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6.30 pm
The matter of the significant proportion of care home residents who are privately funded is still outstanding. We often give the example of two people sitting side by side in a private care home, one funded by the state and the other not, and the differential between them. That is clearly unfair and needs to be tackled, but the amendment—which will affect those who are publicly funded—will make staff in care homes think about all aspects of human rights, including those raised by the hon. Member for Eddisbury (Mr. O’Brien), and they are unlikely to distinguish between residents on the basis of how they are funded. The amendment will therefore drive up standards overall.
We must not be complacent. Some homes do not have any publicly funded residents, but they may have residents who qualify for a contribution to their nursing costs. Presumably—the Minister could perhaps clarify the point—because those people are receiving that contribution, the Human Rights Act could be used to redress any problems that they might have. In that case, we may be worrying unnecessarily in some cases.
I thank the Minister for listening on this issue. It has been raised in several forums, including in discussion on the equality Bill, and I am delighted that we have made progress.
Mr. Andrew Dismore (Hendon) (Lab): I too welcome the amendments and the remarks made by the hon. Member for Eddisbury (Mr. O’Brien) and his colleagues, who have welcomed this approach to the Human Rights Act 1998 and the European convention. That is a breath of fresh air as we do not always get that attitude from the Opposition on the benefits of that legislation. The hon. Gentleman cited with approbation my Committee’s report on older people in health care—both in hospitals and in care homes—although I do not propose to go through all the examples we described in that report.
The hon. Gentleman was asked about enforceability and he batted the question over to me. The answer is twofold. First, and most importantly, if the Act does apply in these circumstances, it strengthens the hand of the staff involved in arguing for more resources and better instructions and in standing up for residents against management if asked to do things that are not human rights compliant, perhaps relating to dignity and respect, because of lack of time or ability to deal with a particular patient. Secondly, it enables a general raising of standards, which is the only way we will be able to ensure that the human rights of the elderly are respected, whether in care homes or hospitals.
The rights will also be enforceable through judicial review. Indeed, the issue arose because of a judicial review in the YL case, in which Mrs. YL was about to be evicted from her care home in Birmingham after a dispute, and the House of Lords found that she did not have any enforceable rights in that case. Luckily, that case was resolved amicably after the damage had been done in the House of Lords, so Mrs. YL did not lose out. The law was however put in limbo by that decision.
Mr. Stephen O'Brien: The hon. Gentleman is right on those two points, but on the second point, it will be important to ensure that the advocacy provision is properly framed.
Mr. Dismore: I agree, and our report focuses on recognising the fact that using the law through the court process will not bring about the substantive institutional and attitudinal change that addressing the issue through the Human Rights Act should achieve. It can be used as a tool to lever up standards more generally. Advocacy—for example, through the patient advocacy and liaison services in hospitals—is part of that. Indeed, in NHS hospitals we should not have a problem, because they are carrying out a public function, so the patients are already protected by the Act. Examples, such as cases of malnutrition, were given, and good practice has spread rapidly and widely as a result.
The problem arises in relation to care homes but goes way beyond, and involves the impact of the YL case across what we thought were the public services, but that have been privatised or contracted out. The issue has exercised my Committee, and we have produced two separate reports on the meaning of “public authority”. Earlier this year, we held a mini conference which was attended by Ministers, non-governmental organisations and others to discuss the best way to try to resolve the
YL issue. I have also introduced a private Member’s Bill on the issue two years running, and I shall bring it back in the next Session, if it does not become law this Session, to keep up the pressure for wider reform.
The amendments are very narrow. They would merely restore the position—of care homes only—before the YL case, and would affect only publicly funded residents. I think that that would include part-funders because of the way the amendment is phrased, but perhaps my hon. Friend the Minister can confirm that. As my hon. Friend the Member for Luton, North (Kelvin Hopkins) suggested, that creates an anomaly whereby two residents in neighbouring rooms could be in different positions vis-Ã -vis their legal rights. I suspect that that will not, however, make much difference in practice to the service that they receive from the care home, because it would be very difficult for staff to treat one patient better because he or she was covered by the Human Rights Act, so standards will be generally levered up in any event.
