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15 Jun 2007 : Column 1036

Human Rights Act 1998 (Meaning of Public Authority) Bill

[Relevant document: Ninth Report from the Joint Committee on Human Rights of Session 2006-07, The Meaning of Public Authority under the Human Rights Act, HC 410]

Order for Second Reading read.

1.50 pm

Mr. Andrew Dismore (Hendon) (Lab): I beg to move, That the Bill be now read a Second time.

The purpose of the Bill is to clarify “public authority” in section 6 of the Human Rights Act 1998 to ensure that, when the private sector carries out public functions—for example, in contracted-out care for the elderly—the Act will apply. Although the Joint Committee on Human Rights, which I chair, has not formally endorsed the Bill, many members of the Committee support it. It implements one of the key recommendations in our recent report on the meaning of “public authority” under the Human Rights Act.

It has been immensely important that the Human Rights Act brought home the rights set out in the European convention. Before the Act came into force, British people had to go to Strasbourg to tackle breaches of their human rights. However, in one respect, the protection that the Act affords has been less comprehensive than Parliament intended. The problem has arisen because of the development of case law interpreting the meaning of “public authority” in the Act.

Under section 6, it is unlawful for a public authority to act in way that is incompatible with a convention right. The Act does not provide a list of public authorities to which it applies. Instead, it states that a public authority includes

During the measure’s passage, statements by the then Home Secretary and Lord Chancellor made it clear that privatised or contracted-out public services were intended to be brought within its scope.

We were told that the public function definition emphasised the functions rather than the institutional status of the body performing them. For example, a private security company that ran a prison under contract with the Government would be deemed to perform a public function within the scope of the Act. However, when a private security company provides a service to another private company, the Act does not cover it.

Since the Act came into force, a series of court cases have turned on whether a specific private company or organisation that provided services came within the ambit of the Act. The result has been to undermine and even overrule the comprehensive and wide interpretation of public authority that was originally intended.

One specific case has left utter confusion about the matter. It is the 2002 case, which is commonly known as the Leonard Cheshire case. The local authority-funded residents of a care home run by the Leonard Cheshire Foundation, which is a private charity, wanted to challenge the decision to close the home and
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disperse the residents. They claimed that that broke their right to respect for their home under article 8 of the European convention. However, the Court of Appeal found that the managers of the care home were not a public authority under the definition in section 6. Residents could not, therefore, enforce their human rights against the care home, even though the council still had its obligations under article 8, regardless of its contract with Cheshire Homes.

In 2004, after reviewing that judgment and other cases, which had turned on the definition of public authority, the Joint Committee on Human Rights concluded that the test being applied by the courts was “highly problematic”. It resulted in many instances of an organisation

but without responsibility under the Human Rights Act. That had led to a “serious gap” in the protection that the Act was intended to offer.

Mr. Greg Knight (East Yorkshire) (Con): Will the hon. Gentleman cover the scope of the Bill? Would it go beyond bringing care homes within the scope of the 1998 Act? I am thinking, for example, of circumstances in which a local authority contracts out a community bus service. Would the Bill bring that service within the scope of the Human Rights Act?

Mr. Dismore: That would depend on the basis on which the contracting out was done. If it was done as part of the local authority’s public function, it would fall within the scope of the Human Rights Act, but not if it was done on any other basis. The position will become clearer as I continue.

The gap is not simply a theoretical legal problem—we just had an example of that—but a problem with significant and immediate practical implications as many services previously delivered by public authorities become privatised or contracted out to private suppliers. The law has failed to adapt to that reality.

The implications of this failure extend across the range of especially vulnerable people in society, including elderly people in private residential care or nursing homes, tenants in housing association properties, children outside the maintained education sector and looked-after children in receipt of children’s services.

In its 2004 report on the subject—I believe that the Under-Secretary of State for Justice, my hon. and learned Friend the Member for Redcar (Vera Baird), was instrumental in organising the inquiry as she was a member of the Committee at the time and endorsed its recommendations—the Joint Committee on Human Rights examined several possible solutions, including amending the Human Rights Act 1998 to make clear the responsibility of organisations in carrying out public functions to protect human rights, protecting human rights in terms of the contracts between public authorities and private providers of public services, backed by authoritative guidance on when an organisation was likely to be classed as a public authority for purposes of the Act, and the development of case law on the meaning of public authority.

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At that time, at such an early stage after implementation, the Committee took the view that amendment of the Act would be likely to create as many problems as it solved. Guidance on the formulation of contracts and best practice would be helpful, it argued, but could not provide a complete or enduring solution. It argued that the Government as a third party should intervene in the public interest in cases where a broader interpretation could be argued for. The Government accepted those recommendations at the time.

