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I introduced a private Member’s Bill in the last Session that would have clarified the scope of the Human Rights Act. During its Second Reading debate in June 2007, the then Minister, who is now the Solicitor-General, said that the Government were “committed to taking action” that year. Unfortunately,
they have not moved quickly to clarify the scope of the Human Rights Act. Instead, they propose to bring forward a consultation on the issue as part of the Green Paper on a possible British Bill of Rights and responsibilities. We have been told that the Green Paper will be published in the first half of this year, so it seems pretty clear that concrete proposals will not emerge from the consultation exercise before the next general election—no matter when that happens to be.
Kelvin Hopkins (Luton, North) (Lab): I want to reinforce my hon. Friend’s point, with which I totally agree. It is almost 10 years to the day since 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. Some 10 years on from that commitment, it is time for us to act accordingly.
Mr. Dismore: I think that everyone believed that that was the case until Leonard Cheshire put a question mark over it and the YL case put a lid on it. It is only since last June that we have become significantly aware of how serious the problem is and how urgent it is that we resolve it.
My Committee’s preference remains for the scope of the Human Rights Act to be clarified by means of a separate Act dealing solely with the wider issue of the meaning of “public authority”. That would have the benefit of dealing with the problem of scope across the board, rather than on a piecemeal basis. It would help other vulnerable groups that are deprived of protection by the ruling, the implications of which are very broad. Such people would include tenants of housing associations and social housing, and children under special educational needs statements whose needs are met in independent schools. It would also ensure that the law in this area was consistent throughout the United Kingdom. I have brought forward my private Member’s Bill again in this Session, and I urge Ministers not to delay in tackling what are, I accept, a complex range of issues.
In the absence of a general solution to the problem, however, my Committee supports an interim solution for the health and social care sector, given the urgency of the issue. In our report of last summer on older people in health care and the services provided to them, we found that 21 per cent. of care homes still did not meet basic minimum standards. We set out a catalogue of abuse, neglect, carelessness, lack of privacy, dignity and confidentiality, and downright discrimination against the elderly. The elderly would be protected from all those things by the Human Rights Act, but given the implications of the YL case, those in private sector homes have no such protection under the Act.
My hon. Friend the Member for Luton, North (Kelvin Hopkins) moved an amendment in the Public Bill Committee that would have defined all providers of health and social care as public authorities for the purposes of the Human Rights Act. The amendment had the support of the Equality and Human Rights Commission and most of the non-governmental organisations. My Committee is sympathetic in principle to the substance of the proposal. The provision of
health and social care is subject to a stringent regulatory regime that involves registration, supervision and inspection. We agree in principle that that should be sufficient to attract the protection of the Human Rights Act. We are left with an anomaly of two elderly residents in the same care home: one would be protected because she was being funded by the local authority, but the other would not be protected because her assets were more than £21,500. Such a situation was pointed out by Help the Aged in its briefing for today’s debate.
Such an amendment, however, would extend the protection of the Human Rights Act to self-funders and would go well beyond what Parliament intended when it passed the Human Rights Act. It would raise wider questions about rights—something that has become known as “horizontality” in human rights jargon. We believe that such an issue—the question of whether private individuals can enforce their human rights against other private individuals or companies that are not public authorities—should be considered as part of the wider debate on the Bill of Rights. Most people do not realise that the Human Rights Act applies to public bodies, not the private sector generally. There is a strong case for horizontality, but the original Human Rights Act did not provide for that. We are simply trying to restore the position to what it was before the Leonard Cheshire and YL cases.
Kelvin Hopkins: Is it not a problem arising from privatisation that people not only find themselves in the private sector but have their Human Rights Act coverage removed as well?
Mr. Dismore: Yes, that is a consequence of the YL case. During a Liaison Committee sitting, I put that point to the former Prime Minister. He said that such a situation would be severely anomalous, and that people with publicly funded places in the private sector ought to be protected by the Act, as not protecting them would militate against contracting out and privatisation as ways to deliver public services.
Our other concern about the broad amendment moved by my hon. Friend the Member for Luton, North to encompass self-funders in the health and social care sector is that it would do little to fix the problem for other vulnerable groups such as those whom I have described, and might support the false impression that nothing further needs to be done to rectify the anomaly. New clause 1 proposes restoring, for the health and social care sector pure and simple, the Human Rights Act’s original intention, which is that the Act should cover private-sector providers of publicly funded services, under arrangements made pursuant to statutory powers. I hope that the Minister will consider carefully the new clause and its purpose. I hope that he will accept it, but if he is unwilling to do so, I urge him to tell the House today that he will undertake to introduce his own amendments to achieve the same effect in the other place.
