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Bringing rights home has not been an easy legislative task. The Human Rights Act represents the first time—indeed, the only time—we have incorporated the text of an international treaty into our law. It works through
several different mechanisms. The statement of compatibility in section 19, for example, means that every Act must be compatible with it.
Section 6 is the linchpin of the protection that the Act provides. Subsection (1) makes it unlawful for a public authority to act in a way that is incompatible with a convention right. The only circumstances in which that obligation does not apply are specified in subsection (2). They are circumstances in which a public authority could not have acted differently owing to provisions of primary legislation, or was acting to enforce such provisions. Those exceptions ensure that the sovereignty of Parliament is respected.
As many Members will recall from the debates on the Bill 11 years ago, the concept of a “public authority” is not defined absolutely. That is, I think, at the heart of my hon. Friend’s Bill. Instead, section 6(3) provides that a public authority includes any court or tribunal, and
“any person certain of whose functions are functions of a public nature”.
Again, there are a number of exceptions. Section 6(3) makes it clear that “public authority” does not include either House of Parliament, or any person exercising functions in connection with proceedings in Parliament. However, it should be noted that that does not include the House of Lords in its judicial capacity, and that it will not include the Supreme Court when it starts work later this year. Section 6(5) also makes clear that a person is not a public authority in relation to a particular act if the nature of the act is private.
Despite those specific exceptions, the definition of “public authority” in section 6 represents a broad approach. That can be contrasted with the provisions in many other Acts, such as the Freedom of Information Act 2000.
Mr. Dismore: My hon. Friend is going through the whole of section 6. I presume that that is in order, Mr. Deputy Speaker, because otherwise you would have stopped her. The Bill, however, is very narrowly drawn in relation to that section: subsection (3)(b) is the only part to which it refers.
Bridget Prentice: I am perfectly aware of that. However, subsection (3)(b) is part of section 6, and I think that if we are to change part of that section it is incumbent on me to tell the House what the effect will be on the section and, indeed, the Act as a whole. Tinkering with one small part of an Act can make a very big difference to the way in which the Act will be interpreted elsewhere.
The broad approach to which I have referred was entirely deliberate. It was intended to provide human rights coverage that was both flexible and comprehensive. Generally speaking, two categories of body are caught by section 6(3). The first consists of “core” public authorities or bodies that are clearly public—for example, Government Departments, local authorities and the police. They are required to comply with convention rights in everything that they do. The bodies in the second category, about which I think my hon. Friend is most concerned, are often described as “functional” public authorities. They may be private companies, or charities that are exercising public functions. An example might be a private company running a prison on behalf of the Government. The way in which section 6 is drafted means bodies of that kind are also required to comply with the Human Rights Act in respect only of those specific public functions.
Mr. Dismore: In that context, will my hon. Friend tell us what attitude the Government adopted in relation to the case involving immigration removal centres and, in particular, the transport arrangements for detainees provided by a private sector company? I think it was GS4, although I may be wrong.
Bridget Prentice: I do not know the details of that case, but I will reflect on what my hon. Friend has said and consider it in some detail, following which I hope to be able to tell him and the House why the Government took a particular line in that instance.
Anyone who performs a function of a public nature will be obliged to respect people’s convention rights. That approach reflects the significant changes that have taken place over the past two decades in public service delivery; I hope I may be able to return to that later.
In the 1997-98 debate, the then Home Secretary, my right hon. Friend the Member for Blackburn (Mr. Straw), made it clear that the Government intended that a broad interpretation should be given to the concept of
“functions of a public nature”.
Those objectives were echoed in February 1998, when he argued that:
“The Bill had to have a definition of a public authority that went at least as wide and took account of the fact that, over the past 20 years, an increasingly large number of private bodies, such as companies or charities, have come to exercise public functions that were previously exercised by public authorities...it was not practicable to list all the bodies to which the Bill’s provisions should apply. Nor would it have been wise to do so. What was needed instead was a statement of principle to which the courts could give effect. Clause 6 therefore adopts a non-exhaustive definition of a public authority. Obvious public authorities, such as central Government and the police, are caught in respect of everything they do. Public—but not private—acts of bodies that have a mix of public and private functions are also covered.”—[ Official Report, 16 February 1998; Vol. 306, c. 773.]
David Howarth: The Minister has been speaking for 26 minutes now. We know she opposes the Bill, but we do not know why. The hon. Member for Huntingdon was very clear that he opposed the Bill because it imposed costs on business. I support the Bill, as does the hon. Member for Hendon. Can the Minister say in just a few words why she opposes the Bill?
Bridget Prentice: I hope that in a moment or two I will be able to give the hon. Gentleman some comfort by explaining why I am not prepared to accept the Bill as it currently stands.
Mr. Dismore: If the Minister is not prepared to accept the Bill as it stands, will she at least be prepared to allow it to pass into Committee so that it can be amended into a form that she might approve of?
Bridget Prentice: If I am allowed, I shall go into some detail as to why the Bill is unacceptable and would not, even with attempts to amend it, be a satisfactory way of dealing with the important issues my hon. Friend rightly raises.
Clause 1 would, in effect, wipe the slate clean in terms of the interpretation of section 6 of the Human Rights Act 1998. My hon. Friend has previously expressed his disappointment that the law in this area is uncertain, and I gently suggest to him that clause 1 would greatly increase that uncertainty. The Government are simply not prepared to accept that consequence at this stage. [Interruption.] Well, the list of factors has been drawn
from the speeches of their Lordships in YL. The only guidance that a court would actually have would be the words in the Bill. Therefore, it is significant that no account is given in clause 1 of the weight that should be given to each factor, or whether each factor points towards or away from any given function being a function of a public nature.
