the Care Quality Commission. People who have private arrangements, who enter a contract with a care provider, have rights under that contract to pursue a remedy without having to rely on the Care Quality Commission to do so. Interestingly, and why there is a sort of balance of rights with the publicly arranged service for an individual, where the local authority funds the care of an individual in a care home, the contract is likely to be between the local authority and the care provider, so that the individual citizen does not, in that circumstance, have rights under a contract. The Human Rights Act could potentially provide some support and protection for that individual, but that is not the case in an entirely private arrangement, because they have rights under the contract which the publicly funded citizen does not have.

Liz Kendall (Labour, Leicester West)

Can the Minister explain how that is supposed to work for domiciliary care? That is a point that everybody here has raised. The discrepancy is that there is some protection for those in residential care under the Human Rights Act, but not in either publicly arranged or publicly funded home care—domiciliary care—services provided in the third and independent sector.

The rest of the debate is in Hansard.