Clause 5

Part of Health and Social Care Bill – in a Public Bill Committee at 12:15 pm on 15th January 2008.

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Photo of Kelvin Hopkins Kelvin Hopkins Labour, Luton North 12:15 pm, 15th January 2008

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.]