Clause 5
Health and Social Care Bill
12:15 pm

“Health or social care”

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Kelvin Hopkins (Luton North, Labour)

I beg to move amendment No. 81, in clause 5, page 3, line 12, at end insert

‘and section [Application of Human Rights Act 1998]’.

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Derek Conway (Old Bexley and Sidcup, Conservative)

With this it will be convenient to discuss the following: Amendment No. 82, in clause 157, page 103, line 29, at end insert—

‘( ) Section [Application of Human Rights Act 1998]’.

New clause 3—Application of Human Rights Act 1998

‘Any person providing health and social care within the meaning of section 5(2) and section 5(3) is deemed to be a public authority in relation to the performance of those functions for the purpose of section 6(3)(b) of the Human Rights Act 1998 (c. 42) (acts of public authorities).’.

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Kelvin Hopkins (Luton North, Labour)

I am pleased to have the opportunity and, indeed, the responsibility, of speaking to this important group of amendments and the new clause.  They would bring private and voluntary sector health and social care providers within the scope of the Human Rights Act 1998.

Thousands of older and disabled people do not have access to the protection that they were promised under that Act after a legal loophole was created by a series of judicial rulings. The amendments would rectify that error, and ensure that bodies that provide health and social care as defined in the Bill would be required to act compatibly with the rights and freedoms contained in the Human Rights Act when performing their functions. The measures would close the current loopholes in the 1998 Act that mean that it does not cover people who receive care in a private or charity care home. Although that would change the status of private and charity sector providers of health and social care in relation to the 1998 Act, all state services, including NHS treatment and publicly run residential care homes, are within the scope of the Act. The amendment would ensure that people who receive contracted services are guaranteed the same levels of protection and rights to redress as people who receive services from the state.

Improving the quality of health and social care must be a high priority for the Government, particularly because I support them. It is essential that all health and social care services provide good quality care that respects the rights and dignity of all older and disabled people. The Human Rights Act applies to all public authorities and other bodies when they are performing

“functions of a public nature”.

However, in 2002, a court ruled in the Leonard Cheshire case that private voluntary sector care providers, including those caring for locally funded clients, should not be considered as performing public functions. In a recent test case in the House of Lords, YL v. Birmingham city council, their lordships confirmed by a majority of three to two that narrow interpretation of the Human Rights Act. The Government intervened in the YL case and made clear their desire to see private and voluntary sector care providers fall within the scope of the Act.

On Second Reading, the Government said that they would address the lack of human rights protection for older and disabled people in care homes by regulation. My hon. Friend the Minister said:

“We hope to be in a position to tackle that in the forthcoming Green Paper on the British Bill of Rights and duties, which would allow us to deal with the matter in the wider context of the public authority definition. Including that definition in the Bill causes a problem because it is so vast. However, we will strengthen the regulatory powers in the measure to ensure that the care quality commission can enforce the requirements in line with the relevant provisions of the Human Rights Act.”—[Official Report, 26 November 2007; Vol. 468, c. 105.]

That expresses the hope of including something in a Green Paper, not a commitment to including the provision in the Bill.

Although the Government’s clear commitment to solving what is a pressing social problem is welcome, the proposed solution is inadequate. It is clearly important to promote the centrality of human rights to the new regulatory framework. However, regulations under the Bill cannot be used to close the loophole in the Human Rights Act, because regulations—secondary legislation—cannot be used to change the meaning of primary  legislation. Even if the regulatory route envisaged by the Government provided the Care Quality Commission with greater powers than those already conferred on public authorities by the Human Rights Act, it would provide no direct remedies against care providers for victims of human rights violations. The existence of legal remedies drives broader cultural change, as I said, so giving people the confidence to assert their rights would provide service providers with an extra incentive to protect and fulfil them.