The issue of the YL case remains unresolved. I tabled an amendment on Report, and my hon. Friend said that the Government would consider it. I am pleased that they did so and tabled this amendment in the Lords. He has been as good as his word in addressing this issue, but the basic problem remains. What is happening is that it is being addressed issue by issue. For example, the other place is considering amendments to the Housing and Regeneration Bill in relation to the applicability to housing associations. In a recent court case—it may be going to appeal so I shall not give details—the High Court found that housing associations were covered by the Human Rights Act, but whether that will be sustained on appeal remains to be seen. It is another open question. Every area of public service in which some elements are contracted out or privatised has this problem, but it is only being addressed piecemeal. We need a comprehensive solution.
The amendment is welcome as an emergency provision to deal with an urgent problem that has arisen out of the YL case, but it does not resolve the overall position for care homes generally or the meaning of “public authority”. I hope that when my hon. Friend the Minister replies, he will be able to give us an indication of the Government’s plans for dealing with the general consequences of YL across the piece for care homes and public services more generally. How do the Government propose to consult and take the issue forward and, more importantly, to what time scale will they do that?
There were indications in the other place that, for example, the original intention behind the Human Rights Act, which was that such cases would be covered, might be under question. For example, on housing, the Minister in the other place suggested that it was never intended that housing associations would be included within the meaning of “public authority”. However, that was clearly the intention, as shown by the debates in both Houses on the Human Rights Bill.
Kelvin Hopkins:
Is my hon. Friend suggesting that a category of private institutions with private funding could be regarded as a public service—that a group of
such organisations might be defined in law as a public service even though they are privately run and funded?
Mr. Dismore: I am not sure that I would approach it from that direction. I would approach it from the other direction, which involves considering the service that is being delivered, its nature and where it comes from—and how it is paid for plays a large part, too. If my hon. Friend looks at my private Member’s Bill, which is still live—although I suspect it will not make much progress in October—he will see that in it I have set out a checklist of factors to consider. The more factors that apply, the more likely the institution is to be a public authority, whereas the fewer factors that apply, the less likely it is to be a public authority. The best way of approaching the overall picture probably is to consider the functions—who pays for them, who delivers them and the nature of the tasks being performed.
There are a number of different formulations. I do not suggest that mine is ideal, but I come back to the simple point that we must have a comprehensive answer on the meaning of “public authority” in these circumstances. Although my hon. Friend the Minister’s amendment is extremely welcome, in that it deals with the urgent problem of funded care home residents, it does not deal with the much wider issue. We await some urgent announcements from the Government on how they will take the issue further forward. I hope that my hon. Friend will be able to focus on that when he replies. I welcome what he has done so far—so far, so good—but there is an awfully long way to go.
Mr. Bradshaw: With the leave of the House, Madam Deputy Speaker. I was hoping to respond to my hon. Friend the Member for Hendon (Mr. Dismore), but I have just been sent a rather confusing note that slightly contradicts my introductory comments about the timing of the consultation on the scope of the Human Rights Act. I originally said that we would consult on the subject in the near future. My hon. Friend will probably know this better than I do, as he follows these things much more closely, but the note says that we are already consulting. I am sure that I shall be able to write to him with clarification.
Whether we are already consulting or will consult soon, that consultation is the context in which to have the broader debate about which legislative vehicle should be used and what constitutes a public provision. The bill of rights and responsibilities announced in the draft legislative programme—of which the consultation, whether it has started or not, is part—would provide the legislative vehicle that my hon. Friend seeks.
My hon. Friend and a number of hon. Members asked about the position of part-funders, about which there is still a misunderstanding. The amendment applies to all whose residential social care is arranged by a local authority; it is not to do with funding. For example, the Government’s view is that when a patient receives NHS nursing care, that is already a public function covered by the Human Rights Act, as I said in my opening remarks.
