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Personal Care at Home Bill

I congratulate my hon. Friend the Member for Eddisbury (Mr. O'Brien) on tabling the amendments and again on the way in which he spoke to them. Both amendments are hugely important. Amendment 31 deals with the European convention on human rights. My hon. Friend should be specifically congratulated on reminding the House that the modern world is increasingly one in which the untrammelled right of law-makers to make laws that seem like a good idea on their way to the party conference podium is qualified by a series of commitments that Governments have entered into over the years to ensure that the laws of this country comply with certain basic principles. For our present purpose, the principles are set out in the European convention on human rights. According to one of them—acknowledged in the explanatory notes—it is not consistent with the convention, and therefore with good law, to discriminate between individuals on the basis of where they live. First, the Government acknowledge that that is a principle of good law because it is in the convention, to which this country is a signatory. Secondly, the explanatory notes explicitly recognise that an individual in residential care""might allege that they are being discriminated against in the protection of their rights under Article 14 ECHR"." This is not something dreamt up by my hon. Friend; it is something that the Government recognise as a potential weakness in the Bill. What is the Government's defence? According to the explanatory notes,""the Department's view is that the different treatment"—" Members should note that it is acknowledged to be different treatment—""of people living at home is not discriminatory. This is because the policy underlying the different treatment pursues a legitimate aim in a proportionate way."" I do not follow those two sentences. The explanatory notes state that the Department's view is that the different treatment is not discriminatory, and then state that it is discriminatory, but that the discrimination is justified""because the policy underlying the different treatment pursues a legitimate aim in a proportionate way."" Having acknowledged that the treatment is discriminatory, the Government then say that the discrimination, despite being contrary to the ECHR, is justified because in the Department's view, or more precisely the view of the Prime Minister—I do not believe for a moment that the policy had its origins in the Department—""the different treatment pursues a legitimate aim in a proportionate way."" Let us consider what is the "legitimate aim", and whether it is, in truth, proportionate. According to paragraph 23 of the explanatory notes:""The key aim…is to enable, support and encourage more people to avoid or delay entering residential accommodation."" That is set out as the objective of the policy. Let us now consider how effective, according to the impact assessment, that policy will be. According to the assessment, the Government believe that 2,000 of the 277,000 people affected will switch from residential care to care at home as a result of a policy whose purpose is""to enable, support and encourage more people to avoid or delay entering residential accommodation."" The Government's proposition is that they want to delay people's entry into residential care. Their own assessment of the effectiveness of that policy is that it will stop 2,000 people entering residential care. The question for the Committee and, I suppose, ultimately for the European Court is whether the Department is right in saying that that is proportionate. What the Department is doing is violating rights under article 14. The Government cannot argue that they are not violating those rights. Indeed, they have acknowledged that they are doing so, but claim that that is justified by the policy objective, which they describe as proportionate. When the policy objective is measured for its effectiveness, it is shown to involve 2,000 people. The rights of all the other people in residential care—there used to be roughly 500,000, and I would guess that the figure is still the same—are being violated. Those people are being discriminated against so that 2,000 people—according to the Government's own assessment—can be prevented from entering residential care. I invite the Committee to reflect on whether the defence of the policy set out in the explanatory notes stands up. My hon. Friend has already given his assessment of the two pages in which the Government have set out their position, which might be described as "Methinks they do protest too much." The Government have acknowledged a violation of rights, and have justified it on the grounds of the delivery of a specific policy—the policy being that 2,000 people's care arrangements will be changed, but the rights of 500,000 will be violated so that those 2,000 can benefit from the Government's policy change.