Joint Committee On Human Rights Eighth Report

Conclusions and Recommendations

1.  We are disappointed that the Government did not honour its commitment to take action to fill the gap in the protection offered by the Human Rights Act (HRA) in 2007, but now appears to have deferred taking such action. We are also dissatisfied that, instead of undertaking its proposed consultation "with appropriate despatch", as the Minister promised in June 2007, the Government now proposes to bring forward its consultation on this issue as part of its Green Paper on a possible British Bill of Rights and Responsibilities. (Paragraph 1.11)

2.  Our preference remains for the scope of the Human Rights Act to be clarified by means of a separate Act dealing solely with the wider issue of the meaning of 'public authority'. …we are dissatisfied that the Government proposes to deal with the wider problem in the context of its consultation on a British Bill of Rights. (Paragraph 1.12)

3.  We feel strongly that this issue should be debated in Parliament during the passage of the Health and Social Care Bill. We are also of the view that an interim solution, applying the Human Rights Act to certain regulated health and social care providers in England in certain circumstances, would be better than the current position and could also provide a suitable model for the devolved governments to consider following, should they wish to do so. Such a move would not constitute an amendment or modification of the Human Rights Act but rather would provide clarification as to its scope, in accordance with Parliament's original intention when the Act was passed. (Paragraph 1.14)

4.  We therefore propose, in the absence for the time being of a more general solution, a more limited amendment to the Health and Social Care Bill, designed to restore for this sector the original intention behind the HRA that, in essence, it should cover private sector providers of publicly funded services arranged pursuant to statutory powers. (Paragraph 1.18)

5.  We are also of the view that the regulations governing the operation of health and social care providers - dealing with matters including the training of staff and the handling of complaints - should make reference to the rights of service users. Clause 16 of the Bill already requires such regulations to secure the "health, safety and welfare" of service users. We recommend that the human rights of users should also be central to the operation of health care and social care providers and we suggest amendments to the Bill to achieve this. (Paragraph 1.20) In our view these amendments to the powers and duties of the regulator should be made in addition to our main recommendation that the Bill be amended to restore the originally intended scope of the HRA. Achieving effective human rights protection requires a combination of different measures operating in different ways to make human rights considerations more central to the decision-making process where appropriate. (Paragraph 1.21)

6.  We share the Government's view that private and voluntary sector providers of services in the criminal justice field, such as prisons and secure training centres, are functional public authorities for the purposes of the Human Rights Act. Nevertheless, this interpretation has not been tested by the courts following the YL judgment and the legal position will remain uncertain until a body of case law is developed. In our view, this is another strong argument for the Government to bring forward an interpretative statute dealing with section 6 of the Human Rights Act. (Paragraph 1.24)

7.  In our earlier Report on older people in healthcare we concluded that "the Healthcare Commission should not view the Human Rights Act as 'one of a large number of sets of regulations' to which it is subject" but instead "should regard the framework created by the Act as over-arching and fundamental to all its work". We regret that the Department of Health has failed to address this point and has resorted to restating the current position, whereby the Human Rights Act is seen as just another statute applicable to public bodies, demanding compliance rather than wholesale culture change. (Paragraph 1.27)

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