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13 Mar 2008 : Column 146WH—continued

Mr. Lewis: On the new regulators’ duties and whistleblowers, I cannot give my hon. Friend a definitive answer, as we are considering the issue at the moment. However, the new standards will be put out for consultation. It is certainly one of the issues that I am considering.
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Ipsos MORI has been commissioned to conduct an independent evaluation of the pilots. Once we have received it, we will decide how to mainstream them through the national health service. We want to look at best practice and the trusts that have operated a human rights approach, then consider the implications of mainstreaming that approach throughout the health and social care system.

This debate has demonstrated that the Select Committee’s report has led to significant change. The human rights debate in health and social care has been given much more serious attention than before, but I say to my hon. Friend the Member for Hendon and other hon. Members that we still have a considerable way to go. Part of it will involve legislation and regulation, but some of it involves cultural and attitudinal change.

4.28 pm

Mr. Dismore: I shall not say a great deal, because we have had a good debate. I appreciate my hon. Friend the Minister’s approach. He will receive a letter to remind him of those of our findings that were not recommendations.

I think that the question of the YL case has been troubling for everybody. The problem is that the Human Rights Act applies only to public authorities; a lot of people do not know that. That is where the difficulty has arisen. The Committee argues that, at least in the short term, we should return to where we were, or where we thought we were, before the YL case, so that publicly funded people in private or voluntary sector care homes have the protection of the Human Rights Act, which should be directly enforceable by residents, if necessary, against providers. The present post-YL system makes enforcement extremely indirect and difficult. We want direct enforcement.

The wider issue of whether privately funded people should be included is more complex, partly because that was not what was originally intended by the Human Rights Act. It also raises wider issues about what is known in the human rights trade as horizontality—the right of private citizens to enforce rights against other private citizens or private bodies. That is why it raises significantly wider issues in relation to the human rights debate and, ultimately, the debate about the Bill of Rights. That is not to say that private funders should not have additional protections, but it is another question altogether whether that can be done through the YL reform mechanism. There is an argument that because there is significant state regulation of private sector care homes, they are therefore brought within the public authority definition. However, that is a complex and convoluted legal argument, and I shall not go into it in detail.

When the Committee was considering what amendment to the Health and Social Care Bill to propose on Report, we thought it better to go back to where we were before YL and let the arguments about private funders be resolved differently. As my hon. Friend the Minister has said, we should try to find better ways of protecting them without getting bogged down in the Human Rights Act. The problem has to be dealt with differently, because private provision goes far beyond people in care homes: it concerns adults with learning disabilities and people who receive publicly funded education in
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private schools. A whole range of additional services could be affected, so the issue is much wider. My Bill would refine the definition of a public authority to include such service providers. If we are to go beyond that into private enforcement by private individuals against private companies or people, it would involve a much bigger human rights argument, which has to take place in the wider context of the Bill of Rights debate. We want private funders to be protected, but not in that way.

Mr. Stephen O'Brien: The hon. Gentleman and I are both trained lawyers, so there is grave danger of our getting into a luxurious debate as lawyers. He has put his finger on what is relevant: we must consider the restricted area of amendment, because to go down the private-to-private route would invade privity of contract. That could create a difficult legal position, leading one into the equivalent of tort and duties of care. I must correct the Minister on one issue: the invocation of the Human Rights Act presents problems, which is why both parties are talking about a Bill of Rights, under which one could have rights, responsibilities and duties, and which would make duties in the private sector enforceable. Under the Human Rights Act, that is difficult both as a legal concept and in terms of society.

Mr. Dismore: I have listened to the hon. Gentleman. The Committee will produce a report on the Bill of Rights debate in which we will discuss social and economic rights, although I do not know what conclusions we will reach. We will also discuss horizontality, or private enforcement against private bodies. That issue concerns much wider arguments and debates than apply here. The important thing today is that we hold the Government to their commitment to turn the clock back, and put the law back to what everyone thought it was before YL, when the House of Lords got things wrong.

