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“a function of a public nature includes a function performed pursuant to a contract or other arrangement with a public authority which is under a duty to perform that function.”
In plain man’s language, that means that the Act would then cover state-funded but privately run care homes, as well as state-funded, state-run ones. It would not impact on privately funded homes.
My party supports in principle giving the Bill a Second Reading. We support the principle that services provided on behalf of local authorities by the private sector, using taxpayers’ money, should face the same level of scrutiny as any public provider would. In addition, we welcome the report, published in March, by the Joint Committee on Human Rights entitled “The meaning of Public Authority under the Human Rights Act”, which provided many of the key recommendations in support of this Bill. However, there are a number of issues that we would like to discuss in Committee, should the Bill proceed, and which I will touch on shortly.
Section 6(3)(b) of the Human Rights Act states that a “public authority” includes
“(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature”.
Section 6 makes it unlawful for a public authority to act in a way that is
“incompatible with a Convention right.”
It does not provide a list of public authorities to which the Act is applicable, but it has been argued that, because privately run care homes are subcontracted to provide local authority services, they should be included in the definition. On introducing the Bill for its First Reading, the hon. Member for Hendon (Mr. Dismore) argued that the amendment to section 6 would not widen the definition of what constitutes a public authority, but rather
“be exactly on ‘all fours’ with what the then Lord Chancellor told Parliament was intended”—[ Official Report, 9 January 2007; Vol. 455, c. 152.]
when the Human Rights Bill was introduced in 1998.
This Bill does not seek to identify individual types of categories of public authority in line with the recommendations of the Joint Committee on Human Rights. The hon. Gentleman perhaps made a valid point when he said that the current situation has led to private care home residents being “second-class citizens” in certain circumstances given that they have
to rely on interpreting a contract between a local authority and a care home manager to try to enforce their human rights.
There are many strong arguments in support of the Bill. A key issue is that of care home closures, which the hon. Gentleman briefly mentioned. Under regulation 40 of the Care Home Regulations 2001, state run and privately run care homes have to give reasonable notice of their intention to close, although no specific time period is mentioned and reasonable notice can mean different things to different people in different circumstances.
The Bill would ensure that in future private care homes would not be able to close without ensuring continuation of care for their residents. That would be an important safeguard, welcomed by the Conservatives and, I trust, by other parties as well. It would also be welcomed by many charities, such as Age Concern, which has repeatedly expressed its dismay that private care homes can evict residents with no notice and can decide to close as a business without taking into consideration the needs of the residents for whom that institution is their home. All too often, that gets blurred in the debate, but care homes are the homes of those individuals who are resident there. We cannot and must not forget that.
High-profile court cases have highlighted the need for the situation to be clarified. The 2002 case of R. (others) v. the Leonard Cheshire Foundation—commonly known as the Leonard Cheshire case—made the news when the judge, and latterly the Court of Appeal, ruled that the foundation could not be deemed to be a public authority within the meaning of section 6 of the Human Rights Act and that it therefore had the right to cease operations, meaning that residents had to be relocated in community-based units. A subsequent and very similar case of the Crown (on the application of Johnson and others, v. the London borough of Havering came to the same conclusion. However, the Court of Appeal expressed disquiet with the view that a privately run care home was not subject to the Human Rights Act and that the issue of care home closure was having to be decided on a case-by-case basis. That would suggest that there is a clear argument that the situation needs the clarification that the Bill would enable.
However, should the Bill proceed further, some issues will need to be given more consideration than today will allow. It is understandable that independent care home providers are concerned by the Bill’s implications. The English Community Care Association outlined many of its concerns about the proposal when it submitted evidence to the Joint Committee while it was forming its report, which was published in March. Some of the concerns included the widespread lack of understanding about the Human Rights Act itself and that an extension of it would not give residents and their families any more confidence in the care system. In addition, concerns have been raised by care providers, as well as others such as the Lord Chancellor, that the Bill could drive private providers out of the market. No detailed analysis has been conducted. That will need to be undertaken if the Bill is to progress further, as will a full regulatory impact assessment.
All Members rightly believe that more must be done to provide support, protection and rights to those
living in care homes or being provided with care, because they are reliant on us for those protections. However, we must not take a broad-brush approach and tar everyone. The vast majority of those who provide care for our elderly citizens—our parents or siblings, perhaps—are genuine and concerned people who give the best care they can by providing the finest quality of life and environment for the people who have made their care homes their homes.
