Only a few days to go: We’re raising £25,000 to keep TheyWorkForYou running and make sure people across the UK can hold their elected representatives to account.

Donate to our crowdfunder

Human Rights Act 1998 (Meaning of Public Authority) Bill

– in the House of Commons at 1:30 pm on 3rd July 2009.

Alert me about debates like this

Second Reading

Watch this
Embed this video

Copy and paste this code on your website

Hide

Photo of Andrew Dismore Andrew Dismore Labour, Hendon 1:35 pm, 3rd July 2009

I beg to move, That the Bill be now read a Second time.

The purpose of the Bill is to ensure that when the private sector carries out public functions—for example, by providing contracted-out services—the Human Rights Act 1998 will apply. This is my third attempt to introduce the Bill. That pales into significance when one considers that I am on my seventh attempt with the Crown Employment (Nationality) Bill. The persistence with which I keep bringing back the Human Rights Act 1998 (Meaning of Public Authority) Bill shows its importance and the fact that the problems have not gone away.

The Bill seeks to reinstate unambiguously the wide interpretation of "public function" that was understood to be the meaning of section 6 of the Human Rights Act 1998 when it was first passed. That interpretation has now been cancelled out by court judgments. My intention is to ensure that human rights protections apply comprehensively, directly and consistently to all those who receive public services from private providers, including the most vulnerable members of our society. The Joint Committee on Human Rights, which I have the honour to chair, is extremely concerned about the issue and continues to press the Government to resolve it.

The Human Rights Act brought home the rights set out in the European convention on human rights. Previously, British people had to go to Strasbourg to challenge breaches of their human rights. However, the protection of the Act has been less comprehensive than Parliament intended because of our judges' interpretation of the meaning of "public function". Under section 6, it is unlawful for a public authority to act in way that is incompatible with a convention right. The Act states that a public authority includes

"any person certain of whose functions are functions of a public nature".

During the passage of the Human Rights Bill, the then Home Secretary and then Lord Chancellor made clear that privatised or contracted-out public services were intended to be within the Bill's scope. We were told that the "public function" definition emphasised the functions rather than the institutional status of the body performing them. Since the Act came into force, a series of court cases has considered whether a specific private company or organisation that provided services came within the ambit of the Act. The result has been to disregard utterly the wide interpretation that was originally intended, and to exclude the private sector completely.

In 2002, the local authority-funded residents of a care home run by Leonard Cheshire, a private charity, wanted to challenge the decision to close their home. They claimed that the decision broke their right to respect for their home under article 8 of the European convention. The Court of Appeal found that the care home was not a public authority under section 6, so the residents could not enforce their rights, even though the council still had its obligations to them. In a more recent case, now known as the YL case, the Law Lords put the matter beyond doubt.

YL was an 84-year-old lady with Alzheimer's. The council in Birmingham organised her care in a private home. Her family raised concerns about her treatment, and as a consequence, the home gave Mrs. YL 28 days' notice to quit. Care home residents have no security of tenure whatever. That is perhaps a more important separate issue. There was evidence that Mrs. YL's condition would deteriorate if she was transferred to an unfamiliar setting, so the decision to evict her was challenged under section 6 of the Human Rights Act. However, the Law Lords ruled that care homes run by private companies, even when they have a contract for the placement of residents at public expense, are not public authorities for the purposes of the Human Rights Act.

In 2004, the Joint Committee on Human Rights concluded that the test being applied by the courts in such cases was "highly problematic". It resulted in many instances in which an organisation stood in the shoes of the state but did not have the state's legal responsibilities under the Human Rights Act.

Watch this

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

I congratulate the hon. Gentleman on his persistence in bringing back the Bill, which I fully support; I have said so publicly, in debate, on several occasions. In fact, I support it so much that I might not even bother to try to catch your eye, Mr. Deputy Speaker. That will give the Minister more time to explain the Government's position. May I ask the hon. Gentleman about the YL case? In that case, the local authority arranged for the client to go into the home, but its duties under the National Assistance Act 1948 did not really go beyond that. Is it his intention, in this draft of the Bill, to reverse the YL case as well as the Leonard Cheshire case?

Watch this

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

The responsibility of the local authority went beyond arranging the client's care. The local authority was also paying for it. The consequences in the YL case have been rectified, as I shall describe in a moment.

The point that I was making was that without the state's legal responsibilities under the Human Rights Act, there was a serious gap in the protection that the Act was intended to offer. The judgment in the YL case made matters worse, creating a problem with the immediate practical implications of much wider significance, because so many services previously delivered by public authorities are privatised or contracted out. The case of Mrs. YL was resolved amicably and to the family's satisfaction after the decision of the House of Lords. As far as she was concerned, there was no longer a problem, but the issue remained until recently.

