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Human Rights Act 1998 (Meaning of Public Authority) Bill
1.35 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 ensure that when the private sector carries out public functions—for example, by providing contracted-out services—the Human Rights Act 1998 will apply. This is my third attempt to introduce the Bill. That pales into significance when one considers that I am on my seventh attempt with the Crown Employment (Nationality) Bill. The persistence with which I keep bringing back the Human Rights Act 1998 (Meaning of Public Authority) Bill shows its importance and the fact that the problems have not gone away.
The Bill seeks to reinstate unambiguously the wide interpretation of “public function” that was understood to be the meaning of section 6 of the Human Rights Act 1998 when it was first passed. That interpretation has now been cancelled out by court judgments. My intention is to ensure that human rights protections apply comprehensively, directly and consistently to all those who receive public services from private providers, including the most vulnerable members of our society. The Joint Committee on Human Rights, which I have the honour to chair, is extremely concerned about the issue and continues to press the Government to resolve it.
The Human Rights Act brought home the rights set out in the European convention on human rights. Previously, British people had to go to Strasbourg to challenge breaches of their human rights. However, the protection of the Act has been less comprehensive than Parliament intended because of our judges’ interpretation of the meaning of “public function”. Under section 6, it is unlawful for a public authority to act in way that is incompatible with a convention right. The Act states that a public authority includes
“any person certain of whose functions are functions of a public nature”.
During the passage of the Human Rights Bill, the then Home Secretary and then Lord Chancellor made clear that privatised or contracted-out public services were intended to be within the Bill’s scope. We were told that the “public function” definition emphasised the functions rather than the institutional status of the body performing them. Since the Act came into force, a series of court cases has considered whether a specific private company or organisation that provided services came within the ambit of the Act. The result has been to disregard utterly the wide interpretation that was originally intended, and to exclude the private sector completely.
In 2002, the local authority-funded residents of a care home run by Leonard Cheshire, a private charity, wanted to challenge the decision to close their home. They claimed that the decision broke their right to respect for their home under article 8 of the European convention. The Court of Appeal found that the care home was not a public authority under section 6, so the residents could not enforce their rights, even though the council still had its obligations to them. In a more recent case, now known as the YL case, the Law Lords put the matter beyond doubt.
YL was an 84-year-old lady with Alzheimer’s. The council in Birmingham organised her care in a private home. Her family raised concerns about her treatment, and as a consequence, the home gave Mrs. YL 28 days’ notice to quit. Care home residents have no security of tenure whatever. That is perhaps a more important separate issue. There was evidence that Mrs. YL’s condition would deteriorate if she was transferred to an unfamiliar setting, so the decision to evict her was challenged under section 6 of the Human Rights Act. However, the Law Lords ruled that care homes run by private companies, even when they have a contract for the placement of residents at public expense, are not public authorities for the purposes of the Human Rights Act.
In 2004, the Joint Committee on Human Rights concluded that the test being applied by the courts in such cases was “highly problematic”. It resulted in many instances in which an organisation stood in the shoes of the state but did not have the state’s legal responsibilities under the Human Rights Act.
David Howarth (Cambridge) (LD): I congratulate the hon. Gentleman on his persistence in bringing back the Bill, which I fully support; I have said so publicly, in debate, on several occasions. In fact, I support it so much that I might not even bother to try to catch your eye, Mr. Deputy Speaker. That will give the Minister more time to explain the Government’s position. May I ask the hon. Gentleman about the YL case? In that case, the local authority arranged for the client to go into the home, but its duties under the National Assistance Act 1948 did not really go beyond that. Is it his intention, in this draft of the Bill, to reverse the YL case as well as the Leonard Cheshire case?
Mr. Dismore: The responsibility of the local authority went beyond arranging the client’s care. The local authority was also paying for it. The consequences in the YL case have been rectified, as I shall describe in a moment.
The point that I was making was that without the state’s legal responsibilities under the Human Rights Act, there was a serious gap in the protection that the Act was intended to offer. The judgment in the YL case made matters worse, creating a problem with the immediate practical implications of much wider significance, because so many services previously delivered by public authorities are privatised or contracted out. The case of Mrs. YL was resolved amicably and to the family’s satisfaction after the decision of the House of Lords. As far as she was concerned, there was no longer a problem, but the issue remained until recently.
The implications of the YL case extend across the range of especially vulnerable people in society—not just elderly people in private care homes, but tenants in housing association properties, those with physical or learning disabilities, or looked-after children, for example. In November 2005 the Government published guidance to local authorities on contracting in the light of the Human Rights Act. My Committee found that guidance alone could not solve a problem, and the guidance has proved utterly useless. It dissuaded procurement officers from taking a positive approach. No model process was recommended, nor model or standard contract terms.
The guidance was badly written and difficult to follow, and was unpublicised. It lacked accessibility. It was written in highly technical language and 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. Local authorities were generally unaware even of the existence of the guidance. Guidance can never be a substitute for the direct application of the Human Rights Act to service providers.
