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Glenys Thornton on a government Bill with implications for the human rights of people in care

Today in the House of Lords, we have the Second Reading of the government’s Mental Capacity (Amendment) Bill which seeks to amend the Mental Capacity Act to replace a framework known as the Deprivation of Liberty safeguards (DoLs). A framework that impacts on those who lack the mental capacity to consent to their caring arrangements, whether in hospital, a care home or another setting.

DoLs have been widely criticised as excessively bureaucratic and costly, while at the same time offering inadequate protection of human rights. Following the Supreme Court’s ruling on Cheshire West and Chester Council, a broader definition of ‘deprivation of liberty’ came into force. There are now over 230,000 DoLs applications in England and Wales each year, leading the Joint Committee on Human Rights (JCHR) to express concern that local authorities are ‘having to work out how best to break the law.’ And then there is the almost £2.2bn a year impact on the public purse – 2% of the NHS budget.

With serious criticism of DoLs made across Parliament, a wide consultation by the Law Commission between 2015 and 2017 led to the recommendation of a new framework called Liberty Protection Safeguards (LPS). This offered a more flexible and less bureaucratic means of authorising deprivation of liberty, channelling resources into situations where there are conflicts or concerns about care arrangements. It also included proposed amendments to the Mental Capacity Act’s ‘best interests’ test and promoted supported decision-making to bring it closer to the requirements of the UN Convention on the Rights of Persons with Disabilities (CRPD).

Having appeared to endorse most of the Law Commission proposals (including the name of the scheme), the government’s Bill has removed many of the important safeguards suggested. There are therefore, serious questions about whether it will do the job it sets out to or move the UK further away from compliance with the CRPD. That could have major implications for the human rights of hundreds of thousands of people with dementia, learning disabilities, brain injury and mental health problems. And none of this is helped by the current lack of an Equality Impact Assessment alongside the Bill. 

One of the most significant proposals is that care homes assume major new responsibilities for undertaking or coordinating assessments, and then providing information about residents who may lack mental capacity to statutory bodies. One local authority DoLs coordinator has told me: “I receive application forms from care homes, train care home staff and give advice about DoLS and MCA [Mental Capacity Act] issues. Based on these experiences, I have concerns that at present, despite honourable exceptions, care home staff do not routinely have the knowledge and skills to assess mental capacity and consider whether restrictions are proportionate.”

In other words, Ministers are putting at risk the whole DoLs process and the safeness of the decisions. That raises the suspicion that the government would simply like to transfer the burden, backlog and chaos of DoLs from statutory bodies to an unprepared frontline. Something that could see a further undermining of residents' rights, additional staffing in what is a heavily under resourced sector, and new forms of legal liability. Not to mention a huge human cost in suffering and anxiety.

This is a small Bill but one that may have enormous consequences, and therefore demands proper parliamentary scrutiny – and where necessary amendments that will make it fit for purpose on its own terms. Anything short of this will be selling short the human rights of many thousands of vulnerable people in our country.

Baroness Glenys Thornton is Shadow Health Minister in the House of Lords. She tweets @GlenysThornton

Published 16th July 2018

Thinking it through

Glenys Thornton on a government Bill with implications for the human rights of people in care


Doreen Massey on government cluelessness on the impact of cuts to early years services

Sure Start centres were set up as a Labour flagship programme under the late Tessa Jowell to support young children and their families, in order to provide a good basis for educational and social outcomes. They were developed in deprived areas and then rolled out to deliver play sessions, parenting support and help advise on education, health and employment. They mirrored the concept that a positive early years’ experience is vital to a healthy and happy childhood and to cognitive development.

Parents have variously described the centres as a “lifeline”, reducing isolation and giving practical advice. They were within “pram pushing distance” and served local communities. Many evaluations of effectiveness have shown the centres to have improved home learning environments via baby health programmes and child play services. Parent support programmes and social development initiatives have also been shown to be effective.

Despite positive outcomes and support from communities, Sure Start centres have suffered closures. As a Sutton Trust report shows, up to 1,000 have closed since 2009. Others have had a name change and are now called ‘hubs’, with Oxfordshire for example last year setting up 19 of the latter to replace the previous 44 centres. 