Lords amendments Nos. 52 to 91 agreed to.
Prevention and Suppression of Terrorism
Motion made, and Question proposed,
That the draft Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 2) Order 2008, which was laid before this House on 2nd July, be approved. —[Mr. David.]
6.45 pm
The Minister for Security, Counter-Terrorism, Crime and Policing (Mr. Tony McNulty): I apologise hugely if I detained the House for any time. I had to hang around for about an hour and a half, but, naturally, when the debate was called it was the one time that I had popped out. None the less, to business.
The international terrorist threat to the UK, our interests abroad and our international partners remains severe and sustained. The Government are determined to do all we can to minimise the threat, including using proscription to prevent terrorist organisations from operating in the UK by inviting support, raising funds or otherwise furthering their objectives. The purpose of the order, if the House and the other place so approve, is to add to the list of 45 international terrorist organisations that are already proscribed. We propose to do so by substituting the proscription of the Hezbollah External Security Organisation with a new listing covering its entire military wing. This is the seventh proscription order made under the Terrorism Act 2000.
Section 3 of the 2000 Act provides a power for the Home Secretary to proscribe an organisation if she believes it is concerned in terrorism. That is achieved by adding the organisation to schedule 2 to the Act, which lists the proscribed terrorist organisations. The Act specifies that an organisation is concerned in terrorism if it commits or participates in acts of terrorism; prepares for terrorism; promotes or encourages terrorism, including the unlawful glorification of terrorism; or is otherwise concerned in terrorism.
The Home Secretary may proscribe an organisation only if she believes it is concerned in terrorism. If that test is met, she may then exercise her discretion to proscribe the organisation. When considering whether to exercise that discretion, a number of factors are taken into account that were first announced to Parliament in 2001: the nature and scale of an organisation’s activities, the specific threat that it poses to the United Kingdom, the specific threat that it poses to British nationals overseas, the organisation’s presence in the United Kingdom and the need to support other members of the international community in tackling terrorism.
Proscription is a tough but necessary power and its effect is that the proscribed organisation is outlawed and is unable to operate in the UK. The consequence of proscription is that specific criminal offences apply to a proscribed organisation. They include: membership of the organisation; the provision of various forms of support, including organising or addressing a meeting; and wearing or displaying an article that indicates membership of the organisation. Further criminal offences exist in relation to fundraising and various uses of money and property for the purposes of terrorism.
Given the wide-ranging impact of proscription, the Home Secretary exercises her power to proscribe an organisation only after thoroughly reviewing all the available relevant information on the organisation, which includes open source material as well as intelligence
material, legal advice and advice that reflects consultations across Government, including with the intelligence and law enforcement agencies. Decisions on proscription are taken with great care by the Home Secretary, and it is right that both Houses must consider the case for proscribing new organisations.
The Hezbollah External Security Organisation, a unit of the military wing, was proscribed in 2001 because of its involvement in terrorism outside Lebanon. We now have evidence that further parts of the organisation are directly concerned in terrorism, which is why the entire military wing, including the External Security Organisation, is specified in the order. I am sure hon. Members will appreciate that I am limited in what I can say about the evidence in support of that belief, as much of it is intelligence material and of a sensitive nature.
Mr. Michael Ancram (Devizes) (Con): To their great relief and even joy, the people of Lebanon finally have a Government of national unity again. Hezbollah is part of that Government, so what contribution to that peace process does the Minister think that he is making by proscribing parts of that organisation at this time?
