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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