The provisions in the Bill will allow care home residents or their representatives to complain to the care home but, in many cases, they will not be able to take their complaint further. The new commission will not have the power to investigate complaints from individual residents. The only other possible residual route is to make a complaint to the local authority or to use the NHS complaints procedure, depending on the body funding the placement. However, the scope of those parallel complaints procedures is limited to their statutory functions and does not extend to care standards. For example, a complaint that related to an arbitrary eviction engaging the right to respect the home life could not be investigated under the statutory complaints procedures. Access to the health service or local government ombudsman would then be precluded for the same reasons.

If the law is not amended, there will continue to be the prospect of significant human rights violations for which the victim has no effective remedy under domestic law. It is vital that all disabled and older people be given proper access to a legal remedy for all human rights abuses. Following the YL judgment, it is clear that only primary legislation can secure full access to justice for older and disabled people under the Human Rights Act. Previously, the Government’s view was that the creation of the loophole was unintended and that all care home residents should have a legal remedy against care providers under the Human Rights Act.

When introducing the Human Rights Act, the then Home Secretary, my right hon. Friend the Member for Blackburn (Mr. Straw), said that “public authorities” should extend to private providers fulfilling public functions. He used the following words:

“The Government have a direct responsibility for core bodies, such as central Government and the police, but they also have a responsibility for other public authorities, in so far as the actions of such authorities impinge on private individuals.”

He went on to say that the Human Rights Act

“had to have a definition of a public authority that went at least as wide and took account of the fact that, over the past 20 years, an increasingly large number of private bodies, such as companies or charities, have come to exercise public functions that were previously exercised by public authorities.” —[Official Report, 16 February 1998; Vol. 306, c. 773.]

Following the YL judgment, the then Parliamentary Under-Secretary of State with responsibility for human rights in the Ministry of Justice, the Baroness Ashton of Upholland said:

“I am particularly interested in investigating how to use a human rights framework to ensure that all older people in care  are looked after properly...The noble Lord will be aware that one of the issues considered in the judgment was whether the Human Rights Act applied only to those citizens in care homes that were publicly funded. My ambition is to cover all elderly people in care, and I intend to do so.”—[Official Report, House of Lords, 27 June 2007; Vol. 693, c. 597.]

12:30 pm
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Angela Browning (Deputy Chairman, The Conservative Party; Tiverton and Honiton, Conservative)

I am listening with a lot of sympathy to what the hon. Gentleman is saying, but will he clarify something? In recent years, direct payments have been introduced and used by people who would certainly qualify under clause 5(3) as individuals needing personal care and other practices. In the case of direct payments, although the funding comes through the local authority, it is at the discretion of the local authority—and, often, just by mutual agreement with the local authority—that the person who needs the care becomes the employer, particularly those with learning disabilities and such conditions. Therefore, they legally contractually employ the person who carries out the service or the care for them, although the core funding comes via social services. In drafting the amendment, does the hon. Gentleman think that the people providing care through a direct payments grant to those needing care would also come within the scope of the clause, or does he think that because they are legally the employer, employment law and other legislation would kick in instead?

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Kelvin Hopkins (Luton North, Labour)

The hon. Lady makes an important distinction but provided that the effect is to ensure that everyone in any type of care, however it is contracted, is protected under the Human Rights Act, I am happy. The amendment may need further amendment at a later stage during the progress of the Bill, but my intention is to ensure that everyone is covered effectively by the Human Rights Act.

Nine out of 10 care homes are within the private or charitable sector following a range of privatisations over many years. However, under the law as it stands, the scope of the Human Rights Act does not directly extend to those care homes, which means that residents of independently run care homes who experience human rights abuses cannot use the Act to challenge the care home provider. There is widespread and serious concern from, among others, the British Institute of Human Rights that such a situation exists. The institute has convened a group of more than 15 disability and human rights organisations—some of which have provided separate briefings to the Committee— including residential care providers, as well as statutory bodies that share a concern about the protection gap. I ask the Minister to support the amendment in order to close the loophole in the law and to ensure that the Human Rights Act protects older and disabled people receiving health and social care services, regardless of the provider. It is unacceptable that because of changes—perhaps moving from a public home to a private provider—the provisions of the Human Rights Act should be removed from someone in care.