The implications of the YL case extend across the range of especially vulnerable people in society—not just elderly people in private care homes, but tenants in housing association properties, those with physical or learning disabilities, or looked-after children, for example. In November 2005 the Government published guidance to local authorities on contracting in the light of the Human Rights Act. My Committee found that guidance alone could not solve a problem, and the guidance has proved utterly useless. It dissuaded procurement officers from taking a positive approach. No model process was recommended, nor model or standard contract terms.

The guidance was badly written and difficult to follow, and was unpublicised. It lacked accessibility. It was written in highly technical language and was difficult to understand. It was hard to find, hard to follow and did not give any practical examples. There were no mechanisms in place to monitor the impact on procurement. Local authorities were generally unaware even of the existence of the guidance. Guidance can never be a substitute for the direct application of the Human Rights Act to service providers.

The Government strategy of intervening in court cases has also proved utterly unsuccessful, following the YL judgment. The legal position for other services is now extremely uncertain and must not be left to the vagaries of judicial interpretation. There is an urgent need to ensure that our human rights law clearly and unambiguously protects vulnerable people. My Committee's report on the treatment of the elderly in hospitals and care homes drew attention to appalling evidence of woeful neglect, lack of dignity and respect, and ignorance of the human rights of the elderly.

The then Under-Secretary of State for Health, my hon. Friend Mr. Lewis, who had responsibility for care services, and my right hon. Friend the Minister of State, Ministry of Justice, who has responsibility for human rights, both agreed that the position was anomalous and should be addressed. My hon. Friend the then Under-Secretary of State for Health told me in a written answer on 13 November 2007:

"Publicly funded residents of private residential and nursing homes should be covered by the 1998 Act and I believe that that was Parliament's original intention . . . I shall consider what instructions we can give to the regulator to ensure that homes, including independent-sector homes, are regulated on the basis of their meeting the requirements of the 1998 Act."—[ Hansard, 13 November 2007; Vol. 467, c. 526-27W.]

In evidence to my Committee two years ago, my right hon. Friend the Minister with responsibility for human rights said:

"We will start addressing this issue in the consultation process on the British Bill of Rights and Duties which is beginning early in the new year"— that is, early in 2008. As we now know, that did not happen. The consultation on the Bill of Rights still has not begun, though the Green Paper has been published. Hopefully the consultation will begin later in the year.

However, we also now know that the consultation will not include this issue. We are now told that it will be the subject of a separate consultation. During last Thursday's debate in Westminster Hall on my Committee's report on the UK Bill of Rights and Freedoms, I was told by the Minister with responsibility for human rights that the consultation would begin "soon", but he would not be drawn on what "soon" meant. That is the sort of language that we hear from Ministers who want to be relatively vague. When my hon. Friend replies to the debate, perhaps she can tell us whether "soon" means before the recess.

My hon. Friend the then Under-Secretary with responsibility for care referred to regulators, but I am not persuaded that the problem can be rectified in that way. The Health and Social Care Bill provided the opportunity to address the specific anomaly identified in the YL case. The Government accepted my Committee's arguments that the Bill should be amended to ensure that providers of health and social care should be brought within the Human Rights Act, and that indeed happened.

Although that approach provided a short-term fix for the immediate victims of cases similar to that of YL, however, it did not resolve the underlying bigger and wider issue. We need a legislative solution to achieve the broad scope of the Human Rights Act originally envisaged by Parliament. In the absence of that comprehensive approach, every time there is a Bill that creates powers to contract out services, there is interminable and regular correspondence to departmental Ministers from me, on behalf of the Joint Committee on Human Rights, seeking assurances that the Act will apply. I am forever tabling amendments on behalf of my Committee to ensure that the application of the Human Rights Act to the service concerned is debated and considered.

There is also regular litigation. The more recent case concerned the applicability of the Human Rights Act to privatised custody transport services and the rights of detainees in immigration removal centres. I understand that the case has now been settled, but the terms of the settlement are not clear. Given that one of the defendants was the Home Office, perhaps the Minister can enlighten us on what the terms of the settlement actually were.

Watch this

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

I thank the hon. Gentleman for giving way a second time. There is another problem. If he is forced to try to amend each Act one at a time, the courts might say that that confirms their general approach that unless a particular Act gives an exemption or changes the rule in respect of itself, the general rule will be that the Human Rights Act does not apply—hence the great necessity for the hon. Gentleman's Bill.