The Government strategy of intervening in court cases has also proved utterly unsuccessful, following the YL judgment. The legal position for other services is now extremely uncertain and must not be left to the vagaries of judicial interpretation. There is an urgent need to ensure that our human rights law clearly and unambiguously protects vulnerable people. My Committee’s report on the treatment of the elderly in hospitals and care homes drew attention to appalling evidence of woeful neglect, lack of dignity and respect, and ignorance of the human rights of the elderly.
The then Under-Secretary of State for Health, my hon. Friend the Member for Bury, South (Mr. Lewis), who had responsibility for care services, and my right hon. Friend the Minister of State, Ministry of Justice, who has responsibility for human rights, both agreed that the position was anomalous and should be addressed. My hon. Friend the then Under-Secretary of State for Health told me in a written answer on 13 November 2007:
“Publicly funded residents of private residential and nursing homes should be covered by the 1998 Act and I believe that that was Parliament’s original intention . . . I shall consider what instructions we can give to the regulator to ensure that homes, including independent-sector homes, are regulated on the basis of their meeting the requirements of the 1998 Act.”—[ Official Report, 13 November 2007; Vol. 467, c. 526-27W.]
In evidence to my Committee two years ago, my right hon. Friend the Minister with responsibility for human rights said:
“We will start addressing this issue in the consultation process on the British Bill of Rights and Duties which is beginning early in the new year”—
that is, early in 2008. As we now know, that did not happen. The consultation on the Bill of Rights still has not begun, though the Green Paper has been published. Hopefully the consultation will begin later in the year.
However, we also now know that the consultation will not include this issue. We are now told that it will be the subject of a separate consultation. During last Thursday’s debate in Westminster Hall on my Committee’s report on the UK Bill of Rights and Freedoms, I was told by the Minister with responsibility for human rights that the consultation would begin “soon”, but he would not be drawn on what “soon” meant. That is the sort of language that we hear from Ministers who want to be relatively vague. When my hon. Friend replies to the debate, perhaps she can tell us whether “soon” means before the recess.
My hon. Friend the then Under-Secretary with responsibility for care referred to regulators, but I am not persuaded that the problem can be rectified in that way. The Health and Social Care Bill provided the opportunity to address the specific anomaly identified in the YL case. The Government accepted my Committee’s arguments that the Bill should be amended to ensure
that providers of health and social care should be brought within the Human Rights Act, and that indeed happened.
Although that approach provided a short-term fix for the immediate victims of cases similar to that of YL, however, it did not resolve the underlying bigger and wider issue. We need a legislative solution to achieve the broad scope of the Human Rights Act originally envisaged by Parliament. In the absence of that comprehensive approach, every time there is a Bill that creates powers to contract out services, there is interminable and regular correspondence to departmental Ministers from me, on behalf of the Joint Committee on Human Rights, seeking assurances that the Act will apply. I am forever tabling amendments on behalf of my Committee to ensure that the application of the Human Rights Act to the service concerned is debated and considered.
There is also regular litigation. The more recent case concerned the applicability of the Human Rights Act to privatised custody transport services and the rights of detainees in immigration removal centres. I understand that the case has now been settled, but the terms of the settlement are not clear. Given that one of the defendants was the Home Office, perhaps the Minister can enlighten us on what the terms of the settlement actually were.
David Howarth: I thank the hon. Gentleman for giving way a second time. There is another problem. If he is forced to try to amend each Act one at a time, the courts might say that that confirms their general approach that unless a particular Act gives an exemption or changes the rule in respect of itself, the general rule will be that the Human Rights Act does not apply—hence the great necessity for the hon. Gentleman’s Bill.
Mr. Dismore: The hon. Gentleman makes an important point. In practice, the YL case has made that pretty clear anyway; I am not sure whether our having to amend Acts one at a time will particularly affect the outcome of any court cases. However, it is certainly time-consuming for my Committee, for me and the Departments concerned to have to consider the issue every single time and make sure that it is reflected in the explanatory notes, where it is usually forgotten about, or in amendments that usually end up being moved in the other place because the issue had not been thought about at an earlier stage.
The case of Weaver v. London and Quadrant Housing Trust, which is about the applicability of the Human Rights Act to registered social landlords, has been under way for two years. The High Court said that the Human Rights Act applied in housing management and lettings, a view more or less upheld in the Court of Appeal. Although no petition for permission to appeal has been lodged with the House of Lords, I understand that such a move is likely to follow. If there is a Lords appeal, will the Government seek to intervene—and if so, on which side?
Yesterday, I spoke at the British Institute of Human Rights seminar on the applicability of the Human Rights Act to private sector providers. At the start, we saw a video of a disabled person who had been forbidden to take his disability scooter on the Newcastle metro, which has a blanket ban on them. He has no way of challenging that; if the Human Rights Act applied to contracted-out public transport, which of course is a
public service, he would have had a remedy to question that questionable decision. I ask the Minister what his remedy would be in other circumstances.
