MONDAY 12 NOVEMBER 2007

MR IVAN LEWIS AND MRS ANNE MCGUIRE

  Q180  Lord Judd: Chairman, as this is my swansong may I just be allowed one comment? Having spent a great deal of my life in the voluntary sector, there have been several points in the last hour when I have wanted just to yell, "Hallelujah! Ivan will save", (and Anne as well), because it does seem to me that if the voluntary sector is about anything it is about vision, it is about risk-taking, it is about initiation, it is about challenging. I am, however, a little bit worried about the culture of crisis in the voluntary sector as a sub-contracting culture begins to take over, as just deliverers of the services, as they are, fostered sometimes from others of your colleagues saying, "This will be a cheaper way of doing it". I want to ask you a very specific question. You have been making very clear that a lot of the work being done in this area is being done by the voluntary sector, and indeed the private sector, and you will know that this Committee believes very strongly that service users will not be adequately protected unless they are considered public authorities for the purposes of the Human Rights Act. Recent law decisions have not helped in that respect. However, it would be helpful if you could tell this Committee exactly what you are doing to ensure that the duty to act compatibly with Convention rights of service users applies to both the voluntary and the private sectors.

  Mr Lewis: I will just deal with the first point you made about the voluntary sector and its traditional role. Another very distinctive shift of emphasis by the new Prime Minister is celebrating the role of the voluntary sector to campaign, change and advocate politically (with a small "p") in communities, not just be an extension of the state in terms of service provision. This is a very clear position of both the current Prime Minister and Ed Miliband, who was leading on these issues, and now Phil Hope, his replacement. The point you make is really important. On the question of what plans do we have, to be absolutely clear, the negotiations are ongoing with the Ministry of Justice. I am absolutely determined, as we as a Government are, to put that anomaly right. Parliament always intended that independent sector providers should be covered. The commitment here is that we are currently discussing with the Ministry of Justice the best way of doing that, so hopefully we will be in a position to make some public announcements on this in the near future.

  Q181  Lord Judd: But surely in the meantime there should be a ruling that all contracts that are made must stipulate the Human Rights Act?

  Mr Lewis: I tell you what we can do, and what I am looking at doing—you heard it first here—is making it absolutely clear as part of the legislation which is due to go through on the new regulator, you know, the merger of the Healthcare Commission and CSCI; it was in the Queen's Speech, that they need to regulate to the level and the standards that would be expected if the Human Rights Act were to apply to those providers. The interim measure would be to make it very clear to the regulator, through guidance or other means which we have not yet decided upon, that they must regulate independent voluntary sector providers according to the same level of standards that are required by the human rights legislation, but then the next stage is to continue to make it clear publicly that the Government's commitment is, as soon as possible, when the right legislation comes along, to make sure that this anomaly is put right.

  Q182  Lord Judd: But surely in the meantime a very practical step is just to ensure that whenever a contract is made it is in black and white in the contract.

  Mr Lewis: That is exactly what we are looking at at the moment, with both the regulator and the Commissions.

  Q183  Chairman: The problem with that approach is that it cannot be enforced by the person that receives the services in the same way that it could if there was a direct applicability to the Act. I remind you that when I brought my 10-Minute Rule Bill in last year in response to the Second Reading, Vera Baird, who was at the DCA in those days, said that this would be sorted out by Christmas. Will it?

  Mr Lewis: It depends when Christmas is going to be this year, I guess.

  Q184  Chairman: 25 December is usually the date.

  Mr Lewis: I think that the Government hopes to announce its position so it is absolutely clear, publicly and to parliamentarians, before Christmas. Will it be sorted out? I think it is highly unlikely. Will it be clear to everybody how we intend to sort it out? I hope it will be before Christmas, yes.

  Q185  Chairman: It will certainly in relation to this lot because I am going to deal with the Bill, so there we are.

  Mr Lewis: Right, okay.

