Joint Committee On Human Rights Eighth Report


The Committee draws the special attention of both Houses to the Health and Social Care Bill. Its provisions have potentially significant human rights implications about which the Committee raised questions with the Minister. The correspondence is published as appendices to this Report.

In this Report, the Committee recommends amendments to the Bill to ensure that private (or voluntary) sector care homes which accommodate publicly-funded residents are brought within the scope of the Human Rights Act (HRA) and to implement recommendations in its earlier Report on the human rights of older people in health care (paragraphs 1.1-1.5).

During the passage of the Human Rights Bill it was clear that Parliament intended the Bill's requirement of public authorities to act compatibly with Convention rights to cover private-sector providers of publicly-funded services. But a series of court judgments has narrowed the scope of the Act. In its Report of March 2007 on the Meaning of Public Authority in the HRA, the Committee called for a new statute to reinstate the original intention of the Human Rights Act. Ministers agreed that action was needed. The Committee is dissatisfied that the Government has deferred action and proposes only to consult on the issue in its Green Paper on a British Bill of Rights and Responsibilities (paragraphs 1.6-1.12).

Although the Committee prefers a general solution to clarify the meaning of 'public function' in the HRA, it also sees the need for an interim solution in the Health and Social Care Bill. The Committee is sympathetic in principle to an amendment moved in Committee to make all providers of health and social care public authorities for the purposes of the HRA. But this may go beyond what Parliament intended in the HRA and in the Committee's view should be debated in the context of amendment or clarification of the HRA itself (paragraphs 1.13-1.17).

The Committee therefore proposes, in the absence for the time being of a more general solution, a limited amendment to the Health and Social Care Bill to restore for this sector the original intention behind the HRA. It also considers that regulations governing the operation of health and social care providers should refer to the rights of service users and puts forward amendments to this effect (paragraphs 1.18-1.21).

The issue of the scope of the HRA can also affect provision of public services by private (or voluntary) organisations across a wide range of Government activity. The Committee shares the Government's view that private providers of services in the criminal justice field are functional public authorities for the purposes of the HRA. But the fact that this has not been tested in court is in the Committee's view another strong argument for the Government to bring forward an interpretative statute dealing with section 6 of the HRA (paragraphs 1.22-1.24).

The Committee also recommends amendments to the Bill to ensure that the proposed new Care Quality Commission adopts a human-rights-based approach to its work; takes account of provision to users of health and social care services of information about human rights and advocacy services; and is capable of dealing with individual complaints and has a role in overseeing complaints procedures (paragraphs 1.25-1.37).

The Committee also recommends amendments to oblige the Secretary of State to prepare and publish care standards, to ensure that such standards relate to health and social care in their entirety and to provide an indicative list of the content of such standards (paragraphs 1.38-1.43). It also recommends amendments providing for the inclusion in the qualifications of health and social care professionals of a basic understanding of HRA requirements (paragraphs 1.44-1.45).

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