The evidence shows that closing the loophole is necessary and urgent. A number of cases show a stark cruelty and lack of care. We have concerns about malnutrition and dehydration, including meals being taken away before the patient can eat them, or insufficient help with eating and drinking. There is also a lack of privacy, dignity and confidentiality. The hon. Member for Eddisbury spoke of people who had just undergone operations  and who were still unconscious not being treated with dignity. Indeed, some individuals are being left in their own urine or excrement. Neglect and carelessness is another problem; I include poor hygiene and the rough handling of patients, with bullying, patronising and infantilising attitudes being taken toward older people.

I have a list of real examples but I shall not read them out in full. People are being neglected, and becoming bedridden and developing pressure sores. As we heard earlier, people are being over-medicated to keep them docile. Chronic understaffing is another problem; indeed, in one home a single male carer was left on his own to look after 30 older women. That is not acceptable, and I hope that other members of the Committee would agree.

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Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

I am sympathetic to the argument that the hon. Gentleman is developing, but would not the single carer in charge of those 30 people be picked up under the Care Standards Act 2000?

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Kelvin Hopkins (Luton North, Labour)

I am sure that they would—one hopes that they would—but as I said earlier, the Human Rights Act is important, in that it sets a framework of law to underpin people’s rights and to ensure that the culture changes. When such things happen—inspectors cannot be there all the time—people should know that the regulations are backed by the force of law.

As I said, I could mention many other cases, and there are other issues concerning self-funding care home residents. The amendments would also cover care home residents who funded their own social care. We believe that it is vital to protect all older and disabled people, regardless of who pays for their care.

There is a danger in drawing artificial distinctions between publicly and privately funded residents, as Lord Mance noted in his ruling in the YL case. He implored care homes to

“view and treat all such residents with equality”.

He concluded his judgment by sending this message to Parliament:

“if additional protection is to be achieved by statutory means, it is no matter for regret that this should be done without distinguishing between residents in one and the same care home who on the one hand arrange and fund their own care and accommodation and others who on the other hand benefit from local authority assistance to arrange and fund such care and accommodation.”

Other issues will need to be debated later, but I believe that this question is of fundamental importance. I hope that the Government will accept the amendment. Simply expressing a hope that we can bring in regulations or legislation at a later stage is not sufficiently strong. I hope that my hon. Friend the Minister will undertake today to guarantee that the Bill will include a guarantee that the Human Rights Act 1998 will apply to all residents of care homes, whether in the private or the public sector. I rest my case. I hope that others will support me.

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Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I am grateful to the hon. Member for Luton, North for tabling the amendments and the new clause. We heard a genuine exposition of the reasons why the force of the point carries such impact with so  many Members across the House. I pay tribute to him for being a consistent and sincere advocate of the centrality of human rights, which are core values of what we think and what we pass as law.

The hon. Gentleman will be aware that some of what his amendment would achieve was the aim of a private Member’s Bill brought in during the previous session by one of his hon. Friends. However, the Solicitor-General, the hon. and learned Member for Redcar (Vera Baird), who was then the Minister with responsibility for such matters, chose to talk it out—[Interruption.] The Government Whip continues to chunter from a sedentary position in a partisan fashion. We said at the time that we have always wanted the extraordinarily complex issues raised by the amendment to be considered in detail in Committee. I have a lot of sympathy with the hon. Member for Luton, North when he said that the Government’s response, which was effectively to park the matter until a Green Paper on rights can be produced, is insufficient.

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Kelvin Hopkins (Luton North, Labour)

It seems clear that the Ministry of Justice is committed strongly to that matter, as, too, I hope, is my hon. Friend the Minister.

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Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

Indeed. Joined-up government is always a hope, and I, too, noticed what the Ministry of Justice said.

