New clause 9 - Public authorities and human rights

Equality Bill [Lords] – in a Public Bill Committee at 1:30 pm on 8 December 2005.

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'(1) This section applies to any establishment or agency within the scope of sections 1 to 4 of the Care Standards Act 2000.

(2) Any care establishment or agency is deemed to be a public authority in relation to the provision of care services subject to the Care Standards Act for the purpose of section 6 of the Human Rights Act 1998.'. —[Sandra Gidley.]

Brought up, and read the First time.

Photo of Sandra Gidley Sandra Gidley Women & Older People, Non-Departmental & Cross Departmental Responsibilities

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

On Second Reading and at various stages in Committee, there have been concerns about the definition of a public authority and whether organisations exercising a public authority function are covered by the Bill. I feel that many of those matters are unresolved at this stage.

The new clause seeks not to deal with the wider problem, but with the particular concern that care homes are not covered. There is a particular problem, because many older people spend time in a care home that might not be run by the local authority but is paid for by it. There is widespread concern that there have been various abuses of human rights in some care homes, although I stress that I mean more poorly run ones, because many clearly have very high standards.

There is no redress under the Bill. The amendment seeks to extend the definition of a public authority under the Human Rights Act 1998, to protect those older people who receive care services from private   and voluntary agencies. That would include care homes, day care and domiciliary care in people's own homes. It is important to consider that because of the sheer scale of private provision. In 2004, more than 91 per cent. of care home places and two thirds of domiciliary care services were provided by private or voluntary sector providers. This is an area where there is currently a large loophole.

We have previously discussed the Cheshire case of 2001, which established case law in this area. Hon. Members will be pleased to hear that I do not intend to repeat the arguments, because they are widely on the public record. Case law means that an older person in an independent care home or who is receiving care from an independent agency is not protected.

I believe that that is contrary to the Government's intentions. It is a matter of public record that they are committed to seeking a case to challenge, to try to address the issue. However, four years on, it is disappointing to learn that that case has not yet come to light. What resources have been put into seeking out a case? How has the situation been monitored to ensure that an opportunity has not been missed? Have any cases been considered potentially suitable for the Government to take action on but then for some reason dismissed?

If, in four years, a case has not come forward, it is disappointing to think that we might be here in two, three or four years' time re-rehearsing the same arguments. A fairly simple amendment should be able to settle the matter once and for all.

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Women and Equality), Shadow Secretary of State for Scotland

I want to ensure that we have understood what is intended by new clause 9 and what would be its effect. I do not disagree with the hon. Lady's intention to try to establish or make clear the rights of people in care homes. In many cases, they are people who cannot speak up for themselves, and it is important that their rights be protected. Sadly, in many cases there has been a need for such protection because of bad behaviour by proprietors, negligence or other problems. I do not disagree with that aspect of the Liberal Democrats' intentions, but I am concerned that widening the definition of public authorities would bring in care homes. Such organisations, as public authorities, would then have a duty put upon them in respect of religious discrimination. Many care homes are owned and administered by religious bodies, and I believe that they are entitled to discriminate because that is the very nature of their existence. I would not wish to see their right to choose who should be in their care compromised if their charity is administered by a particular church. There are, for example, many Jewish care homes in my constituency. While they might minister to people of other religions as well, I protect their right to discriminate with regard to the people whom their organisation exists to benefit. They should be entitled to do that.

Photo of Sandra Gidley Sandra Gidley Women & Older People, Non-Departmental & Cross Departmental Responsibilities

We are attempting to ensure that basic human rights are covered, rather than discrimination strands. That is the difference.  

Photo of Eleanor Laing Eleanor Laing Shadow Minister (Women and Equality), Shadow Secretary of State for Scotland

I appreciate that. I had hoped that that was the hon. Lady's intention. In that case, I shall address my question to the Minister who has, no doubt, had extremely good legal advice. It is not clear to me whether the effect of the new clause might be wider than that intended by the hon. Member for Romsey (Sandra Gidley). I want to be certain that the position of charities and other religion-based organisations that run care homes for those adhering to their own religion is not compromised by the new clause.