Watch this

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

The hon. Gentleman makes an important point. In practice, the YL case has made that pretty clear anyway; I am not sure whether our having to amend Acts one at a time will particularly affect the outcome of any court cases. However, it is certainly time-consuming for my Committee, for me and the Departments concerned to have to consider the issue every single time and make sure that it is reflected in the explanatory notes, where it is usually forgotten about, or in amendments that usually end up being moved in the other place because the issue had not been thought about at an earlier stage.

The case of Weaver v. London and Quadrant Housing Trust, which is about the applicability of the Human Rights Act to registered social landlords, has been under way for two years. The High Court said that the Human Rights Act applied in housing management and lettings, a view more or less upheld in the Court of Appeal. Although no petition for permission to appeal has been lodged with the House of Lords, I understand that such a move is likely to follow. If there is a Lords appeal, will the Government seek to intervene—and if so, on which side?

Yesterday, I spoke at the British Institute of Human Rights seminar on the applicability of the Human Rights Act to private sector providers. At the start, we saw a video of a disabled person who had been forbidden to take his disability scooter on the Newcastle metro, which has a blanket ban on them. He has no way of challenging that; if the Human Rights Act applied to contracted-out public transport, which of course is a public service, he would have had a remedy to question that questionable decision. I ask the Minister what his remedy would be in other circumstances.

In their evidence to the Joint Committee on Human Rights inquiry into business and human rights, the Government said:

"It is clear both in law and practice when a function should be considered a function of a public nature. It is only at the very margins of the concept that certainty may not exist. However, such marginal uncertainty would be an inevitable consequence of the duty having been defined in any manner other than by reference to a list of those subject" to the Act. That was certainly not the view of those at the seminar yesterday—people who are very involved in the issues. I certainly do not agree that the current position is clear. If it were, litigation on mainstream issues, such as the position of prisoners or tenants of registered social landlords, would not occur; they are major, mainstream issues. Even if the issue were at the margin, which I do not accept, the clearer definitions would at the very least reduce the level and extent of uncertainty.

My Bill adopts the approach suggested by the eminent jurist, Baroness Hale, in the minority judgment, with Lord Bingham, on the issues in the YL case. The judgment sets out a list of factors that should be taken into account. Clause 1 sets out that list of criteria, against which a given service can be judged—the "function", in Human Rights Act language—to determine whether the body delivering that service is a public authority, for the purposes of the Human Rights Act. Clause 2 makes clear that the service—not the legal status of its provider or the basis of the arrangement under which it is delivered—is the determining factor. That provides a simple solution to what is a simple problem to resolve.

In June 2006, the then Lord Chancellor made the extraordinary proposition that a "widening" of the definition of "public authority" could have the effect of driving private providers out of the market. I say that it was extraordinary, because it would be not a widening of the definition but on all fours with what Lord Irvine of Lairg, the then Lord Chancellor, told Parliament was intended when the Bill was before it.

Moreover, the appalling implication is that users of services contracted out to the private sector are not to have the right to challenge human rights abuses in our courts. That makes them second-class citizens—and in growing numbers, as local authorities continue to contract services out. The contractor's commercial interests are put before the decent treatment of the vulnerable. I hope that that is not the official position of the Government at present. Indeed, that position was rejected by the former Prime Minister, Tony Blair, when I questioned him about it during a Liaison Committee meeting in February 2007. The Government should not toy with the idea of settling for narrowing the scope of the Human Rights Act in any sector.

As I said, I proposed similar Bills in the previous two Sessions. On Second Reading the first time round, the then Minister, my hon. and learned Friend Vera Baird, said:

"We are committed to taking action this year".—[ Hansard, 15 June 2007; Vol. 461, c. 1047.]

When I pressed her, she said that she meant "this calendar year". I am disappointed that despite that commitment, more than two years later there is still no decision on how to resolve the chaos of the YL case and no plan for legislation to solve the problem comprehensively. Time is of the essence for vulnerable people who ought to benefit from the full protection of the Human Rights Act but are currently denied it, no matter who provides the public services to them. The Government are not moving quickly enough to deal with this problem. I therefore hope that the House will give my Bill a Second Reading today.

Watch this

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General 1:50 pm, 3rd July 2009

I congratulate Mr. Dismore on his persistence in supporting his cause, although we shall not be supporting him on this occasion.

Previous incarnations of this Bill and its subject matter, including the lengthy deliberations on the definition of a "public authority" by the Joint Committee on Human Rights, have often focused on whether private care homes come under the definition of a public authority when providing care to an elderly person funded by the local authority pursuant to its statutory duties. Conservative Members supported the concept of extending the definition to private care homes in that context. However, we have reservations about the scope of this Bill, as it goes much wider, with an unknown regulatory impact on private bodies engaged in public functions.