Mr. McNulty: As far as I am aware, no one who is involved in the other parts of Hezbollah and who is part of that welcome new Government has anything to do with the External Security Organisation or any other aspect of the military wing of Hezbollah. We welcome the advent of the new Government, and at the start of these proceedings, I was very careful to read out the criteria under which we proscribe organisations. The right hon. and learned Gentleman will know that Hezbollah has definitive political, social and humanitarian wings that perform entirely legitimate functions in Lebanon. That is why they are not part of this order. However, given all the information that we have to hand, as well as the advice that we have received and the discussions that we have had, it is right and proper in the context of the criteria set out in the Terrorism Act 2000 that we proscribe the entire military wing and not just the External Security Organisation. We will continue to maintain the distinction between that wing and the humanitarian, social and political parts of Hezbollah.
Mr. Ancram: I thank the Minister for giving way again. It is important that we get our distinctions correct. How does he define the military wing of Hezbollah? It is a movement that sometimes finds itself involved in terrorism or violence, but at other times is involved in politics.
Mr. McNulty: The right hon. and learned Gentleman takes a great interest in these matters and will know that there are distinct parts of Hezbollah. That is the information that we have. We proscribed the External Security Organisation in 2001, but we now want to proscribe the broader military wing. People involved in aspects of Hezbollah activities that, according to the criteria of the Terrorism Act 2000, are found to support or act as a supplicant to the entire military wing will be dealt with under the offences that I have outlined.
The right hon. and learned Gentleman makes an entirely reasonable point, and it is a consideration that the Government have to take into account. However, the criteria are clear, as are the offences that follow on
from them. The evidence that we have is also clear and, in that context, it is right and proper that I bring this order before the House. However, I can say unequivocally that Hezbollah’s military wing is providing active support to Shi’a militant groups in Iraq, including Jaysh al-Mahdi, which has been responsible for attacks on both Iraqi civilians and coalition forces. That includes providing training in the use of the deadly explosively formed projectiles used in roadside bombs. Although, as I have said before and for obvious reasons, I am unable to go into the full detail of the evidence, I can inform hon. Members that Hezbollah’s support for insurgent groups in Iraq was confirmed when coalition forces captured a senior operative, Ali Musa Daqduq, in Iraq on 20 March 2007.
Daqduq is a Lebanese national who served for 24 years in Hezbollah. In 2005, he was directed by senior Lebanese Hezbollah military commanders to train Shi’a groups in Iraq. Hezbollah’s military wing is also providing support to Palestinian rejectionist groups in the occupied Palestinian territories, including Hamas and Palestinian Islamic Jihad. The proscription of Hezbollah’s military wing will contribute to making the UK a hostile environment for terrorists and their supporters. It will signal our condemnation of the support that Hezbollah provides to those who attack British and other coalition forces in Iraq, as well as Iraqi civilians. It will support our international partners in disrupting terrorist activity in the occupied Palestinian territories. It will also send a strong message that the UK is not willing to tolerate terrorism, either here or anywhere else in the world.
I return to the point made by the right hon. and learned Member for Devizes (Mr. Ancram). The House will be aware that, alongside its military operations, Hezbollah performs legitimate political, social and humanitarian roles in Lebanon. Proscription is not targeted at, and will not affect, those legitimate activities, but it sends a clear message that we condemn Hezbollah’s violence and support for terrorism. We continue to call on Hezbollah to end terrorist activity, abandon its status as an armed group and participate in the democratic process on the same terms as all other Lebanese political parties.
I have said already that the Government recognise that proscription is a tough power that can have a wide-ranging impact. Because of that, there is an appeal mechanism in the legislation. Any organisation that is proscribed, or anyone affected by the proscription of an organisation, can apply to the Home Secretary for the organisation to be de-proscribed. If that request is refused the applicant can appeal to the Proscribed Organisations Appeal Commission, a special tribunal that reviews whether the Home Secretary has properly exercised her powers to refuse to de-proscribe an organisation. The POAC can consider the sensitive material that often underpins proscription decisions and a special advocate can be appointed to represent the interests of the applicant in closed sessions of the commission.
Mr. Ancram: I am grateful to the Minister for allowing me to intervene again. Has he consulted his French colleagues on the proscription of Hezbollah? They have invited members of Hezbollah to Paris for talks.
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