Mr. Dismore: The Minister has just said that the only guidance a court would have would be the words of the Act, but that is true of any Act. She has just given a reason for never passing any new legislation.
Bridget Prentice: Absolutely not; I refute that entirely. If my hon. Friend will reflect, he will remember that in debates on, for example, the Legal Services Act 2007 we made it clear which factors had greater weight than others, so that is not at all unusual in legislation. However, the facts as laid out in clause 1 of my hon. Friend’s Bill have not been weighted or prioritised, so it would be entirely a matter for the individual judge to make that interpretation. I cannot believe for a moment that that is what my hon. Friend intended. Indeed, the widely differing views in the case of YL indicate just how individual interpretation of the same factors can result in very different decisions. There is no indication that the approach outlined in clause 1 would resolve or significantly clarify the issue.
I was also asked what other reasons I have for opposing the Bill. Well, there are a number—
2.30 pm
The debate stood adjourned (Standing Order No. 11(2)).
Ordered, That the debate be resumed on Friday 16 October.
Business without Debate
renewable content obligation bill
Motion made, That the Bill be now read a Second time.
Bill to be read a Second time on Friday 16 October.
theft from shops (use of penalty notices for disorder) Bill
Motion made, That the Bill be now read a Second time.
Bill to be read a Second time on Friday 16 October.
fuel poverty (nO. 2) bill
Motion made, That the Bill be now read a Second time.
Bill to be read a Second time on Friday 16 October.
illegally logged timber (prohibition of sale) Bill
Resumption of adjourned debate on Question (26 June), That the Bill be now read a Second time.
Debate to be resumed on Friday 16 October.
home repossession (protection) bill
Motion made, That the Bill be read a Second time.
Bill to be read a Second time on Friday 16 October.
employers’ liability insurance bureau bill
Motion made, That the Bill be read a Second time.
Bill to be read a Second time on Friday 16 October.
pharmaceutical labelling (warning of cognitive function impairment) Bill
Motion made, That the Bill be now read a Second time.
Bill to be read a Second time on Friday 16 October.
land use (garden protection etc) Bill
Resumption of adjourned debate on Question (8 May), That the Bill be now read a Second time.
Debate to be resumed on Friday 16 October.
road signs (tourist destinations and facilities) bill
Motion made, That the Bill be now read a Second time.
Bill to be read a Second time on Friday 16 October.
protection of garden land (development control) Bill
Motion made, That the Bill be now read a Second time.
Bill to be read a Second time on Friday 16 October.
airport expansion (parliamentary approval) Bill
Motion made, That the Bill be now read a Second time.
Bill to be read a Second time on Friday 16 October.
british museum act 1963 (amendment) bill
Resumption of adjourned debate on Question (15 May), That the Bill be now read a Second time.
Debate to be resumed on Friday 16 October.
torture (damages) (nO. 2) bill
Motion made, That the Bill be now read a Second time.
Bill to be read a Second time on Friday 16 October.
Simon Hughes: On a point of order, Mr. Deputy Speaker. We have just seen 13 Bills on the trot objected to by the Government Whip. Is there any way we could discover whether objections are ever on a point of substance or whether they occur simply because the Government do not like private Members’ Bills?
Mr. Deputy Speaker (Sir Michael Lord): The hon. Gentleman is a very experienced Member of this House and knows precisely how these things operate. There may well be room for change or improvement, but it is certainly not for me to advocate it this afternoon.
Domestic Energy Users
Motion made, and Question proposed, That this House do now adjourn. —(Mr. Frank Roy.)
2.34 pm
Mr. Mark Todd (South Derbyshire) (Lab): I congratulate the Minister on his appointment to his post, but I shall reserve further congratulation until I have heard how he answers this debate. I could not have chosen a much more appropriate time to call for it, because in the past week Ofgem has published its report on complaint handling by energy companies, Consumer Focus has published a major report on energy pricing, and Ofgem has intervened to criticise aspects of that report. I shall discuss those events and link them to some constituency experience.
First, let me sketch where we have come from. Until October 2008 consumers concerned about the practices of their energy company could approach Energywatch to assist them in their complaints. During the long period in which British Gas struggled with its billing system, I made heavy use of Energywatch to tackle repeated errors and overcharging. It handled individual complaints and sought to champion consumer interests generally.
The Government decided to merge Energywatch with other consumer bodies to form Consumer Focus. They transferred to Ofgem—until then largely a regulator of competition within the energy sector—the task of oversight of complaint handling. The argument was that energy was a mature market: consumers could readily vote with their feet if they were unhappy, and companies should be the main focus of complaint handling. Presumably, it was argued that the existence of Energywatch, as a quasi governmental substitute, led companies to invest fewer resources in customer service and complaint handling.
Such a robust, market-centred strategy would have much to commend it if the underlying assumptions were right. Those would be that consumers had appropriate information to prompt choice; that transferring to another supplier was straightforward; that there were sufficient variations in price and customer service to make changing suppliers worthwhile; and that the companies’ handling of customers was of a sufficiently high standard as not to require assistance. None of those assumptions is true.
A small number of consumers switch suppliers, often playing the special offers. However, most of the market is inert, with people staying with whatever company inherited the supply from the former state provision on privatisation. Most consumers find it hard to make comparisons. The study by Which ? of consumer views on their bills showed widespread difficulty in understanding how the bills work and how consumers’ own behaviour might influence their bills. One customer said:
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