The other new clauses and amendments that I have tabled are intended to implement the recommendations in our report, “The Human Rights of Older People in Healthcare”, published last summer. We described how the use of human rights can be a powerful lever to improve the quality of services, as well as guaranteeing in their delivery basic concepts such as dignity and
respect for the elderly in hospitals and care homes. As I said, the report gave graphic evidence of abuse and showed that many homes are not compliant with existing regulations. We said that the care standards regulations should require care homes to respect residents’ human rights. The regulations governing the operation of health and social care providers, which deal with matters including staff training and the handling of complaints, require that the health, safety and welfare of service users be secured. We recommended that users’ human rights should also be central to the operation of health and social care providers, and amendments Nos. 3 and 4 are designed to achieve that.
We recommended that the new Care Quality Commission should adopt a human rights framework to underpin and inform its work and make it more effective in fulfilling its statutory duties. We were disappointed that the Government’s reply to our report did not address that issue adequately. New clause 2 and amendments Nos. 5 to 7 would ensure that the protection and promotion of human rights are central to the new commission’s performance of its functions. If the Minister cannot accept the amendments, I should be interested to hear why he thinks our proposals are unnecessary. Help the Aged has said clearly that its main concern is the YL loophole. Notwithstanding that, it believes that the CQC can and should promote and protect human rights through its own work, saying:
“It is vital that the CQC takes a human rights-based approach”,
“this vital remit should be explicit in the legislation...CQC’s work on human rights should go far beyond that of any normal public body. Respect for and promotion of human rights should be fundamental”.
Help the Aged welcomes the amendments that I have tabled.
The outgoing Commission for Social Care Inspection also supports our approach, saying:
“The new commission should place the rights of the people who use services and their carers at the heart of its work and they should have clear rights of access to it.”
Our report on the Bill published in February clearly recommended that the
“merged inspectorate...should adopt a human rights framework”,
and we were disappointed by the Government’s response, which said:
“The Department of Health will not be specifying the precise work programme of the new regulator, but will expect compliance...to form an important element of its work”.
There are three problems with that. First, putting the human rights of health and social care users at the heart of the commission’s work is not equivalent to specifying the precise work programme; it is more fundamental. Secondly, compliance with the Human Rights Act is a legal requirement, not simply something that the Government can expect to happen. Our concern is to ensure that human rights influence the work of the new commission across the board and are not seen simply as a tick-box compliance exercise.
Finally, our report concluded that the Healthcare Commission should not view the 1998 Act as one of the large number of sets of regulations to which it is subject. We said that it should instead regard the framework created by the Act as overarching and fundamental to
all its work. We regret that the Department of Health failed to address that point. It simply restated the current position—that the Act is seen as just another statute applicable to public bodies and demanding compliance, rather than as the culture change that we recommended in last summer’s report on the human rights of the elderly.
We have seen the point come through strongly in the evidence that we have been taking on access to services for adults with learning disabilities—an issue on which we hope to report in a few weeks’ time. I am pleased that the CSCI fully agrees with our conclusions. I hope that the Minister will reflect on that and agree with us that it is essential that the issue becomes an overarching part of the commission’s work.
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Amendments Nos. 8 and 11 deal with the functions of the new commission. Amendment No. 8 would require it to take into account the
“need to improve the range and quality of information provided by health care and social care services to users of those services about their rights”.
That is crucial. Without clear and accessible information about how human rights apply in hospitals and care homes, service users will not be in a position to challenge how they are treated or to know how to seek redress. We have been particularly concerned about older people and people with learning disabilities, but accessible information is essential to secure the protection of the human rights of us all.
We have all seen the signs in public buildings saying that staff are entitled to be treated with dignity and respect. However, we do not often see signs that say that service users, patients or relatives are entitled to be treated with dignity and respect by staff. That, however, should be part of the information process. A lot of hospitals, including those in my constituency, give leaflets to people as they arrive about how they can expect to be treated, but not about their rights in respect of how they will be treated. Such information is essential if people are to be able to enforce those rights.
We also recommended that in undertaking its work, the new commission should take into account the provision of advocacy services. Amendment No. 11 deals with that issue. The Government share our view of the importance of advocacy for older people in health care as well as in other contexts. The important role that advocacy can play in supporting vulnerable people in health and social care will be reinforced by a statutory reference to advocacy in the Bill.
New clause 4 relates to health and social care standards. The Bill does not require the Secretary of State to publish care standards or indicate what the content of those standards might be. We recommended that the CQC should apply a single set of standards for health and social care in relation to issues engaging the human rights of service users. New clause 4 is our suggestion of what a human rights standard might look like. It includes requirements in respect of: staff training on respecting the rights of service users; the publication of complaints procedures; a duty on people to report any failure to respect human rights that they see; discharge arrangements; and the publicising of the
standards that apply. If the Minister sees a problem with those requirements, I would be grateful if he told me what it is.
Finally, we recommended that a basic understanding of how the 1998 Act requires the protection of basic principles such as dignity, fairness, respect and equality should be included in the qualifications, accreditation and re-licensing of health professionals; amendments Nos. 14 to 18 seek to achieve that.
