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The Health and Social Care Act 2008 reverses the effect of the YL judgment on care homes. It states that any person who provides accommodation with nursing or personal care in a care home for an individual under arrangements made under the relevant statutory provisions is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act to be exercising a function of a public nature in doing so. Given the changes in the 2008 Act, it seems to us that this proposal is a significant proposed extension of the scope of the HRA.
As the hon. Gentleman said, according to the Joint Committee on Human Rights, of which I appreciate he is a distinguished Chairman, there is an unresolved problem with the meaning of public authority in the Human Rights Act, which should be able to be resolved by passing the Bill. However, it is clear that questions remain unanswered about amending or clarifying the meaning of the term, and they prevent us from supporting the Bill.
There needs to be clarification of which bodies would be likely to be caught by the extension of the definition. Is the hon. Gentleman sure that what he described in his opening remarks covered the Bill’s scope fully? Many private bodies receive state funding. If the Bill were passed, would an employee of one of those bodies be able to use rights under the Human Rights Act in employment cases? It is clear that Parliament did not intend that publicly funded residents living in private sector establishments would not be covered by the Act.
Questions have to be answered about the scope of the Bill. There is a risk that any care provider involved in a private transaction could be brought within the scope of the Human Rights Act.
Mr. Dismore: Will the hon. Gentleman expand on that? I fail to see how that could be the case. There is an argument among those involved in the care homes fraternity and relevant non-governmental organisations that it should be, but my Bill has been drawn up to ensure that that does not happen, as was the previous change in the law in 1998. That is another issue to consider, but my Bill is not intended to address it.
Mr. Djanogly: I am pleased that the hon. Gentleman makes that clarification, but we have concerns and do not want uncertainty. We do not want a pharmacy, or even a bank, to come within the definition of “public authority” in relation to the Human Rights Act. It is clear that Parliament did not intend that to be the case when the Act was passed, and if we accepted the Bill we could be acting contrary to the intention behind the Act and introducing a whole raft of unnecessary regulation of private bodies engaged in some way with public functions.
I do not think that I need remind the House that since 1998, Labour’s new regulations have cost the British taxpayer in excess of £76 billion. We would be negligent in our duty to protect the interests of the British people if we subjected them to further and unnecessary regulation, particularly as we have not had the opportunity to conduct in-depth analysis and scrutiny of the far-reaching proposals in the Bill.
It is clear to us that the Bill’s scope is simply far too wide. The question is not simply whether a private care home comes under the definition of a public authority when providing an elderly person with care funded by
the local authority. The Bill has the potential to go much further, but the case for that has not been made. Parliament cannot afford to make a mistake on the meaning of public authority, and business cannot afford that either.
We must consider this important issue within the wider context. As far back as 2003, service providers expressed concerns about widening the definition. A number were worried that it would jeopardise both the perceived and actual status of organisations such as housing associations as being independent of Government. Furthermore, many service providers believe that by being labelled a public authority, they may be prevented from raising money outside Treasury controls, for instance.
We cannot simply redefine public authority in the broad manner that the hon. Gentleman advocates, especially as there is an extremely high risk that it will lead to unnecessary regulation of businesses that, let us face it, are in the grip of one of the worst recessions we have experienced. Conservatives must also assess his proposals in the context of the future Bill of Rights, with which we intend to replace the Human Rights Act.
To my knowledge, there has been no assessment of the costs of implementing this Bill. We believe that they would be significant. This is not the time to be putting a significant burden on business and on the taxpayer, particularly as no one knows what the cost will be and we are experiencing a deep recession. The truth about the real cost of widening the definition of public authority in the Human Rights Act must be determined before anyone can even contemplate supporting the Bill.
We support widening the definition of public authority to include private residential care homes where publicly funded patients are resident. However, the Bill goes much further, creates too many possibilities for labelling private sector enterprises as public authorities and does not take it into account that the cost in time and money for those private sector enterprises could be immense.
Mr. Dismore: The hon. Gentleman focuses on the cost to business. Has he considered the cost to the consumers of those services that businesses provide? The Human Rights Act requires, for example, elderly people and children in looked-after accommodation to be treated with dignity and respect. What cost is involved in that?
Mr. Djanogly: The hon. Gentleman should consider the cost not only to business but to the taxpayer, particularly as we are talking about the public sector. However, concentrating on the specific examples that he gave might be a better way of proceeding than through the general sweeper with which he has presented us today.
2 pm
The Parliamentary Under-Secretary of State for Justice (Bridget Prentice): The hon. Member for Huntingdon (Mr. Djanogly) finished so succinctly that I was almost taken unawares.
I congratulate my hon. Friend the Member for Hendon (Mr. Dismore) not only on securing Second Reading of a private Member’s Bill, but on his persistence in pressing a particular issue. He has brought to the forefront of our minds the Human Rights Act 1998, and it was interesting to hear the hon. Gentleman put on record again that the Conservatives would abolish it and replace it with something else.