Let me go into a bit of the background. Section 6 of the Human Rights Act 1998 makes it illegal for public bodies to act in a way that is incompatible with a convention right. The definition of a public body is a broad one, and includes a court or tribunal and

"any person certain of whose functions are functions of a public nature".

The Act allows a person who claims that a public body has acted, or proposes to act, in a way that is made unlawful by section 6 to bring proceedings against the body under the Act. However, they can do so only if they are, or would be, a victim of the unlawful act.

Watch this

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

The hon. Gentleman referred to the need for an impact assessment. As my Bill proposes what was the original intention of the Human Rights Act, the original impact assessment for the Human Rights Bill, as it then was, will be exactly the same as it would be for this Bill.

Watch this

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

I think that this Bill significantly extends the issue, and we would certainly want to see a full impact assessment were it to be taken any further.

When the Human Rights Act was passed in 1998, it did not seek to specify an exact list of what constituted a public authority. A large number of cases since then have been involved with privately run care homes that are subcontracted to provide local authority care. As the hon. Gentleman said, in the case of YL v. Birmingham city council in 2007, a majority of the House of Lords held that a private residential care home was not performing a public function for the purposes of the HRA when providing services to an elderly person funded by the local authority pursuant to its statutory duties. However, I appreciate that the Joint Committee on Human Rights has consistently taken the view that it was clear from the HRA that this was meant by Parliament in 1998 to be included within the Act's definition of public function.

The Health and Social Care Act 2008 reverses the effect of the YL judgment on care homes. It states that any person who provides accommodation with nursing or personal care in a care home for an individual under arrangements made under the relevant statutory provisions is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act to be exercising a function of a public nature in doing so. Given the changes in the 2008 Act, it seems to us that this proposal is a significant proposed extension of the scope of the HRA.

As the hon. Gentleman said, according to the Joint Committee on Human Rights, of which I appreciate he is a distinguished Chairman, there is an unresolved problem with the meaning of public authority in the Human Rights Act, which should be able to be resolved by passing the Bill. However, it is clear that questions remain unanswered about amending or clarifying the meaning of the term, and they prevent us from supporting the Bill.

There needs to be clarification of which bodies would be likely to be caught by the extension of the definition. Is the hon. Gentleman sure that what he described in his opening remarks covered the Bill's scope fully? Many private bodies receive state funding. If the Bill were passed, would an employee of one of those bodies be able to use rights under the Human Rights Act in employment cases? It is clear that Parliament did not intend that publicly funded residents living in private sector establishments would not be covered by the Act.

Questions have to be answered about the scope of the Bill. There is a risk that any care provider involved in a private transaction could be brought within the scope of the Human Rights Act.

Watch this

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

Will the hon. Gentleman expand on that? I fail to see how that could be the case. There is an argument among those involved in the care homes fraternity and relevant non-governmental organisations that it should be, but my Bill has been drawn up to ensure that that does not happen, as was the previous change in the law in 1998. That is another issue to consider, but my Bill is not intended to address it.

Watch this

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

I am pleased that the hon. Gentleman makes that clarification, but we have concerns and do not want uncertainty. We do not want a pharmacy, or even a bank, to come within the definition of "public authority" in relation to the Human Rights Act. It is clear that Parliament did not intend that to be the case when the Act was passed, and if we accepted the Bill we could be acting contrary to the intention behind the Act and introducing a whole raft of unnecessary regulation of private bodies engaged in some way with public functions.

I do not think that I need remind the House that since 1998, Labour's new regulations have cost the British taxpayer in excess of £76 billion. We would be negligent in our duty to protect the interests of the British people if we subjected them to further and unnecessary regulation, particularly as we have not had the opportunity to conduct in-depth analysis and scrutiny of the far-reaching proposals in the Bill.

It is clear to us that the Bill's scope is simply far too wide. The question is not simply whether a private care home comes under the definition of a public authority when providing an elderly person with care funded by the local authority. The Bill has the potential to go much further, but the case for that has not been made. Parliament cannot afford to make a mistake on the meaning of public authority, and business cannot afford that either.

We must consider this important issue within the wider context. As far back as 2003, service providers expressed concerns about widening the definition. A number were worried that it would jeopardise both the perceived and actual status of organisations such as housing associations as being independent of Government. Furthermore, many service providers believe that by being labelled a public authority, they may be prevented from raising money outside Treasury controls, for instance.