Achieving effective human rights protection requires a combination of different measures operating in different ways to make human rights considerations more central to the decision-making processes of health and social care providers and the new regulator. I urge the Government to accept in principle that the Bill should be amended to reapply the 1998 Act to publicly funded residents of private sector care homes. I also urge him to consider seriously our other amendments, all of which are intended to protect the rights of extremely vulnerable people in the health and social care sectors.
Sandra Gidley (Romsey) (LD): We are debating one of the enduring themes of the Bill. In Committee, Members on both sides made several attempts to beef up its human rights aspects. Most of us were concerned about the fact that 90 per cent. of care homes are run by the private and voluntary sector and are therefore not covered by the Human Rights Act 1998. That was never Parliament’s intention when the legislation was introduced, but case law and decisions in the courts have brought us to where we are today.
It is right and proper that we try to amend that, but there is also a wider problem that probably cannot be dealt with in this Bill. We need to think of ways to avoid a situation whereby people can sit side by side in the same private nursing home with different rights because one person is funding their own care and the other is having it paid for by the state. The Minister has been genuinely sympathetic as regards this state of affairs, and it may be easier to deal with it in stages. However, it is worth pointing out that it has been allowed to exist for far too long. We missed an opportunity with the Equality Act 2006, when several amendments were tabled, and the private Member’s Bill promoted by the hon. Member for Hendon (Mr. Dismore) never saw the light of day. We would not be doing our duty if we were to allow yet another opportunity to slip by. If we leave it all to a consultation as part of a Green Paper on a possible British Bill of Rights, that may be too little, too late.
It is helpful that the Joint Committee on Human Rights has considered the Bill in such detail. I thank hon. Members for tabling the amendments, because they give us a chance to debate the issue once more. In the summary of its report, the Committee says:
“Although the Committee prefers a general solution to clarify the meaning of ‘public function’ in the HRA, it also sees the need for an interim solution in the Health and Social Care Bill. The Committee is sympathetic in principle to an amendment moved in Committee to make all providers of health and social care public authorities for the purposes of the HRA. But this may go beyond what Parliament intended”.
That sums up the situation very neatly. The fact that this presents a difficult challenge does not mean that it is not worth doing.
I welcome new clause 2, which would make it clear that the new commission should adopt a human rights-based approach. It will have to deal with a wide range of legislation, and it is important to many that the human rights aspects are not just a tick-box exercise to be thought about afterwards. The thrust of its work should have human rights principles at its core.
I am disappointed that new clause 3 was not selected—indeed, I am disappointed that several new clauses and amendments were not selected, but perhaps a little more of that later—because its inclusion would have sent a clear message to providers that the CQC could investigate any transgressions of the Human Rights Act. If there is a problem with the amendment, it is that it does not deal with the devolved Governments. I am slightly uneasy about supporting a situation whereby there are potentially weaker human rights in the devolved nations, and I should like that to be addressed.
Certain comments in the Committee’s report do not require legislation to implement but should nevertheless be borne in mind. I was struck by the emphasis on accessible information about human rights, and how that applies to health care settings. Such information will be available for care home residents, relatives, carers, advocates and the public as a whole. At the moment, the professionals involved know what is required of them, but it is sometimes not set out in black and white. Members of the public do not feel empowered, and making more information available to guide them through the process, letting them know what is acceptable and what is not, will do them a great service.
I did not quite catch whether the hon. Member for Hendon planned to press his new clause to a vote. As a matter of principle, we would want to support it, despite our reservation that the devolved nations are not included.
Joan Walley (Stoke-on-Trent, North) (Lab): I welcome the opportunity to speak briefly on this group of amendments and new clauses and I say to my hon. Friend the Minister that I support the spirit of the proposed changes.
I would like to consider briefly aspects that relate to the trend of contracting out and privatisation of health and social care services. At a time when an increasing number of public services are provided by the private sector, it is essential that we get the Bill right. I am conscious that this is not the final opportunity that we will have to debate the matter, and I am speaking now to implore my hon. Friend the Minister to take into account my specific concerns on issues of detail, which relate specifically to subsection (2) of new clause 4. If the spirit of that provision were adopted by the Government, the Secretary of State would
“prepare and publish statements of standards in relation to the provision of health care and social care dealing with matters other than those listed in subsection (1)”.
I would like to consider that measure in relation to the provision of non-emergency ambulance services. My concern stems from a particular state of affairs that has existed in north Staffordshire and Stoke-on-Trent for a long time, where patient transport services are contracted out. I seek clarification from the Minister during this debate, and during the course of the progress of this legislation, on the details concerning transport.
I have examined the Bill, but I did not have the privilege of serving on the Committee that considered it. Clause 4(3) refers to transport services for elderly and disabled people as being
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