Mr. Greg Knight: I am grateful to my hon. Friend for making those comments and putting them on the record, because I would hate the report of this debate to give the impression that all privately owned care homes treat their residents unfairly. Is it not the case that privately run care homes are subject to the same inspection regime as those in the public sector?
Mr. Burns: My right hon. Friend is right. Private care homes are treated in exactly the same way as local authority homes. Ironically, the inspection regime was always applicable to private homes, but until recently, under legislation introduced in the past eight years, it was not applicable in the same way to local authority-run homes. There is now fairness in that respect.
My right hon. Friend is right to remind the House that we must not take discussions of proposed legislation such as this Bill as an opportunity to attack private care homes. I know from personal experience as both a Minister and a shadow Minister that the majority of care homes in our country do a fantastic job in providing care and a genuine home environment for some of the most frail and vulnerable members of society. Among those who work in them—as among those who work in all other such walks of life—there is always a small minority that brings shame on the services they provide, but all too often the attention is focused on them and the fantastic work of good care home owners and their staff is forgotten.
The issue of abuse in care homes needs to be addressed, as was highlighted by yesterday’s significant report, but that must not be used as a stick to beat this dedicated group of people who provide much genuine care for our elderly population. We must be careful not to overestimate the potential impact of the Bill, given that private and state-run care homes have an identical level of inspection through the Commission for Social Care Inspection. We must not vilify private care home providers, the vast majority of whom provide excellent and considered care for their residents.
I broadly welcome the Bill, although some aspects of it will need to be carefully examined in Committee.
2.19 pm
The Parliamentary Under-Secretary of State for Justice (Vera Baird): I welcome the contribution by the hon. Member for West Chelmsford (Mr. Burns), who has a good deal of experience to contribute to the debate. I also congratulate my hon. Friend the Member for Hendon (Mr. Dismore) not only on bringing in the Bill, but on his rigorous and resolute work on human rights generally through his role as Chair of the Joint Committee on Human Rights.
One of the Government’s first acts when they came into office was to introduce the Human Rights Bill,
and since the Act came into force in 2000 people in the UK have been able to enforce their rights and claim their remedies in British courts in front of British judges, which has greatly reduced the need to go to Strasbourg. Alleged breaches of rights can be tested more quickly and more easily, and there has also been a significant impact on policy development.
The Bill highlights an important issue that has arisen as a result of the courts’ narrow interpretation of part of the Human Rights Act 1998. During the passage of the Human Rights Bill, the Government intended that public functions in section 6 should be interpreted widely, to give effective protection to individuals whose rights had been breached. Organisations that are not covered by section 6 are not obliged to act compatibly with the convention rights.
The then Home Secretary, my right hon. Friend the Member for Blackburn (Mr. Straw), made it clear that the definition of “public authority” had to take
“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.]
However, as a consequence principally of the Leonard Cheshire case to which both the previous speakers have alluded, things have not worked out in that way at all.
As a result of that case law, private companies that deliver the functions of a public authority under contract are not always obliged to respect the convention rights. This particularly includes situations in which private care providers act on behalf of local authorities. It has been made clear that care standards apply to private and public bodies, and that public authorities are under an obligation under the Human Rights Act—as they are undoubtedly public bodies—to take appropriate steps to ensure that those in care are safe. However, following the Leonard Cheshire case, those who are resident in private care homes provided on behalf of a local authority only have remedies against the local authority and not against the care home directly.
The Government believe that the approach taken to section 6 by the courts in this case has been too narrow, and we are committed to seeking clarification of the meaning of “public authority”. If what we hope happens in the House of Lords on Wednesday does not happen, we shall have to tackle the issue in another way. It is our intention to fill this gap. We have followed the advice of the predecessor Committee to the Joint Committee on Human Rights, on which I was serving when it produced a report in 2003—largely instigated by me—on this gap. It was our conclusion—and it was good advice, although I would say that, I suppose—that we should pursue this issue through litigation. That seems to have been the right way forward.