  Q186  Lord Judd: One last quick question. We have a rotation system in the Lords and I am about to be rotated off the Committee, and this is my very last question that I am ever going to ask. It is a very small, specific point. Can you tell us why there is no reference to human rights or any practical guidance on rights for commissioning authorities in the recent Good Practice guide issued by the National Director of Learning Disabilities?

  Mr Lewis: No.

  Q187  Lord Judd: Could you please draw this to his attention?

  Mr Lewis: When we publish for consultation the revised Valuing People document I think that is where we need, in that document, to talk much more up front and clearly about the human rights elements of the whole agenda, so I will make sure that that document begins to put that right, yes.

  Q188  Lord Lester of Herne Hill: These are questions to Anne McGuire. First of all, on the disability equality duty, it is almost a year old and we have had evidence from the National Director on Learning Disabilities and others about the low level of awareness of public authorities about the requirements of the duty. What steps are the Government planning to take to address the problem of low awareness?

  Mrs McGuire: There are a couple of issues there. One is the awareness of the disability equality duty at a high level within public authorities, the publication of a disability equality scheme, et cetera. The Office for Disability Issues undertook some work in co-operation with the Disability Rights Commission and we certainly found that there was significant compliance with the disability equality duty. Indeed, if my memory serves me right, there were only about 60 public authorities that had not published the disability equality scheme and most of them were persuaded to do so before their names were published. We also have a bigger issue, and it harks back to some of the comments that Ivan made earlier about the cultural change. The disability equality duty is a radical change in the way in which public authorities are expected to work. To be frank with you, radical change does not happen overnight. We are talking about challenging, all the way through the system from the chief executive to the person on the front line, the way in which they operate. We are working through the Office for Disability Issues to ensure that that involvement is recognised and that that responsibility at all levels within the public authority structure is recognised, and, of course, one of the ways we have of doing this is to ensure that the chief executives, for example, are responsible for the implementation in the same way as there are specified secretaries of state responsible at central government level for the implementation of disability equality duty. In the lead-up to the implementation of DED and since that time I have made it very clear that this is not a tick-box exercise, it is not something that you did on 6 December or 1 December last year and you put it to one side. It will be monitored, there will be action plans accepted, you will be judged by the implementation of your action plan. Previously we would have worked closely with the Disability Rights Commission. We obviously will work closely with the new Equality and Human Rights Commission to ensure that this is not going to be left on a pile somewhere.

  Q189  Lord Lester of Herne Hill: Thank you very much. Given that it is radical and new and that a tick-box exercise will not do, could you provide the Committee—not now—with some indication in writing of exactly what you propose to do to promote awareness so that people get the full protection of the duty?

  Mrs McGuire: Yes, I will do that and build on my answer.

  Q190  Lord Lester of Herne Hill: Thank you very much. Could I turn to the Disability Rights Convention? First of all, given that we have plenty of existing law and practice under the Human Rights Act and the Disability Discrimination Act, how will ratification of the Convention help in the real world to make life better for adults with learning disabilities? What added value is there in it?

  Mrs McGuire: First of all, we are having to go through our own law at the moment to make sure that we are compliant with the UN Convention. In terms of practice in spirit we are pretty compliant, but we also have to ensure that we are in fact compliant and can meet our responsibilities. I am not sure whether or not the Committee is aware that the level of awareness and support for the UN Convention amongst disability groups within the UK was astonishing, including from those organisations for all people with learning disabilities, because for the first time, I think, we saw the United Nations discussing disability in that strategic sense. While countries such as ourselves can say that we have a pretty robust legal framework, there are other countries in the world which in signing up to the Convention have to look now to their own law and practices. I was certainly buoyed up by the fact that the Foreign and Commonwealth Office and DFID would join with us to promote the UN Convention throughout other countries. Part of it is about raising the confidence of disabled people and those with learning disabilities that there is now an international recognition that they have rights as individuals. They are no longer just the passive recipients of what other people want to give them or do to them; they have individual rights and those rights have been recognised by the United Nations.