In their evidence to the Joint Committee on Human Rights inquiry into business and human rights, the Government said:
“It is clear both in law and practice when a function should be considered a function of a public nature. It is only at the very margins of the concept that certainty may not exist. However, such marginal uncertainty would be an inevitable consequence of the duty having been defined in any manner other than by reference to a list of those subject”
to the Act. That was certainly not the view of those at the seminar yesterday—people who are very involved in the issues. I certainly do not agree that the current position is clear. If it were, litigation on mainstream issues, such as the position of prisoners or tenants of registered social landlords, would not occur; they are major, mainstream issues. Even if the issue were at the margin, which I do not accept, the clearer definitions would at the very least reduce the level and extent of uncertainty.
My Bill adopts the approach suggested by the eminent jurist, Baroness Hale, in the minority judgment, with Lord Bingham, on the issues in the YL case. The judgment sets out a list of factors that should be taken into account. Clause 1 sets out that list of criteria, against which a given service can be judged—the “function”, in Human Rights Act language—to determine whether the body delivering that service is a public authority, for the purposes of the Human Rights Act. Clause 2 makes clear that the service—not the legal status of its provider or the basis of the arrangement under which it is delivered—is the determining factor. That provides a simple solution to what is a simple problem to resolve.
In June 2006, the then Lord Chancellor made the extraordinary proposition that a “widening” of the definition of “public authority” could have the effect of driving private providers out of the market. I say that it was extraordinary, because it would be not 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 users of services contracted out to the private sector are not to have the right to challenge human rights abuses in our courts. That makes them second-class citizens—and in growing numbers, as local authorities continue to contract services out. The contractor’s commercial interests are put before the decent treatment of the vulnerable. I hope that that is not the official position of the Government at present. Indeed, that position was rejected by the former Prime Minister, Tony Blair, when I questioned him about it during a Liaison Committee meeting in February 2007. The Government should not toy with the idea of settling for narrowing the scope of the Human Rights Act in any sector.
As I said, I proposed similar Bills in the previous two Sessions. On Second Reading the first time round, the then Minister, my hon. and learned Friend the Member for Redcar (Vera Baird), said:
“We are committed to taking action this year”.—[ Official Report, 15 June 2007; Vol. 461, c. 1047.]
When I pressed her, she said that she meant “this calendar year”. I am disappointed that despite that commitment, more than two years later there is still no
decision on how to resolve the chaos of the YL case and no plan for legislation to solve the problem comprehensively. Time is of the essence for vulnerable people who ought to benefit from the full protection of the Human Rights Act but are currently denied it, no matter who provides the public services to them. The Government are not moving quickly enough to deal with this problem. I therefore hope that the House will give my Bill a Second Reading today.
1.50 pm
Mr. Jonathan Djanogly (Huntingdon) (Con): I congratulate the hon. Member for Hendon (Mr. Dismore) on his persistence in supporting his cause, although we shall not be supporting him on this occasion.
Previous incarnations of this Bill and its subject matter, including the lengthy deliberations on the definition of a “public authority” by the Joint Committee on Human Rights, have often focused on whether private care homes come under the definition of a public authority when providing care to an elderly person funded by the local authority pursuant to its statutory duties. Conservative Members supported the concept of extending the definition to private care homes in that context. However, we have reservations about the scope of this Bill, as it goes much wider, with an unknown regulatory impact on private bodies engaged in public functions.
Let me go into a bit of the background. Section 6 of the Human Rights Act 1998 makes it illegal for public bodies to act in a way that is incompatible with a convention right. The definition of a public body is a broad one, and includes a court or tribunal and
“any person certain of whose functions are functions of a public nature”.
The Act allows a person who claims that a public body has acted, or proposes to act, in a way that is made unlawful by section 6 to bring proceedings against the body under the Act. However, they can do so only if they are, or would be, a victim of the unlawful act.
Mr. Dismore: The hon. Gentleman referred to the need for an impact assessment. As my Bill proposes what was the original intention of the Human Rights Act, the original impact assessment for the Human Rights Bill, as it then was, will be exactly the same as it would be for this Bill.
Mr. Djanogly: I think that this Bill significantly extends the issue, and we would certainly want to see a full impact assessment were it to be taken any further.
When the Human Rights Act was passed in 1998, it did not seek to specify an exact list of what constituted a public authority. A large number of cases since then have been involved with privately run care homes that are subcontracted to provide local authority care. As the hon. Gentleman said, in the case of YL v. Birmingham city council in 2007, a majority of the House of Lords held that a private residential care home was not performing a public function for the purposes of the HRA when providing services to an elderly person funded by the local authority pursuant to its statutory duties. However, I appreciate that the Joint Committee on Human Rights has consistently taken the view that it was clear from the HRA that this was meant by Parliament in 1998 to be included within the Act’s definition of public function.
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