Other local authorities are proposing similar measures but such hubs are often not within ‘pram pushing’ distance. And these do not always just serve children and families, as they extend to other social services. They are also not necessarily open for the long periods which previous centres were. As there is no evidence to suggest that this reconfiguration of the centres provides better services, how can Ministers ensure good provision for young children in this mixed delivery of services?

When Sure Start centres were established, Ofsted inspected service quality and outcomes for young people, encouraging high quality provision and meeting diverse needs. Statutory guidance issued in 2013 recognised the importance of quality in improving outcomes for children and identified inspection as vitally importance to accountability. In 2015, the Department for Education announced that a new cycle of inspections should not begin as changes to existing arrangements were likely to be made.

A consultation on the future of children’s centres was announced but the date of this consultation has not yet been announced and inspections are on hold. Around 1,000 centres have not been inspected for over five years. So how can the government identify and encourage shared good practice? More importantly, how will it know how, indeed if, those most in need are being served?

Cuts to council budgets have hit many authorities hard. In the subsequent balancing of priorities, children’s services are suffering. So too are those vital experiences which contribute to social mobility.

Ministers say they are serious about improving life chances, particularly of children from deprived areas. But the opportunities to both help families become more stable and develop young children’s social, emotional and intellectual development have been reduced. Something made worse by the fact that the government is clueless over how, and to what standards, services are being delivered.

Baroness Doreen Massey of Darwen is a Labour Peer

Published 11th July 2018

An unsure footing

Doreen Massey on government cluelessness on the impact of cuts to early years services


Angela Smith speech in the House of Lords, Monday 9th July 2018

My Lords, Harold Wilson reportedly remarked that ‘a week is a long time in politics’. How the Prime Minister must wish that were true.

Picture the scene on Saturday afternoon. Having achieved an agreement at Chequers, the Prime Minister can enjoy the fine weather and positive mood sweeping the nation:

  • England have booked their place in the World Cup Semi Finals;
  • Lewis Hamilton has qualified on pole for the British Grand Prix;
  • A plucky Kyle Edmund takes the lead – albeit temporarily – at Wimbledon.

All is well. This is the high-point of Theresa May’s premiership. Yet, fast forward to Sunday evening when David Davis informs the Prime Minister that he is now “unpersuaded” by the Chequers position and is unwilling to play the role of a “reluctant conscript”. He resigns. Steve Baker follows.

And just in case there was any doubt as to the dissatisfaction in the Brexiteer camp, Boris Johnson has also, after getting others to test the water first, taken the apparently ‘principled’ decision to resign.

With just 264 days until we leave the EU, we have a brand new Brexit Secretary and will soon have a new Foreign Secretary.

David Cameron as Prime Minister was so sure that he would get his own way in the referendum that he did not even plan for a ‘Leave’ vote.  That my Lords was arrogant and irresponsible.

Theresa May as Prime Minister, confident that she had a plan, promised the country “strong and stable government in the national interest” in an unnecessary general election.

And we’re being asked to believe that Government is delivering a “smooth and orderly Brexit”, even though no one can agree what this means, and nobody believes it.

Following the June summit, the President of the European Council issued a “last call” to the UK, pleading for progress to be made ahead of the October summit.

Last Friday – 464 days after the triggering of Article 50 – the Cabinet met, debated, and apparently reached a decision. For a brief moment in time, the Cabinet was united. There was radio silence from the usual suspects. And now we have chaos at the heart of Government, when we most need stability.

There are rumours of letters being submitted to the 1922 Committee. One Conservative MP dared to declare: “I think Theresa May’s premiership is over.”  Far from offering answers, this melodrama only raises questions.

Luckily for YLH, the Noble Lady, the Leader, was at Chequers and the Cabinet meeting. I wonder whether she could comment on reports that the advice of the Commons Chief Whip, was that the Cabinet had to back this facilitated customs arrangement as a so called compromise, otherwise MPs would vote to stay in a Customs Union? 