The Human Rights Act may be a technical document, but it is not a mere technicality. It is a difficult and sometimes sensitive subject and, for reasons that I shall detail shortly, I must tell my hon. Friend that I cannot support his approach in the Bill. However, let me make it clear at the outset that there can be no doubt about the importance of the issue that he has raised. I agree that it is fundamental to the operation of the Human Rights Act—that is why the Government are implementing an effective programme of action to tackle it. I shall explain that in detail in a moment.
I also want to put it on record that my hon. Friend is the Chairman of the Joint Committee on Human Rights. He has been an assiduous Chairman and a vocal champion in this House of human rights—a very good thing, too. Human rights matters are sometimes perceived as arguments that are best left to lawyers and judges—I am conscious of the fact that I am the only person speaking in the debate who is neither—and that may be why they tend to be raised more frequently in the other place. Through my hon. Friend’s amendments to Bills, he has put human rights on the agenda of the elected House—where they belong, at the heart of our democratic process.
My hon. Friend’s commitment is clear. He has raised the public authority question in at least three Government Bills in this Session alone, and the measure is the third Bill that he has presented on the subject. Before I go into detail about the Government’s response, I want to deal with some of the questions that he asked.
My hon. Friend asked about the commitment of my hon. and learned Friend the Solicitor-General to take action in the calendar year 2007 while in her previous post. Her commitment was fulfilled late in 2007, when the then Minister with responsibility for care services tabled an amendment to the Health and Social Care Bill to reverse the effect of the YL judgment.
My hon. Friend also asked whether the Government would intervene in the Weaver v. London and Quadrant Housing Trust case, should there be an appeal to the House of Lords. Obviously the detail of that case must remain sub judice, so it would be irresponsible of the Government to make a decision until we can assess what issues will be raised on appeal.
Mr. Dismore: If the Weaver case had been sub judice, I would not have referred to it. It is not sub judice, because the Court of Appeal has finished with it and there are no current proceedings unless and until there is an appeal to the House of Lords.
Bridget Prentice: My hon. Friend makes a perfectly valid point. My response to whether we would intervene in that case and on which side would very much depend on what issues were raised by an appeal. We would then have to assess whether any intervention would be merited. At this stage I cannot comment further on the case.
The third thing that my hon. Friend asked—I think that I am going to disappoint him again—was what the term “soon” meant when Ministers say that some consultation or other will take place soon. There is also the problem of the difference between “soon” and “in the near future”, and other phrases of that ilk. The consultation on the subject that my hon. Friend has raised will take considerable time and effort if we are to do it properly. We therefore do not expect “soon” in this
context to mean before the summer recess, although how soon the consultation will take place thereafter is another matter altogether.
Mr. Dismore: If “soon” does not mean before the summer recess, which most people would think it did, does it mean before we come back in October?
Bridget Prentice: My hon. Friend may be trying to lead me down a path down which, at this stage, I do not wish to go. As I have said, to do it properly the consultation will take some time to put together. I will, of course, come back to him and the House when I have asked my right hon. Friend the Minister of State, the Member for North Swindon (Mr. Wills) whether he can be more precise about how soon “soon” might be and, specifically, whether it will mean before the end of the recess or before the beginning of the next Session.
I pay tribute not only to the Chairman of the Joint Committee on Human Rights, but to the Committee as a whole. The scrutiny that it gives legislation is excellent and forms a vital part of ensuring that we take human rights fully into account when we make law in this place.
Mr. Dismore: I also posed my hon. Friend a fourth question. What remedies are available to the poor chap with the disabled scooter who is not allowed on the Newcastle metro because of its blanket ban?
Bridget Prentice: When I heard that, my initial reaction—the reaction that I think every Member of this House would have—was that it was an appalling decision by that organisation. Without being an expert on the subject or in a position to give my hon. Friend chapter and verse, I would have thought that there ought to have been some remedy through the Disability Discrimination Act 1995, if not the Human Rights Act 1998. Again, however, I shall be happy to look into that further, so that we can ensure that no one with a disability is prevented from travelling on what is, essentially, public transport, so that they are allowed to conduct their activities in the same way as those who are able bodied.
The Joint Committee’s detailed reports do not always hit the headlines in the way that some other Select Committee reports do. Furthermore, the Government do not always agree with every opinion that it expresses. That is to be expected; the democratic debate would be all the poorer if that were not the case. However, I commend the Committee’s expertise, and the attention that it gives to the detail of our legislation, because that clearly benefits the process of making legislation. That is why our Joint Committee is seen across Europe as a model of excellence that others look to and seek to emulate.
The Bill is functionally identical to the one that my hon. Friend introduced in December 2007. That Bill was not reached on the day that it was set down to receive its Second Reading in May last year, so I am pleased that, 13 months later, we now have the opportunity to respond to it. It would add an additional layer of interpretation to section 6 of the Human Rights Act 1998. It would not amend the Act, but it would sit alongside it. It is not entirely clear whether it would erase the
existing case law on the interpretation of section 6, which I shall discuss later, or whether it is intended only to influence its future development.