  Q191  Lord Lester of Herne Hill: Can I tell you then where I am coming to because I take your answer to mean that we have got plenty of existing law and you have not yet identified any serious mismatch at the moment between our existing law and the Convention? I may be wrong about that. If there is a serious mismatch I would be glad to know about it, but let us assume at the moment—and I have read the Convention and I know a bit about the existing law, that there is no serious mismatch—that we do not need to introduce new legislation to change our existing law and strengthen it. My puzzlement is this. We were the first country to ratify the European Convention on Human Rights in 1951, and we take great pride in that. What I do not understand is why this process is now going to take so long. Looking at your very helpful memorandum, you explain, for example, that we are now eight months since the original period for signature and you have said that there have been 117 signatures and there have been 76 signatories to the Optional Protocol which allows the individual complaints mechanism, and there have been seven ratifications of the Convention and three of the Optional Protocol. I cannot for the life of me understand first of all why we did not sign up to the Optional Protocol. You explain that in your memorandum in a rather curious way, if I may say so, because what you say is, "Traditionally the Government has not favoured accession to Optional Protocols that provide an individual right of petition to the appropriate UN Committee". That is not really correct because we do indeed allow women to go to CEDAW, for example, and we are alone in the big countries in not doing it for the international covenant. I hope we will by Human Rights Day have that to announce. What I do not understand is why we did not even sign the Optional Protocol, not ratify it but sign it, and why you say it is going to take until the end of 2008 to ratify the Convention when, looking through it, the only bit I can see that would cause us slight difficulties—but please correct me if I am wrong—is Article 33, I think you have said in your memorandum, which is dealing with something pretty soft and it is national implementation and monitoring. Why can we not get a bit more energy into signing the Optional Protocol before Human Rights Day, and I know we cannot do that because the Convention is not ratified, but why can we not ratify the Convention, say, within a year of opening for signature instead of waiting for this very long period of time when I see no gap between the Convention and our domestic law?

  Mrs McGuire: I am very reassured by that confidence, Lord Lester, that there is no gap. I indicated that I certainly do not see any gap in principle between the Convention and our current legal framework. Having said that, as I am sure colleagues are aware, we do take the signing of the Convention seriously and we do want to ensure that our legislation is compliant. If I could put it into some sort of context with other countries, yes, there have been countries that have moved very quickly to ratification, and indeed, I think Jamaica, on the day of signature last 30 March, ratified the Convention and signed the Optional Protocol, and that was for them to do. We think the approach we have taken is the right approach, and certainly is one that I have explained to the NGOs, and indeed we are meeting with the NGOs from the lobby on 6 December. Can I also advise the Committee that in just over a year or a year and a half, whatever time it will be during 2008, when I hope we will be in a position to sign, in terms of ratifying conventions is not an inordinate length of time. The International Convention on the Elimination of All Forms of Racial Discrimination was two years and five months, and the Convention on the Elimination of All Forms of Discrimination against Women was four years and 11 months. In both of those cases there was consequential legislation but what I am saying to you is that we want to do it properly and when we ratify the Convention we will be able to say that we are compliant with the Convention. I appreciate the frustration amongst disabled people and their organisations, and it is a convention that I hope to continue to encourage them to feel confident that we are going to sign, but I think we need to make sure that we are properly compliant.

  Q192  Lord Lester of Herne Hill: I am sure that is right, and may I say I welcome your change of language. You said at first the end of 2008 and then you said during 2008.

  Mrs McGuire: I meant to say by the end of 2008.

  Q193  Lord Lester of Herne Hill: But you have not identified any obstacle other than the need to proceed carefully. We agree with the need to proceed carefully, but unless you can come up with a practical obstacle I think you will get more pressure to do it. I quite understand about CERD and I quite understand about CEDAW but, as you rightly said, they required significant changes in our law. I do not think this does.