We cannot simply redefine public authority in the broad manner that the hon. Gentleman advocates, especially as there is an extremely high risk that it will lead to unnecessary regulation of businesses that, let us face it, are in the grip of one of the worst recessions we have experienced. Conservatives must also assess his proposals in the context of the future Bill of Rights, with which we intend to replace the Human Rights Act.

To my knowledge, there has been no assessment of the costs of implementing this Bill. We believe that they would be significant. This is not the time to be putting a significant burden on business and on the taxpayer, particularly as no one knows what the cost will be and we are experiencing a deep recession. The truth about the real cost of widening the definition of public authority in the Human Rights Act must be determined before anyone can even contemplate supporting the Bill.

We support widening the definition of public authority to include private residential care homes where publicly funded patients are resident. However, the Bill goes much further, creates too many possibilities for labelling private sector enterprises as public authorities and does not take it into account that the cost in time and money for those private sector enterprises could be immense.

Watch this

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

The hon. Gentleman focuses on the cost to business. Has he considered the cost to the consumers of those services that businesses provide? The Human Rights Act requires, for example, elderly people and children in looked-after accommodation to be treated with dignity and respect. What cost is involved in that?

Watch this

Photo of Jonathan Djanogly Jonathan Djanogly Shadow Minister (Business, Innovation and Skills), Shadow Solicitor General, Shadow Minister (Justice), Shadow Solicitor General

The hon. Gentleman should consider the cost not only to business but to the taxpayer, particularly as we are talking about the public sector. However, concentrating on the specific examples that he gave might be a better way of proceeding than through the general sweeper with which he has presented us today.

Watch this

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice 2:00 pm, 3rd July 2009

Mr. Djanogly finished so succinctly that I was almost taken unawares.

I congratulate my hon. Friend Mr. Dismore not only on securing Second Reading of a private Member's Bill, but on his persistence in pressing a particular issue. He has brought to the forefront of our minds the Human Rights Act 1998, and it was interesting to hear the hon. Gentleman put on record again that the Conservatives would abolish it and replace it with something else.

The Human Rights Act may be a technical document, but it is not a mere technicality. It is a difficult and sometimes sensitive subject and, for reasons that I shall detail shortly, I must tell my hon. Friend that I cannot support his approach in the Bill. However, let me make it clear at the outset that there can be no doubt about the importance of the issue that he has raised. I agree that it is fundamental to the operation of the Human Rights Act—that is why the Government are implementing an effective programme of action to tackle it. I shall explain that in detail in a moment.

I also want to put it on record that my hon. Friend is the Chairman of the Joint Committee on Human Rights. He has been an assiduous Chairman and a vocal champion in this House of human rights—a very good thing, too. Human rights matters are sometimes perceived as arguments that are best left to lawyers and judges—I am conscious of the fact that I am the only person speaking in the debate who is neither—and that may be why they tend to be raised more frequently in the other place. Through my hon. Friend's amendments to Bills, he has put human rights on the agenda of the elected House—where they belong, at the heart of our democratic process.

My hon. Friend's commitment is clear. He has raised the public authority question in at least three Government Bills in this Session alone, and the measure is the third Bill that he has presented on the subject. Before I go into detail about the Government's response, I want to deal with some of the questions that he asked.

My hon. Friend asked about the commitment of my hon. and learned Friend the Solicitor-General to take action in the calendar year 2007 while in her previous post. Her commitment was fulfilled late in 2007, when the then Minister with responsibility for care services tabled an amendment to the Health and Social Care Bill to reverse the effect of the YL judgment.

My hon. Friend also asked whether the Government would intervene in the Weaver v. London and Quadrant Housing Trust case, should there be an appeal to the House of Lords. Obviously the detail of that case must remain sub judice, so it would be irresponsible of the Government to make a decision until we can assess what issues will be raised on appeal.

Watch this

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

If the Weaver case had been sub judice, I would not have referred to it. It is not sub judice, because the Court of Appeal has finished with it and there are no current proceedings unless and until there is an appeal to the House of Lords.

Watch this

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

My hon. Friend makes a perfectly valid point. My response to whether we would intervene in that case and on which side would very much depend on what issues were raised by an appeal. We would then have to assess whether any intervention would be merited. At this stage I cannot comment further on the case.

The third thing that my hon. Friend asked—I think that I am going to disappoint him again—was what the term "soon" meant when Ministers say that some consultation or other will take place soon. There is also the problem of the difference between "soon" and "in the near future", and other phrases of that ilk. The consultation on the subject that my hon. Friend has raised will take considerable time and effort if we are to do it properly. We therefore do not expect "soon" in this context to mean before the summer recess, although how soon the consultation will take place thereafter is another matter altogether.