The matter must be considered in detail because, as the hon. Gentleman made clear, a lot of very important legal, conceptual and detailed drafting needs to be done when incorporating the Human Rights Act into legislation. The consequentials and complexities are extremely challenging, which is why we have said that the matter needs to be considered in Committee, for which this Bill seems to offer an ideal opportunity. That would forestall the inevitable delay before the Ministry of Justice produces a Green Paper and Bill to provide for the proposal before us. We hope, therefore, that the Government will consider the matter very carefully and provide some details for us to discuss.

Having said that, the hon. Gentleman will appreciate that—this is consistent with what we said during consideration of the private Member’s Bill that I just mentioned—although we are interested in, and sympathetic to, many of the concepts in his proposal, in the absence of detailed Committee consideration, it would be inappropriate to support his amendment to incorporate en bloc the Human Rights Act. That would have huge ramifications and present many complexities and challenges. However, I hope that he is successful in persuading the Minister to use this Bill as a great forerunner to the detailed debate required to deliver on his wholly laudable objectives.

At a personal level, I should add that it was the wonderful United Nations charter enshrining human rights that first led me to recognise that I had any political bones in my body, because it gave rise to, and was the provenance for, the wonderful organisation that is Amnesty International, to which I gave many years of dedicated work.

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Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

We on the Liberal Democrat Benches support the amendment; in fact, we feel so strongly about it that we added our names to it. I hope that the  hon. Member for Luton, North does not do the usual thing, beloved of some of his colleagues, and withdraw the amendment, because it would be useful to put it to a vote. I hope that this will not be yet another missed opportunity. Similar amendments were tabled during the passing of the Equality Act 2006, at which time the subject was kicked into the long grass of forthcoming reviews, which have now taken place.

As has been highlighted, another opportunity was missed during the consideration of the private Member’s Bill that the hon. Member for Eddisbury mentioned. That Bill was not enthusiastically or even lukewarmly taken up by the Government. I am disappointed that, although we have an opportunity to do something positive, yet again the subject of human rights—this time of people in care homes—is being kicked into the long grass with the mention of a forthcoming Green Paper.

All the time that we wait, there is a lack of clarity around the issue, despite the well-meaning attempts to incorporate the theme of human rights in some parts of the Bill. The consequence is that, in the meantime, it will be very difficult to tackle some of the problems that have already been highlighted by the hon. Member for Luton, North, who made a number of important points, which I will not waste the Committee’s time by repeating.

The recent report of the Joint Committee on Human Rights highlighted that residents in care homes were among the people most vulnerable to human rights abuses. That report outlined many of the concerns raised by the hon. Gentleman earlier. Although I took issue with one of the examples that he mentioned, it seems to me that every day there are examples of practices that are regarded as routine, such as the over-medication that was mentioned earlier, or making continent patients sit around wearing incontinence pads because staff cannot be bothered to take them to the toilet at the appropriate time. Tackling that type of practice will not be a priority when the new commission is being set up and it really beholden on us to try to tackle it.

12:45 pm
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Anne Milton (Shadow Minister, Health; Guildford, Conservative)

I wonder whether the hon. Lady would agree that it is a shame that tackling that type of practice would not be a priority. She talked about raising the bar earlier, but if one raises the bar on the apparently small things the overall culture of the organisation improves and standards would go up too.

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Sandra Gidley (Shadow Minister, Health; Romsey, Liberal Democrat)

I agree entirely. I must also say at this point that there are a lot of places that deal with that kind of problem well. We all go into care homes as part of our jobs and we get a feel for who is doing things well. However, there is not any real way that we can tackle some of these problems.

It is about raising the bar and I agree with the hon. Lady that it would be a shame if tackling that type of practice were not a priority. However, the new commission has a huge amount of work on its hands  and there is a lot for it to get its teeth into. It will concentrate on the must-dos. If tackling that kind of practice does not appear in the Bill as a must-do, in the early days at least, it will not attract the attention that it deserves.