Photo of Meg Munn Meg Munn Parliamentary Under-Secretary (Trade and Industry) (Women and Equality)

Older people in residential care are, of course, among the most vulnerable people in our society. I am sure that all Committee members share the concern of the hon. Member for Romsey that those living in care establishments should receive high standards of treatment. The Government share the dissatisfaction with the interpretation made in the Leonard Cheshire case. However, we do not believe that legislative amendment is the answer.

Let me outline how we are dealing with the proper interpretation of public authority as the phrase appears in the Human Rights Act. We believe that the problem lies not in the drafting of the Act but in the way in which the courts have interpreted it. As the Joint Committee on Human Rights found, any further legislative attempt to refine the definition of public authority is likely to lead only to additional uncertainty. Similarly, an amendment dealing with one discrete area, as this new clause would, is unsatisfactory as it would create pressures to treat other areas similarly. That would lead us to yet another list in primary legislation which, as is the way with such lists, would tend to be overtaken by events and become exclusive instead of inclusive.

We have, however, taken effective measures to mitigate the problem in the short term. As recommended by the Joint Committee on Human Rights, we have put procedures in place to identify a suitable case in which to intervene to argue for a reconsideration of the meaning of ''public authority''. We believe that the prospects of overturning the Leonard Cheshire decision are promising. We have set up arrangements with the registrar of civil appeals and the head of the administrative court to identify such a case. This matter is a high priority for the human rights policy team at the Department for Constitutional Affairs. That team looking for a case in which to intervene, and it will lead work to examine the issue as part of the discrimination law review. That consideration and consultation is the right way to consider a possible extension of the scope of the Human Rights Act.

As recommended by the Joint Committee and the Audit Commission, we have issued guidance to public authorities on contracting for services. We hope that that guidance will assist in the provision of services compatible with convention rights. That approach, based on contract specification, enables the protection of the Human Rights Act to be extended not only to those residing in establishments covered by the Care Standards Act 2000, but, potentially, to all consumers of public services delivered under contractual arrangements. Having said that, our minds are not   closed about the prospects of legislative amendment. As I have indicated, a strand of the discrimination law review is specifically considering this matter. If a suitable way is found, a refinement of the scope of the Human Rights Act could be possible, but this is not a matter on which it would be right to rush.

All those measures seek to reinstate the Government's original intention for the scope of the Human Rights Act. The Act was never intended to impose duties on purely private parties to comply with convention rights. The amendment would, however, expand the scope of ''public authority'' to include any establishment or agency covered by the Care Standards Act. All those bodies would, therefore, be covered in respect of all their functions by the duty in section 6 of the Human Rights Act.

On the point about religious organisations raised by the hon. Member for Epping Forest, I immediately thought of my own Church's Methodist Homes for the Aged. We do not believe that the amendment would affect that part of the Bill, but we will, in any case, wish to consider the matter within the discrimination law review. Private organisations may well provide functions that are not of a public nature at all, but, under the proposed new clause, section 6 of the Human Rights Act would apply to them. That would be a significant extension of the ambit of the Human Rights Act. Anti-discrimination legislation in respect of goods, facilities and services, which is, by necessity, more tightly drawn and more certain in its effect, is the means by which we currently regulate such activities. The discrimination law review will, of course, consider extending the regime in respect of goods, facilities and services to include age discrimination.

I hope that I have demonstrated the seriousness that the Government attach to this important matter, and I am grateful to the hon. Member for Romsey for raising it. We are committed to resolving the issue effectively, but we believe that our approach offers the best chance of a lasting solution. I hope that, with those reassurances, the hon. Lady will withdraw the amendment.

Photo of Sandra Gidley Sandra Gidley Women & Older People, Non-Departmental & Cross Departmental Responsibilities

I thank the Minister for that comprehensive reply. I said from the outset that the new clause was probably an imperfect way of solving the wider problem, but I felt it important to draw attention to the problems faced by some vulnerable residents of our care homes. The fact that we have waited four years for a suitable case to arise highlights a problem in the system. While I welcome the guidance given to local councils, it might be useful were users and their relatives also provided with some simple guidance on what they could expect as basic human rights and what sort of things could be challenged. I am sure that there are organisations that would willingly help with that challenge, because there is a lot of concern about the fact that much behaviour goes unnoticed and is not acted on. I look forward to seeing what the review comes up with in due course. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.