Watch this

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

If "soon" does not mean before the summer recess, which most people would think it did, does it mean before we come back in October?

Watch this

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

My hon. Friend may be trying to lead me down a path down which, at this stage, I do not wish to go. As I have said, to do it properly the consultation will take some time to put together. I will, of course, come back to him and the House when I have asked my right hon. Friend the Minister of State, Mr. Wills whether he can be more precise about how soon "soon" might be and, specifically, whether it will mean before the end of the recess or before the beginning of the next Session.

I pay tribute not only to the Chairman of the Joint Committee on Human Rights, but to the Committee as a whole. The scrutiny that it gives legislation is excellent and forms a vital part of ensuring that we take human rights fully into account when we make law in this place.

Watch this

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I also posed my hon. Friend a fourth question. What remedies are available to the poor chap with the disabled scooter who is not allowed on the Newcastle metro because of its blanket ban?

Watch this

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

When I heard that, my initial reaction—the reaction that I think every Member of this House would have—was that it was an appalling decision by that organisation. Without being an expert on the subject or in a position to give my hon. Friend chapter and verse, I would have thought that there ought to have been some remedy through the Disability Discrimination Act 1995, if not the Human Rights Act 1998. Again, however, I shall be happy to look into that further, so that we can ensure that no one with a disability is prevented from travelling on what is, essentially, public transport, so that they are allowed to conduct their activities in the same way as those who are able bodied.

The Joint Committee's detailed reports do not always hit the headlines in the way that some other Select Committee reports do. Furthermore, the Government do not always agree with every opinion that it expresses. That is to be expected; the democratic debate would be all the poorer if that were not the case. However, I commend the Committee's expertise, and the attention that it gives to the detail of our legislation, because that clearly benefits the process of making legislation. That is why our Joint Committee is seen across Europe as a model of excellence that others look to and seek to emulate.

The Bill is functionally identical to the one that my hon. Friend introduced in December 2007. That Bill was not reached on the day that it was set down to receive its Second Reading in May last year, so I am pleased that, 13 months later, we now have the opportunity to respond to it. It would add an additional layer of interpretation to section 6 of the Human Rights Act 1998. It would not amend the Act, but it would sit alongside it. It is not entirely clear whether it would erase the existing case law on the interpretation of section 6, which I shall discuss later, or whether it is intended only to influence its future development.

Clause 1 sets out a list of factors that must be taken into account when determining whether a particular function is a function carried out by a public authority within the meaning of the Human Rights Act. My hon. Friend referred to the fact that two of the dissenting judgments had, in effect, given him that list of factors. Each of the eight factors is a test for the publicness, if you like, of a function. Clause 2 adds a further test for publicness, based on the involvement of public expenditure. The clause itself states that this test is for the "avoidance of doubt". However, the test is not consistent with the current jurisprudence on section 6, or with any conception of how section 6 was intended to operate.

As I said, the current Bill is, with a few exceptions, the same as that introduced by my hon. Friend in the last Session. Further to this, however, it is worth noting that it differs considerably from the first approach that he took to this subject, in a Bill that was introduced in January 2007. That Bill was debated on Second Reading in June 2007. It was a much shorter Bill than this one—I think that it was the one that Mr. Djanogly felt more comfortable with—and instead of the list of factors and the additional test in clause 2, it had just one simple test, based on the contractual relationship of the body performing the function to a public authority.

The Solicitor-General, my hon. and learned Friend Vera Baird—then the Parliamentary Under-Secretary of State for Justice—responded for the Government in that debate, which took place just a few days before the decision of the House of Lords in the YL case, about which I shall say more later.

Watch this

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

My hon. Friend questioned my interpretation of the assurance given by my hon. and learned Friend the Member for Redcar, by saying that the Government had honoured that commitment by the action that they took in relation to the YL case at the end of 2007. As my hon. Friend has just said, however, the YL case was decided afterwards, so that assurance related to the generic problem, and not just to the YL issue, which remains unresolved.

Watch this

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I stand by the position that we believe that the amendment in the Health and Social Care Act 2008 responded to the issue that my hon. Friend raised at the time.

It might assist the House if I were to explain some of the background to the Bill. I want to do this because there is sometimes a perception that issues such as these are merely lawyers' arguments, and that they have no relevance to the everyday lives of people in this country. I hope, however, that this debate we will help us to see that the Human Rights Act 1998, for all that it is misrepresented and criticised, is a vital piece of legislation. The issue that my hon. Friend raises through the Bill goes to the heart of it.