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Brian Jenkins (Tamworth, Labour)

I support my hon. Friend the Member for Luton, North, because I find it quite difficult, coming from a party of equality, to understand how we cannot have equality in the whole country when it comes to the right of appeal. I find it very difficult to understand how a person can be placed in an old folk’s home run by a local authority and be covered by the Human Rights Act, but, through no fault of their own, if they are placed in a privately run home, because the local authority fails to provide that home, they are not covered by the Human Rights Act. I find it even more amazing that, if someone is unfortunately not covered and funded by a local authority but has to make their own provision, they are placed at an even greater disadvantage and have even fewer safeguards.

Although I recognise that the hon. Member for Eddisbury said that it is a legal nightmare when we start to walk down this path, I do not think that the difficulty should dissuade us from doing so. I hope that my hon. Friend the Minister will find the right words at the present time to give an assurance to the members of the Committee that we will not walk away from the problem and that we will start to make an advance in dealing with it and to put a framework in place attached to the Bill, or else provide a very early opportunity for the House to vote on the issue, so that we can cover those vulnerable people and thereby close what I feel is a disgraceful episode: the level of inequality afforded to citizens in our country.

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Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)

I would like to say at the outset that I have a great deal of sympathy with my hon. Friend the Member for Luton, North and the motivations behind the amendment that he has tabled. However, I hope to persuade him, for a number of reasons, that this is not the most satisfactorily or most legally watertight way of addressing the issue now.

I reassure my hon. Friend the Member for Tamworth and the hon. Member for Romsey, who spoke on behalf of the Liberal Democrats, about the safeguards that the Bill will put in place in respect of care homes—particularly private care homes. I am happy to repeat the assurance that the Government have made it clear that they are committed to amending the Human Rights Act to ensure that all independent providers of publicly funded care homes are covered by it. We have agreed with the Ministry of Justice—we are at one on this—that we will use the Bill to strengthen the regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements in line with the relevant provisions of the European convention on human rights. That will apply to all care providers under the Bill.

In the information that I have sent to Committee members, I have already outlined some examples relating to registration. If my hon. Friend the Member for Luton, North and other Committee members read that, they will see that we indeed fulfil the commitment in honouring the provisions not just of this Bill, but in wider legislation, including human rights legislation.

We are also underlining the fact that the purpose of regulation is to establish essential minimum requirements that protect people’s dignity and human rights. I have said that before and I will continue to do so. We will be consulting on the nature of the regulations during the passage of the Bill. I invite hon. Members to come back to the regulation requirements when those are discussed. Regardless of the scope of the remedies provided under the Human Rights Act, we expect all providers of regulated health and social care to respect the human rights of all service users.

As I am sure my hon. Friend will be aware because he has followed this matter closely, there is a problem with the extension of the Human Rights Act to contractual arrangements made by individuals that are strictly private, because it also contains a right to privacy. A far more sensible debate is going on, which we need to have in full, about whether the Human Rights Act is, legally, the best framework for regulating entirely private contracts. The hon. Member for Eddisbury acknowledged the need to have a full and proper debate on that matter. That is one reason why my hon. Friend’s amendment would not be the best or the most legally watertight way of proceeding.

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Angela Browning (Deputy Chairman, The Conservative Party; Tiverton and Honiton, Conservative)

If the Minister does not accept the amendment under the terms already published in the Bill, particularly clause 5(3), perhaps I could raise with him the point that I have already made to the hon. Member for Luton, North. Subsection (3) defines what “social care” includes. What is the Minister’s understanding in respect of those people who contract privately with others, who receive direct payments to provide a package of care or a service where the contract in employment terms is directly with the beneficiary of that service and the individual they contract with? Employment law then comes into it, because there is a proper contract of employment, albeit the funding is public funding coming through social services. What are his thoughts on that matter, if he will not accept the amendment?

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Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)

We will debate clause 5 later. I will happily address that question then, if I may, because my understanding is that because a direct payment would involve a state role—that is, state funding—it would fall under the auspices of the Human Rights Act. I will happily clarify that for the hon. Member for Tiverton and Honiton when we debate clause 5.