  Mrs McGuire: We are discussing all of these issues with the other government departments in terms of their own legislation and I hope that the Committee will understand why we are doing it the way we are. If we need to make legislative changes I would rather be able to say that. At the moment, of course, I am not in a position to say whether or not there are new legislative changes or not but I am buoyed up by the opinion given by yourself, Lord Lester, on this matter.

  Lord Lester of Herne Hill: I am probably wrong. Thank you very much.

  Q194  Earl of Onslow: "We... need the Independent Living Bill, which will give people with learning difficulties a legal right to support. Then, if government policy fails to establish the services we need, the courts of law can play their part in pushing for change". We have asked a number of our witnesses about independent living. We know that the Independent Living Review is due to report next year and has recently published research on the business case for support for independent living. If the review does not find a solid business case for further support would the Government be less committed to developing independent living for people with learning disabilities?

  Mrs McGuire: Can I say to the Committee that we believe in the principle of independent living and I think my colleague, the Minister from the Department of Health, when she answered Lord Ashley's debate, said that quite clearly. Where we have a disconnect at the moment is that we do not think that we should legislate at this time on the right to independent living, and I appreciate that that is not a position that some organisations and some individuals feel comfortable in supporting, but we do think in our judgment that that is a sustainable position at the moment. One of the reasons why we pulled together our Independent Living Review Group was to in order to look across the board at all of the issues relating to independent living, including, for example, trying to come to an understanding about what independent living means and trying to get some sort of agreement on that to look at the ways in which it can be supported in individual circumstances. We have not closed the dialogue on independent living by any manner of means. We just at the moment do not think it is appropriate to legislate for the right to independent living.

  Q195  Earl of Onslow: Presumably it is also graded according to the amount of disability that the individual person has. It must be, must it not?

  Mrs McGuire: The definition of independent living?

  Q196  Earl of Onslow: How much independent living you can give to somebody. It must vary. I may not understand the meaning of "independent living".

  Mrs McGuire: I suppose it depends what the definition is. We underpin our thinking on this with independence and control and authority for decisions and, yes, obviously, in some situations people may need support to make some of those decisions but it does not take away their right to exist independently with that support and to have their rights recognised. That is why we thought it appropriate to pull together an expert panel made up from many disabled people who have a great deal of experience, not only in their own lives but also in the lives of other disabled people, to look at how we move this agenda forward. As I say, we have no disagreement with the principle. What we are not prepared to support at the moment is a legislative right and I appreciate that is a position that, as I say, some people will not agree with.

  Q197  Chairman: I do not understand why because we all have the right to live independently. We do live independently. Why can we not give the right to people with disabilities? Is it simply a question of the cost involved in implementing it? Is that the reason?

  Mrs McGuire: No, I do not think so. Part of the discussion that has taken place at the expert panel has been looking at the complexities around independent living, and perhaps the Earl of Onslow has touched on one as well in this discussion. All of our policies at the moment are driving towards independent living, whether that be individualised budgets or giving people control over their lives in education and in employment. It is whether or not at the moment we would support enshrining the right to independent living in law. Our position is that we would not want to do that at the moment.

  Q198  Chairman: But the law has to grapple with some of these relatively grey concepts in the context of the human rights law, and we talk about the right to family life. The right to live independently surely is not much of an extension beyond some of the basic human rights we have already signed up to.

  Mrs McGuire: But it also depends what we mean in terms of independent living. Of course there will be a cost element to that. It is whether or not that right is impossible, how you judge that right to independent living. These are issues we still have to work through in terms of discussion with disabled people themselves, although in principle, as I say, we do not disagree with the concept.

  Q199  Earl of Onslow: Is it not possible to do what I think everybody would like? Is it not possible to do this by policy rather than legislation?

  Mr Lewis: We are doing it.

  Mrs McGuire: That is what we are doing.