The European convention on human rights was agreed in the aftermath of the second world war. It drew its inspiration from the universal declaration of human rights proclaimed by the General Assembly of the United Nations in 1948. The rights protected by the convention have a long British pedigree, rooted in the Magna Carta, the Habeas Corpus Act of 1679 and the Bill of Rights of 1689. Those rights form an essential part of our constitution and have been part of our common law for many centuries.

Sir Edward Gardner, QC, a senior Conservative MP who first called for the incorporation of the convention in 1987, said that the language of the convention

"is language which echoes down the corridors of history. It goes deep into our history and as far back as the Magna Carta."

The convention was in large part, of course, the work of British jurists—not least of Sir David Maxwell Fyfe who later as Lord Kilmuir became Lord Chancellor—so while the convention may be European by name, it is very much British by heritage. In some respects, given that history, one wonders why the Conservatives are so keen to unpick so much of what is in the Human Rights Act.

The United Kingdom was one of the first countries to sign the convention in 1950 and to ratify it the following year. In 1966, we accepted the right of individual petition to Strasbourg. Then, of course, a person seeking to claim that their rights had been breached by a party to the convention applied to the European Commission on Human Rights. Since the 11h protocol to the convention came into force in November 1998, individuals have been able to apply directly to the European Court of Human Rights.

In spite of having been so instrumental in the convention's development, it sadly took another 50 years before we incorporated it into our domestic law. Until 2000, UK citizens had to join the back of a very long queue if they wanted to access their rights at the European Court of Human Rights in Strasbourg. I am very proud, as I am sure is my hon. Friend the Member for Hendon, to be part of the Government who introduced the Human Rights Act in 1998. By putting that Act on the statute book, we in a sense brought rights home, making it possible for the first time for people who felt that their rights had been breached to take action in our domestic courts. Those rights—the convention rights—were drawn directly from the rights under the European convention itself.

There are those who have taken to using the term "human rights" in a disparaging way, so let me remind the House of the sort of rights that we are talking about. We are talking about the right to life, the right to freedom from torture or inhuman or degrading treatment, the right to freedom from slavery—

Watch this

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I am reluctant to interrupt the Minister, but I remind her that we are debating a Bill that is intended to clarify the meaning of "public authority" in section 6 of the Human Rights Act 1998. At the moment, however, she is talking about generalities, whereas the Bill is rather more specific than that.

Watch this

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

Thank you, Mr. Deputy Speaker. I was, I hope, trying to set this particular Bill in the context of the Human Rights Act, although of course I accept your point.

Bringing rights home has not been an easy legislative task. The Human Rights Act represents the first time—indeed, the only time—we have incorporated the text of an international treaty into our law. It works through several different mechanisms. The statement of compatibility in section 19, for example, means that every Act must be compatible with it.

Section 6 is the linchpin of the protection that the Act provides. Subsection (1) makes it unlawful for a public authority to act in a way that is incompatible with a convention right. The only circumstances in which that obligation does not apply are specified in subsection (2). They are circumstances in which a public authority could not have acted differently owing to provisions of primary legislation, or was acting to enforce such provisions. Those exceptions ensure that the sovereignty of Parliament is respected.

As many Members will recall from the debates on the Bill 11 years ago, the concept of a "public authority" is not defined absolutely. That is, I think, at the heart of my hon. Friend's Bill. Instead, section 6(3) provides that a public authority includes any court or tribunal, and

"any person certain of whose functions are functions of a public nature".

Again, there are a number of exceptions. Section 6(3) makes it clear that "public authority" does not include either House of Parliament, or any person exercising functions in connection with proceedings in Parliament. However, it should be noted that that does not include the House of Lords in its judicial capacity, and that it will not include the Supreme Court when it starts work later this year. Section 6(5) also makes clear that a person is not a public authority in relation to a particular act if the nature of the act is private.

Despite those specific exceptions, the definition of "public authority" in section 6 represents a broad approach. That can be contrasted with the provisions in many other Acts, such as the Freedom of Information Act 2000.

Watch this

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

My hon. Friend is going through the whole of section 6. I presume that that is in order, Mr. Deputy Speaker, because otherwise you would have stopped her. The Bill, however, is very narrowly drawn in relation to that section: subsection (3)(b) is the only part to which it refers.

Watch this

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I am perfectly aware of that. However, subsection (3)(b) is part of section 6, and I think that if we are to change part of that section it is incumbent on me to tell the House what the effect will be on the section and, indeed, the Act as a whole. Tinkering with one small part of an Act can make a very big difference to the way in which the Act will be interpreted elsewhere.