All we can do is try to intervene in a good case when a good case comes up. We cannot invent a good case, and we cannot make an academic application to the UK courts to ask the court to determine academically what is a public authority and what is not. As cases of this kind do not come up every day, we have had to wait for one. We have now intervened, although not very successfully the first time round. We are also
working our way through the precedent system, which means that we have to get to a court above the one that has found the opposite way in the Leonard Cheshire case. This strategy may well have been effective, in that, on Wednesday, we shall have a judgment one way or another on the meaning of “public authority”. It follows from what I have already said that we hope that that judgment will reinstate the essentially functional definition of a public authority, which the then Home Secretary set out and Lord Chancellor set out in the House of Lords. I have already quoted the Home Secretary on the matter.
It is clear even from our brief debate today that this is not a straightforward issue. We need to ensure that we get the right result. We do not think we should hurry the process with a one-line, one-clause Bill. I do not think that I am submitting my hon. Friend the Member for Hendon to criticism that he would not accept when I say that even he would agree that the Bill is not perfectly drafted.
We would not be happy to continue with a one-clause Bill, trying to amend it on the hoof, when the House of Lords judgment will be given next Wednesday. I say that for the following reasons. The Human Rights Act is a hugely important piece of legislation and it is clear, not least from the contribution of the hon. Member for West Chelmsford, that the rights of many vulnerable people hang on getting a correct definition. That the issue is not simple is made evident by the various interpretations in the courts. Best of all would be that the House of Lords overturns Leonard Cheshire, but if it does not we shall have to take a further element into account: whatever statutory provision is drafted it will again be interpreted by the courts, and if they are bent on a narrowing of the definition we shall have to draft any legislative intervention accordingly. It will be incumbent on us to take note of the strands of reasoning that their lordships put together in coming to their conclusion, either way, so that we follow their thinking and ensure that we drive forward a definition of “public authority” to ensure that the vulnerable people to whom Members have alluded have the care that everybody wants for them.
David Howarth (Cambridge) (LD): I still do not understand why the Minister cannot allow the Bill a Second Reading so that all those issues can be considered in Committee, on Report and in the other place. Allowing the Bill to go ahead will give it a flying start.
Vera Baird: The timetable is unrealistic. If the judgment next week goes the way that we want, we shall consider it and ascertain whether it fills the gap as completely as we want. If not, we shall consider where we go from there. If the case goes against the thrust of our intervention, we want to look at the reasoning behind the failure to follow our intervention and, after consultation, we shall draft a document that helps to frame the right legislation.
I shall exemplify the problems and complexities. In the more recent inquiry into the issue carried out by the Human Rights Committee, Age Concern mooted that one way forward would be to amend the Care Standards Act 2000 to deem care providers to be
performing a public function, whether or not they are private. The Committee itself thought that piece-by-piece change would lead to inconsistency in the application of the Human Rights Act across the board.
Liberty advocated changing the Police and Justice Act 2006 in the interim before the courts could reach a better interpretation. The Committee considered whether to specify in each piece of legislation that public authorities were deemed to be those who undertook delegated or contracted-out functions of various kinds as specified in each measure—a complex way of trying to meet through schedules to Acts every mischief that has occurred in every aspect of services where the fact that the private sector was not a public authority caused difficulty.
So many potential solutions to the problem from so many sources, added to a body of judicial opinion that has yet to emerge, cannot be tacked on to a one-clause Bill and sent to Committee. We are committed to taking action this year and I hope that my hon. Friend the Member for Hendon will take comfort from the fact that we will work hard to ensure that the necessary consultation is undertaken with appropriate dispatch. The Government are well aware that vulnerable people who need the protections of the Human Rights Act are not receiving them. We hope that their lordships agree and follow—
It being half-past Two o’clock, the debate stood adjourned.
Debate to be resumed on Friday 29 June.
Remaining Private Members’ Bills
land use (gardens protection etc) bill
Order read for resuming adjourned debate on Second Reading [2 February].
To be read a Second time on Friday 19 October.
provision of palliative care bill
Order for Second Reading read.
To be read a Second time on Friday 19 October.
retail packaging recycling bill
Order for Second Reading read.
To be read a Second time on Friday 29 June.
disabled persons (independent living) bill [Lords]
Order for Second Reading read.
To be read a Second time on Friday 19 October.
members of parliament (employment disqualification) bill
Order for Second Reading read.
To be read a Second time on Friday 19 October.
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