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Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I am sure that this is relevant to whatever point that the Minister is addressing. Would he try to provide the clarity that we all need to understand why the Government have tabled Government amendment No. 123 and Government new clause 7 pertaining to clause 157? I understand that those Government amendments would extend the closing of the loophole on the application of the Human Rights Act to private care homes for the purposes of Wales, Scotland and Northern Ireland but not for England. There seems to be a patent inconsistency, and I hope that the Minister will address his comments to that point, which has been a source of our concern.

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Ben Bradshaw (Minister of State (Health Services; Minister for the South West), Department of Health; Exeter, Labour)

Again, I shall happily and categorically clarify that later, but I imagine that amendments address the need for consistency throughout the United Kingdom, not the substance to which the hon. Gentleman referred.

The Government’s other fundamental problem with the approach of my hon. Friend the Member for Luton, North to the amendment is, as he acknowledged, that public authority goes much wider than just care homes. We are working closely with the Ministry of Justice to find a more comprehensive and sustainable solution to the problem. As my hon. Friend acknowledged, the Ministry is committed to addressing the issue and is bringing forward consultation on the Bill of rights and responsibilities. It will draw on the wide range of expertise in that process in a genuine spirit of consultation. I am sure that both he and other Committee members will want to take an active part in that consultation.

I have some difficulty with the Conservative party’s approach. I thought that its commitment to the Human Rights Act was at best lukewarm, and there was a suggestion some time ago that it would get rid of the Act, but again that may have changed.

In response to my hon. Friend, I hope that he will understand that while I have great sympathy with the motivation behind his amendments, we do not believe that in this context they are the right way of achieving the aim that we all share: protection of people, particularly vulnerable people, in all care homes, including private care homes. In that spirit, I ask him to reflect, and to withdraw his amendment.

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Kelvin Hopkins (Luton North, Labour)

May I say at the outset that I remain convinced that we should have a commitment in the Bill to the application of the Human Rights Act to residents in private care homes. It is clear from what the main Opposition party said that there is not sufficient support in the Committee to guarantee success for my amendment at this stage, but I hope that at later stages of the Bill the Government or others will table an improved amendment that the Government will accept.

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Stephen O'Brien (Shadow Minister, Health; Eddisbury, Conservative)

I hope that the hon. Gentleman took note of my comment about the Government’s amendments to clause 157. It may take us a little while to get there, so the Government will have an opportunity to discuss with him whether, for consistency, England might be included. The Minister’s response to the intervention seemed to be that it would bring consistency to Wales, Scotland and Northern Ireland. My point was that the Government seem to have favoured Wales, Scotland and Northern Ireland in the incorporation of rights, but to have excluded England. That seems extraordinary, and there may be an opportunity for the hon. Gentleman to pursue his ideas.

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Kelvin Hopkins (Luton North, Labour)

I thank the hon. Gentleman for making that important point. My concern is not to reduce pressure on the Government to introduce legislation soon to give effect to the objective of my amendment, so that care home residents in my constituency and elsewhere are protected and have the same rights as those in public care homes.

People have come to my surgery with problems in private care homes that have had to be addressed, and one was closed not so long ago. Such issues will not go away until private care homes are covered by the Human Rights Acts. The industry may not be keen on that, because it suggests that there will be greater  pressure to perform well, and to behave decently to all their residents. Some care homes do a good job, and I am not disparaging those that do so, but clearly some do not. We need the force of law to ensure that the human rights of private care home residents are guaranteed to the same level as those in public care homes.

I shall reluctantly withdraw my amendment, but I hope that improved amendments will be tabled during the Bill’s progress in both Houses, and I hope to speak  on them and to pursue the matter. It would not be helpful for my amendment to be defeated, but I hope that the Government will not just talk about future, more general legislation, but include in the Bill the rights of those in private care homes. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

It being One o’clock,The Chairmanadjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at twenty-two minutes to Five o’clock.