Clause 1 sets out a list of factors that must be taken into account when determining whether a particular function is a function carried out by a public authority within the meaning of the Human Rights Act. My hon. Friend referred to the fact that two of the dissenting judgments had, in effect, given him that list of factors. Each of the eight factors is a test for the publicness, if you like, of a function. Clause 2 adds a further test for publicness, based on the involvement of public expenditure. The clause itself states that this test is for the “avoidance of doubt”. However, the test is not consistent with the current jurisprudence on section 6, or with any conception of how section 6 was intended to operate.
As I said, the current Bill is, with a few exceptions, the same as that introduced by my hon. Friend in the last Session. Further to this, however, it is worth noting that it differs considerably from the first approach that he took to this subject, in a Bill that was introduced in January 2007. That Bill was debated on Second Reading in June 2007. It was a much shorter Bill than this one—I think that it was the one that the hon. Member for Huntingdon (Mr. Djanogly) felt more comfortable with—and instead of the list of factors and the additional test in clause 2, it had just one simple test, based on the contractual relationship of the body performing the function to a public authority.
The Solicitor-General, my hon. and learned Friend the Member for Redcar (Vera Baird)—then the Parliamentary Under-Secretary of State for Justice—responded for the Government in that debate, which took place just a few days before the decision of the House of Lords in the YL case, about which I shall say more later.
Mr. Dismore: My hon. Friend questioned my interpretation of the assurance given by my hon. and learned Friend the Member for Redcar, by saying that the Government had honoured that commitment by the action that they took in relation to the YL case at the end of 2007. As my hon. Friend has just said, however, the YL case was decided afterwards, so that assurance related to the generic problem, and not just to the YL issue, which remains unresolved.
Bridget Prentice: I stand by the position that we believe that the amendment in the Health and Social Care Act 2008 responded to the issue that my hon. Friend raised at the time.
It might assist the House if I were to explain some of the background to the Bill. I want to do this because there is sometimes a perception that issues such as these are merely lawyers’ arguments, and that they have no relevance to the everyday lives of people in this country. I hope, however, that this debate we will help us to see that the Human Rights Act 1998, for all that it is misrepresented and criticised, is a vital piece of legislation. The issue that my hon. Friend raises through the Bill goes to the heart of it.
The European convention on human rights was agreed in the aftermath of the second world war. It drew its inspiration from the universal declaration of human rights proclaimed by the General Assembly of the United Nations in 1948. The rights protected by the convention
have a long British pedigree, rooted in the Magna Carta, the Habeas Corpus Act of 1679 and the Bill of Rights of 1689. Those rights form an essential part of our constitution and have been part of our common law for many centuries.
Sir Edward Gardner, QC, a senior Conservative MP who first called for the incorporation of the convention in 1987, said that the language of the convention
“is language which echoes down the corridors of history. It goes deep into our history and as far back as the Magna Carta.”
The convention was in large part, of course, the work of British jurists—not least of Sir David Maxwell Fyfe who later as Lord Kilmuir became Lord Chancellor—so while the convention may be European by name, it is very much British by heritage. In some respects, given that history, one wonders why the Conservatives are so keen to unpick so much of what is in the Human Rights Act.
The United Kingdom was one of the first countries to sign the convention in 1950 and to ratify it the following year. In 1966, we accepted the right of individual petition to Strasbourg. Then, of course, a person seeking to claim that their rights had been breached by a party to the convention applied to the European Commission on Human Rights. Since the 11h protocol to the convention came into force in November 1998, individuals have been able to apply directly to the European Court of Human Rights.
In spite of having been so instrumental in the convention’s development, it sadly took another 50 years before we incorporated it into our domestic law. Until 2000, UK citizens had to join the back of a very long queue if they wanted to access their rights at the European Court of Human Rights in Strasbourg. I am very proud, as I am sure is my hon. Friend the Member for Hendon, to be part of the Government who introduced the Human Rights Act in 1998. By putting that Act on the statute book, we in a sense brought rights home, making it possible for the first time for people who felt that their rights had been breached to take action in our domestic courts. Those rights—the convention rights—were drawn directly from the rights under the European convention itself.
There are those who have taken to using the term “human rights” in a disparaging way, so let me remind the House of the sort of rights that we are talking about. We are talking about the right to life, the right to freedom from torture or inhuman or degrading treatment, the right to freedom from slavery—
Mr. Deputy Speaker (Sir Michael Lord): Order. I am reluctant to interrupt the Minister, but I remind her that we are debating a Bill that is intended to clarify the meaning of “public authority” in section 6 of the Human Rights Act 1998. At the moment, however, she is talking about generalities, whereas the Bill is rather more specific than that.
Bridget Prentice: Thank you, Mr. Deputy Speaker. I was, I hope, trying to set this particular Bill in the context of the Human Rights Act, although of course I accept your point.
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