Three years on from that report, a number of significant developments have taken place and, generally speaking, they have been none to the good. In November 2005, the Government published guidance to local authorities on contracting for services in the light of the Human Rights Act. That guidance was reviewed in our most recent report, published in March this year. We made a number of criticisms and recommendations, stressing that guidance alone could not solve the problem.

The reality is that the method of using guidance has proved utterly unsatisfactory and negative in respect of dealing with the difficulties surrounding the use of contracts to secure better protection of human rights. It dissuaded procurement officers from taking a positive approach and no model process was recommended. We found that the guidance was badly written, difficult to follow and suffered from a lack of publicity. The guidance lacked accessibility and, being written in highly technical language, it 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 practice and local authorities were in general unaware of the guidance’s existence and it had little effect or influence on their policy. Without the use of model or standard contract terms, that guidance was not going to develop a consistent approach to public service commissioning and to human rights.

We felt that without significant joint efforts on the part of the then Department for Constitutional Affairs, now the Ministry of Justice, and the Department for Communities and Local Government, the guidance would continue to fail. We saw it simply as a stop-gap that could not ultimately protect human rights through the use of contractual terms. It could never be a substitute for the direct application of the Human Rights Act to service providers.

Following the Leonard Cheshire judgment, the Government have intervened in cases before the courts to try to broaden the definition of public authority. The Government strategy in acting in this way has not so far been successful and risks making a complex area of law increasingly uncertain and difficult for people to understand.

In the current the House of Lords case of the Crown (on the application of Johnson and others) v. the London borough of Havering, the Government have argued that the meaning of “public authority” covers elderly and vulnerable people who are receiving care from a private provider on behalf of a public authority. The case concerned whether local authority care homes that were transferred to the private sector remained public authorities in respect of local authority-placed residents. The Government have been unsuccessful so
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far, but the appeal is being heard and we await the judgment of the House of Lords, which I understand is due to be handed down this Wednesday.

The Joint Committee on Human Rights found that even if the issue were resolved in respect of the residential care sector, further complex litigation would be likely to arise in other areas. The Government could choose to intervene only in those sectors that it considers should attract public authority status and not others which Parliament had previously been led to believe would be subject to the application of the Act. We were concerned that whatever decision was reached in the House of Lords, it would be unlikely to lead to an enduring and effective solution to the interpretive problems associated with the meaning of public authority. Waiting for a solution to arise through the evolution of the law in this area by judicial interpretation might mean that uncertainties surrounding the Act’s application would continue for many years, which we considered to be unacceptable.

It therefore remains the case that there is an urgent need to ensure that our human rights law clearly protects vulnerable people. The British Institute of Human Rights, for example, has reported on the treatment of residents in residential care homes that clearly amounts to a breach of their human rights. Cases included the circumstances of home closures, notices to individuals to leave homes and inhuman and degrading treatment such as elderly residents being fed their breakfast while sitting on the commode. We in the Joint Committee on Human Rights are about to conclude our own inquiry into the treatment of the elderly in hospitals and care homes. We have received appalling evidence of woeful neglect, lack of dignity and respect and ignorance of the human rights of the elderly.

The Under-Secretary of State for Health, my hon. Friend the Member for Bury, South (Mr. Lewis), who has responsibility for care services, has made it clear that he considers the present position to be an anomaly that must be addressed. Help the Aged, in its briefing for the Second Reading, has welcomed the proposals in my Bill. It says that 400,000 people are vulnerable to serious violations of their human rights without any recourse to legal remedies. Help the Aged points out that the present arrangements can force life-long couples apart and gives the example of a couple who have been married for 61 years who were placed in homes five miles apart because they had different needs. The wife had advancing dementia and the husband was physically disabled. It was agreed that an adapted taxi would be supplied five days a week for the husband to visit his wife, but the arrangement was stopped because of lack of resources. That is clearly a breach of their human rights, but it is not enforceable.

Residents have no tenancy or residential rights in care homes and can be asked to leave at any time, and we heard evidence of that time and again in our recent inquiry. Of course, the most extreme example is elder abuse. Help the Aged reckoned that 500,000 older people are believed to be being abused at any one time in the UK. It claims that the loophole left by the Leonard Cheshire judgment has grave consequences for vulnerable older people, as approximately 90 per cent. of care homes and 60 per cent. of domiciliary care agencies are run by private or voluntary
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organisations. It views the Bill as a crucial opportunity to reconsider the meaning of public authority and it urges hon. Members to support it.

When such poor treatment occurs in a private residential care home, it is not satisfactory for residents to have to rely on interpreting a contract between the local authority and the home’s managers, a contract to which they are not a party and in relation to which they have had no say in its drafting or terms. They should be able to enforce their human rights directly.