Greg Mulholland: I accept that there is a legal debate, but I am not a lawyer, so I cannot contribute to that debate. I acknowledged in my speech that there are challenges in trying to adapt the Human Rights Act in this case, but does the hon. Gentleman agree that the general public will find certain situations hard to accept? For example, if two people are in the same care home and one of them has been means-tested and is publicly funded, whereas the other does not qualify and has to pay, that may mean that one of them is covered by the Act and one is not. Never mind legal reality, common sense says that that simply is not fair.

Mr. Dismore: I am afraid that people in more or less equivalent positions often have vastly different rights. There are many examples of such situations. I should like everyone to be protected by the Human Rights Act in every circumstance, but that cannot be done through the mechanism that the hon. Gentleman advocates. I do not want to get into a completely different debate, especially as it would get very technical, but the Act is there to protect people who receive services from public authorities. As a result of the YL case, a private care home is not a public authority. We can correct the problem for publicly funded recipients of care services, because they were originally intended to be covered by the definition of a public authority. Indeed, there are several mechanisms by which we can make that change, and the Government will have to choose which mechanism to use. The difficulty arises when we try to bring into the
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equation self-funders, who have no direct relationship with the state, because that means trying to make the Act do something that it was never intended to do—protect self-funders in relation to private providers.

There is a convoluted argument that if there is significant state regulation, that is sufficient to make something a public authority, which it would not otherwise be. I am not entirely convinced by that argument, although I see where those who make it are coming from. In the interim, we have to find another way of protecting self-funders, which is what the Government are trying to do. In the long term, we must reform the definition of public authorities so that everyone who receives public services is covered, not just those in care homes. I gave examples earlier of others who might be covered. That is reform No. 1.

Reform No. 2 concerns the wider issue of horizontality, or the extent to which human rights should be directly enforceable more generally, outwith the issue of care homes, between private individuals or between private individuals and companies. That is a wider argument, and it falls within the much bigger debate on the Bill of Rights. There are therefore three different stages: sorting out the YL case in relation to care homes, sorting it out in relation to the wider recipients of public services, and sorting out the general issue of those who receive privately funded services from private organisations.

Each of the three stages has a different solution. In the meantime, we must try to find a way of protecting private funders in care homes through other mechanisms, giving protection that is equivalent to human rights protection. In the report, we discussed whether it would be possible to provide better protection against eviction, not necessarily within the context of the Human Rights Act, but under landlord and tenant law. The issue is one where non-lawyers might fear to tread—

Mr. Stephen O'Brien: And lawyers.

Mr. Dismore: Indeed. The more one gets into it, the more complicated it becomes. That is why the Committee
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decided to propose a relatively narrow amendment to the Health and Social Care Bill to return the position with care homes to how it was before YL. That is the cleanest way of dealing with the matter in the interim. There are wider issues to be addressed, but not by using the Bill. Other things can be done to provide those protections, without necessarily involving the Human Rights Act. The issue is very complicated.

I agree with my hon. Friend the Minister that demography is one of the great challenges facing society. When he spoke about policy-making guidance and the impact assessment, he said that human rights are part of the equality duty, but it is the other way around. Human rights provide all-embracing, universal protection, of which equality is one element. He might like to reconsider that point. The hon. Member for Oxford, West and Abingdon (Dr. Harris), who is an active member of my Committee, talked about the need for NICE to have a positive duty to promote human rights, and I do not disagree with that point. He also spoke about quality-adjusted life years, which we should discuss in more detail in future. Once we started to tackle that subject, we realised that it is incredibly complicated. The hon. Member for Leeds, North-West (Greg Mulholland) talked about the duty of confidentiality. That issue is important, and it is raised in our report.

The hon. Member for Eddisbury (Mr. O'Brien) raised several important issues. He also echoed my tribute to all those who do good work. As my hon. Friend the Minister said, it is important that we do not forget that many people do a lot of good work in difficult circumstances. When we focus on aberrations, that should not take away from their work. We need a rights-based approach from the new commission, as the hon. Member for Eddisbury said, and I am sure that we will keep returning to that point. The YL case is a thorn in the side of everyone who is involved in this business, and I hope that the Government will propose their amendments when the Bill starts its progress through the other place.

Question put and agreed to.

Adjourned accordingly at twenty-one minutes to Five o’clock.

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