Also, after spending the day with the Mr Davis and the Mr Johnson did she get any inkling of the dramas about to unfold?  Was the PM right to be so confident that she had convinced them, brought them with her and won the day?

My Lords, the Government’s plan is not the one that would’ve been adopted by Labour – not least because it includes no real plan for services, which account for almost 80% of our economy. But with only six weeks of negotiations before the October summit, there is at least now a proposal on the table. It isn’t quite what the Prime Minister presented at Lancaster House, or Mansion House. And it will not be clear what the EU27 make of the offer until a White Paper is published later this week.

EU diplomats are displaying a level of discipline that would baffle some in the Cabinet. Reinforcing the view that this was more about the Conservative Party than the national interest, the Environment Secretary acknowledged yesterday that the agreed position amounts to a fudge – in part because of party divisions, but also due to parliamentary arithmetic.

Having tried different versions of Brexit on for size, the Cabinet has chosen one which is a soft shade of pink:

  • The UK will leave the Single Market, but continue to maintain a common rulebook for goods;
  • The jurisdiction of the European Court will come to an end, but UK courts will be bound to have due regard of future rulings;
  • The UK will no longer allow free movement, but will offer a ‘mobility framework’ that allows continued travel, study and work in each other’s territories.

While this blurring of the red lines suggests a recognition of the political and economic reality, can the agreement really be said to amount to a “substantial evolution” in the Government’s thinking? My Lords, it seems not.

Instead of combining elements of two customs plans already rejected by the EU27, surely a better approach would have been to propose a formal customs union with the EU – a position supported by business organisations and trade unions.

While some argue that a UK-EU customs union would prevent us striking new trade deals, it is worth noting that while the Cabinet was locked away, the EU announced it will sign its new agreement with Japan on Wednesday. A reminder that while this Government is consumed by Brexit, the EU just carries on.

Could the Noble Lady, the Leader of the House, indicate whether the Government will seek to be a party to the EU-Japan trade agreement after Brexit? Or does HMG really plan to turn its back on all existing agreements after the transition period, in order to pursue participation in the as yet unratified Comprehensive and Progressive Agreement for Trans-Pacific Partnership.

Over the weekend, it was suggested that the new ‘mobility framework’ may allow for the preferential treatment of EU migrants. The Prime Minister refused to rule this out, but the Leader of the Commons said on the Daily Politics that “there will be no special favours for EU citizens”. Can the Noble Lady, the Leader of the House, provide clarity on this specific point? 

My Lords, I want to ask about the area that most concerned David Davis, albeit for very different reasons. Paragraph 6(f) of the Government’s statement from Chequers asserts that Parliament will have a lock on incorporating future EU rules into the UK legal order, meaning that “choosing not to pass the relevant legislation would lead to consequences for market access, security cooperation or the frictionless border.”

Does this mean that each and every individual EU regulation would require the consideration of both Houses? If so, has the Government estimated how much parliamentary time this would require each year?

Would this proposal, if accepted by the EU27, amount to a Swiss-style sector-by-sector agreement whereby, for example, the UK’s failure to implement a measure on car safety may lead to the loss of market access to that sector, and therefore the imposition of tariffs?

So where does that leave companies such as Jaguar Land Rover who have already expressed their concerns?

And how can the Government avoid implementing the Northern Ireland ‘backstop’ if the EU27 cannot be sure that the UK will honour its commitments?

My Lords, although the Chequers proposal may offer more clarity on the Government’s thinking, it is no more coherent than previous Brexit plans.

Whether you voted Leave or Remain, confidence in the Government’s management of Brexit is at an all-time low. And, as a result, faith in politics is seriously undermined. Luckily, the Cabinet will meet again tomorrow. There will even be a new face or two – or perhaps more – around the table.

Can I therefore echo the thoughts of the NL, Lord Finkelstein, in his excellent article in The Times newspaper, who urged Theresa May to follow the example of Robert Peel by putting the national interest ahead of her own party.


Baroness Angela Smith of Basildon is Shadow Leader of the House of Lords. She tweets @LadyBasildon

Speech in response to PM statement on Brexit Cabinet meeting at Chequers

Angela Smith speech in the House of Lords, Monday 9th July 2018

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