In a recent debate on the Government’s “Human Rights: Common values, common sense” campaign, the Minister told the House that the Government recognised that the protection of human rights through a contract was a poor substitute for the direct application of the Act to functional public authorities, as intended by Parliament. We reiterate the conclusions to which the Minister signed up in the first report on the meaning of public authority. Human rights cannot be fully and effectively protected through the use of contractual terms and I hope that the Minister will support the Bill today.

Last October, we asked the Lord Chancellor about the Government’s position in an evidence session. In his Department’s July 2006 review of the Human Rights Act 1998, he repeated the extraordinary proposition that a “widening” of the definition of public authority could have the effect of driving private providers out of the market. That is extraordinary, because it would not be 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 those in private sector care homes, who are probably more vulnerable to abuse than those in in-house facilities, are not to have a right to challenge that abuse in our courts, making them second-class citizens—in growing numbers, as local authorities continue to contract out. The contractors’ commercial interests have been put before the decent treatment of the elderly and vulnerable.

I would be grateful to know whether the Minister agrees with the Lord Chancellor’s proposition, or whether her view is that the best way to deal with the issue is

Those are not my words, but the exact answer that I was given by the Prime Minister in February, when I questioned him on this point in the Liaison Committee. I hope that the Minister will be able to say that the Prime Minister is right and that the views expressed by the Lord Chancellor were not an accurate representation of Government policy, at least as it now stands.

The JCHR concluded in its recent report that amending the Act would be the last resort, but it went on to say that

to clarify the definition of public authority in the Act. The Bill gives effect to that recommendation.

The JCHR raised the possibility of legislation to make it clear that any person or body providing goods,
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services or facilities to the public pursuant to contract with a public authority is a public authority for the specific purposes of the Act. The purpose of my Bill is to reinstate unambiguously the wide and functional interpretation of public authority that was understood by Parliament and Government alike to be the meaning of section 6 when the Act was passed. The intention behind my Bill is to ensure that human rights protections will apply comprehensively, directly and consistently to all those who receive public services from private providers, including the most vulnerable members of our society, such as the elderly in care homes, as I have mentioned.

The Government say that they are consulting on this issue, but I hope that any consultation will be on the format and text of legislation only, as the JCHR has recommended. The Minister may say that she wants to wait until the Law Lords deliver their forthcoming judgments in the Johnson case—which, of course, is in only five days’ time.

I understand that the Attorney-General has concerns about my Bill’s wording, but if given a Second Reading, it will provide a swift way of dealing with this problem, in the event that the Government’s intervention with the Law Lords is not successful—a question to which we will know the answer very soon, one way or the other. If the Law Lords do not resolve the issue with clarity, we can put right the wording in Committee and take account of a short period of consultation. There will be ample time to do that, to have a Committee stage and to bring the Bill back to the House in October.

Time is of the essence for people in care homes and other facilities who ought to benefit from the full protection of the Human Rights Act, but who are currently denied it. I urge the House to support the Bill for these reasons. I urge my hon. and learned Friend not to talk it out, but to remember what her own position was on this vital issue when she was a member of the JCHR. I hope that she still stands by that position, and that she will therefore allow the Bill to proceed.

2.6 pm

Mr. Simon Burns (West Chelmsford) (Con): May I say, Mr. Deputy Speaker, what a surprising pleasure it is for me, after two years of Trappist vows of silence preventing me from speaking at the Dispatch Box, to be doing so this afternoon? It is a particular pleasure because I was for a time the Minister with responsibility for care for the elderly, and for four and a half years in opposition I was, until two years ago, the shadow Minister with such responsibility. Therefore, this is an area in which I have some interest—not from a lawyer’s point of view but from that of the clients and users, particularly those in care homes.

This debate is very timely because it is of course world elder abuse awareness day. It comes a day after the publication of a report by King’s College London and the National Centre for Social Research, funded by Comic Relief and the Department of Health, that highlights that more than 700,000 elderly people are abused in their own homes or in privately run nursing
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homes. The issue of care for the elderly in society is one of increasing importance, and this Bill has the potential to address a serious associated issue. As many Members have said over the years—that makes the point no less important—it is crucial that those who are more often than not the most frail members of our society have the proper protections and the dignity and quality of life that they deserve. We, as a civilised society, have a duty to ensure that they are protected and are given that quality of life.

Currently, the Human Rights Act 1998 covers only public authorities and those performing public functions. The Bill, as I understand it, seeks to clarify the meaning of “public authority” as defined in section 6 of the Act. The Bill aims to insert a clause which would ensure that

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