Human Rights Act 1998 (Meaning of Public Authority) Bill

May I say, Mr. Deputy Speaker, what a surprising pleasure it is for me, after two years of Trappist vows of silence preventing me from speaking at the Dispatch Box, to be doing so this afternoon? It is a particular pleasure because I was for a time the Minister with responsibility for care for the elderly, and for four and a half years in opposition, I was until two years ago the shadow Minister with such responsibility. Therefore, this is an area in which I have some interest—not from a lawyer’s point of view but from that of the clients and users, particularly those in care homes. This debate is very timely, because it is of course world elder abuse awareness day. It comes a day after the publication of a report by King’s College London and the National Centre for Social Research, funded by Comic Relief and the Department of Health, that highlights that more than 700,000 elderly people are abused in their own homes or in privately run nursing homes. The issue of care for the elderly in society is one of increasing importance, and this Bill has the potential to address a serious associated issue. As many Members have said over the years—that makes the point no less important—it is crucial that those who are more often than not the most frail members of our society have the proper protections and the dignity and quality of life that they deserve. We, as a civilised society, have a duty to ensure that they are protected and are given that quality of life. Currently, the Human Rights Act 1998 covers only public authorities and those performing public functions. The Bill, as I understand it, seeks to clarify the meaning of ““public authority”” as defined in section 6 of the Act. The Bill aims to insert a clause which would ensure that"““a function of a public nature includes a function performed pursuant to a contract or other arrangement with a public authority which is under a duty to perform that function.””" In plain man’s language, that means that the Act would then cover state-funded but privately run care homes, as well as state-funded, state-run ones. It would not impact on privately funded homes. My party supports in principle giving the Bill a Second Reading. We support the principle that services provided on behalf of local authorities by the private sector, using taxpayers’ money, should face the same level of scrutiny as any public provider would. In addition, we welcome the report, published in March, by the Joint Committee on Human Rights entitled ““The meaning of Public Authority under the Human Rights Act””, which provided many of the key recommendations in support of this Bill. However, there are a number of issues that we would like to discuss in Committee, should the Bill proceed, and which I will touch on shortly. Section 6(3)(b) of the Human Rights Act states that a ““public authority”” includes"““(a) a court or tribunal, and""(b) any person certain of whose functions are functions of a public nature””." Section 6 makes it unlawful for a public authority to act in a way that is"““incompatible with a Convention right.””" It does not provide a list of public authorities to which the Act is applicable, but it has been argued that, because privately run care homes are subcontracted to provide local authority services, they should be included in the definition. On introducing the Bill for its First Reading, the hon. Member for Hendon (Mr. Dismore) argued that the amendment to section 6 would not widen the definition of what constitutes a public authority, but rather"““be exactly on ‘all fours’ with what the then Lord Chancellor told Parliament was intended””—[Official Report, 9 January 2007; Vol. 455, c. 152.]" when the Human Rights Bill was introduced in 1998. This Bill does not seek to identify individual types of categories of public authority in line with the recommendations of the Joint Committee on Human Rights. The hon. Gentleman perhaps made a valid point when he said that the current situation has led to private care home residents being ““second-class citizens”” in certain circumstances given that they have to rely on interpreting a contract between a local authority and a care home manager to try to enforce their human rights. There are many strong arguments in support of the Bill. A key issue is that of care home closures, which the hon. Gentleman briefly mentioned. Under regulation 40 of the Care Home Regulations 2001, state-run and privately run care homes have to give reasonable notice of their intention to close, although no specific time period is mentioned and reasonable notice can mean different things to different people in different circumstances. The Bill would ensure that in future private care homes would not be able to close without ensuring continuation of care for their residents. That would be an important safeguard, welcomed by the Conservatives and, I trust, by other parties as well. It would also be welcomed by many charities, such as Age Concern, which has repeatedly expressed its dismay that private care homes can evict residents with no notice and can decide to close as a business without taking into consideration the needs of the residents for whom that institution is their home. All too often, that gets blurred in the debate, but care homes are the homes of those individuals who are resident there. We cannot and must not forget that. High-profile court cases have highlighted the need for the situation to be clarified. The 2002 case of R. (others) v. the Leonard Cheshire Foundation—commonly known as the Leonard Cheshire case—made the news when the judge, and latterly the Court of Appeal, ruled that the foundation could not be deemed to be a public authority within the meaning of section 6 of the Human Rights Act and that it therefore had the right to cease operations, meaning that residents had to be relocated in community-based units. A subsequent and very similar case of Johnson and others v. the London borough of Havering came to the same conclusion. However, the Court of Appeal expressed disquiet with the view that a privately run care home was not subject to the Human Rights Act and that the issue of care home closure was having to be decided on a case-by-case basis. That would suggest that there is a clear argument that the situation needs the clarification that the Bill would enable. However, should the Bill proceed further, some issues will need to be given more consideration than today will allow. It is understandable that independent care home providers are concerned by the Bill’s implications. The English Community Care Association outlined many of its concerns about the proposal when it submitted evidence to the Joint Committee while it was forming its report, which was published in March. Some of the concerns included the widespread lack of understanding about the Human Rights Act itself and that an extension of it would not give residents and their families any more confidence in the care system. In addition, concerns have been raised by care providers, as well as others such as the Lord Chancellor, that the Bill could drive private providers out of the market. No detailed analysis has been conducted. That will need to be undertaken if the Bill is to progress further, as will a full regulatory impact assessment. All Members rightly believe that more must be done to provide support, protection and rights to those living in care homes or being provided with care, because they are reliant on us for those protections. However, we must not take a broad-brush approach and tar everyone. The vast majority of those who provide care for our elderly citizens—our parents or siblings, perhaps—are genuine and concerned people who give the best care they can by providing the finest quality of life and environment for the people who have made their care homes their homes.