The broad approach to which I have referred was entirely deliberate. It was intended to provide human rights coverage that was both flexible and comprehensive. Generally speaking, two categories of body are caught by section 6(3). The first consists of "core" public authorities or bodies that are clearly public—for example, Government Departments, local authorities and the police. They are required to comply with convention rights in everything that they do. The bodies in the second category, about which I think my hon. Friend is most concerned, are often described as "functional" public authorities. They may be private companies, or charities that are exercising public functions. An example might be a private company running a prison on behalf of the Government. The way in which section 6 is drafted means bodies of that kind are also required to comply with the Human Rights Act in respect only of those specific public functions.

Watch this

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

In that context, will my hon. Friend tell us what attitude the Government adopted in relation to the case involving immigration removal centres and, in particular, the transport arrangements for detainees provided by a private sector company? I think it was GS4, although I may be wrong.

Watch this

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I do not know the details of that case, but I will reflect on what my hon. Friend has said and consider it in some detail, following which I hope to be able to tell him and the House why the Government took a particular line in that instance.

Anyone who performs a function of a public nature will be obliged to respect people's convention rights. That approach reflects the significant changes that have taken place over the past two decades in public service delivery; I hope I may be able to return to that later.

In the 1997-98 debate, the then Home Secretary, my right hon. Friend Mr. Straw, made it clear that the Government intended that a broad interpretation should be given to the concept of

"functions of a public nature".

Those objectives were echoed in February 1998, when he argued that:

"The Bill 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...it was not practicable to list all the bodies to which the Bill's provisions should apply. Nor would it have been wise to do so. What was needed instead was a statement of principle to which the courts could give effect. Clause 6 therefore adopts a non-exhaustive definition of a public authority. Obvious public authorities, such as central Government and the police, are caught in respect of everything they do. Public—but not private—acts of bodies that have a mix of public and private functions are also covered."—[ Hansard, 16 February 1998; Vol. 306, c. 773.]

Watch this

Photo of David Howarth David Howarth Shadow Secretary of State for Justice

The Minister has been speaking for 26 minutes now. We know she opposes the Bill, but we do not know why. The hon. Member for Huntingdon was very clear that he opposed the Bill because it imposed costs on business. I support the Bill, as does the hon. Member for Hendon. Can the Minister say in just a few words why she opposes the Bill?

Watch this

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I hope that in a moment or two I will be able to give the hon. Gentleman some comfort by explaining why I am not prepared to accept the Bill as it currently stands.

Watch this

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

If the Minister is not prepared to accept the Bill as it stands, will she at least be prepared to allow it to pass into Committee so that it can be amended into a form that she might approve of?

Watch this

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

If I am allowed, I shall go into some detail as to why the Bill is unacceptable and would not, even with attempts to amend it, be a satisfactory way of dealing with the important issues my hon. Friend rightly raises.

Clause 1 would, in effect, wipe the slate clean in terms of the interpretation of section 6 of the Human Rights Act 1998. My hon. Friend has previously expressed his disappointment that the law in this area is uncertain, and I gently suggest to him that clause 1 would greatly increase that uncertainty. The Government are simply not prepared to accept that consequence at this stage. [Interruption.] Well, the list of factors has been drawn from the speeches of their Lordships in YL. The only guidance that a court would actually have would be the words in the Bill. Therefore, it is significant that no account is given in clause 1 of the weight that should be given to each factor, or whether each factor points towards or away from any given function being a function of a public nature.

Watch this

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

The Minister has just said that the only guidance a court would have would be the words of the Act, but that is true of any Act. She has just given a reason for never passing any new legislation.

Watch this

Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

Absolutely not; I refute that entirely. If my hon. Friend will reflect, he will remember that in debates on, for example, the Legal Services Act 2007 we made it clear which factors had greater weight than others, so that is not at all unusual in legislation. However, the facts as laid out in clause 1 of my hon. Friend's Bill have not been weighted or prioritised, so it would be entirely a matter for the individual judge to make that interpretation. I cannot believe for a moment that that is what my hon. Friend intended. Indeed, the widely differing views in the case of YL indicate just how individual interpretation of the same factors can result in very different decisions. There is no indication that the approach outlined in clause 1 would resolve or significantly clarify the issue.

I was also asked what other reasons I have for opposing the Bill. Well, there are a number—

The debate stood adjourned (Standing Order No. 11(2)).

Ordered, That the debate be resumed on Friday 16 October.

Watch this