Human Rights Act 1998 (Meaning of Public Authority) Bill

I welcome the contribution made by the hon. Member for West Chelmsford (Mr. Burns), who has a good deal of experience to contribute to the debate. I also congratulate my hon. Friend the Member for Hendon (Mr. Dismore) not only on bringing in the Bill but on his rigorous and resolute work on human rights generally through his role as Chair of the Joint Committee on Human Rights. One of the Government’s first acts when they came into office was to introduce the Human Rights Bill, and since the Act came into force in 2000, people in the UK have been able to enforce their rights and claim their remedies in British courts in front of British judges, which has greatly reduced the need to go to Strasbourg. Alleged breaches of rights can be tested more quickly and more easily, and there has also been a significant impact on policy development. The Bill highlights an important issue that has arisen as a result of the courts’ narrow interpretation of part of the Human Rights Act 1998. During the passage of the Human Rights Bill, the Government intended that public functions in section 6 should be interpreted widely, to give effective protection to individuals whose rights had been breached. Organisations that are not covered by section 6 are not obliged to act compatibly with the convention rights. The then Home Secretary, my right hon. Friend the Member for Blackburn (Mr. Straw), made it clear that the definition of ““public authority”” had to take"““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.””—[Official Report, 16 February 1998; Vol. 306, c. 773.]" However, as a consequence principally of the Leonard Cheshire case to which both the previous speakers have alluded, things have not worked out in that way at all. As a result of that case law, private companies that deliver the functions of a public authority under contract are not always obliged to respect the convention rights. This particularly includes situations in which private care providers act on behalf of local authorities. It has been made clear that care standards apply to private and public bodies, and that public authorities are under an obligation under the Human Rights Act—as they are undoubtedly public bodies—to take appropriate steps to ensure that those in care are safe. However, following the Leonard Cheshire case, those who are resident in private care homes provided on behalf of a local authority only have remedies against the local authority and not against the care home directly. The Government believe that the approach taken to section 6 by the courts in this case has been too narrow, and we are committed to seeking clarification of the meaning of ““public authority””. If what we hope happens in the House of Lords on Wednesday does not happen, we shall have to tackle the issue in another way. It is our intention to fill this gap. We have followed the advice of the predecessor Committee to the Joint Committee on Human Rights, on which I was serving when it produced a report in 2003—largely instigated by me—on this gap. It was our conclusion—and it was good advice, although I would say that, I suppose—that we should pursue this issue through litigation. That seems to have been the right way forward. All we can do is try to intervene in a good case when a good case comes up. We cannot invent a good case, and we cannot make an academic application to the UK courts to ask the court to determine academically what is a public authority and what is not. As cases of this kind do not come up every day, we have had to wait for one. We have now intervened, although not very successfully the first time round. We are also working our way through the precedent system, which means that we have to get to a court above the one that has found the opposite way in the Leonard Cheshire case. This strategy may well have been effective, in that, on Wednesday, we shall have a judgment one way or another on the meaning of ““public authority””. It follows from what I have already said that we hope that that judgment will reinstate the essentially functional definition of a public authority, which the then Home Secretary and Lord Chancellor set out in the House of Lords. I have already quoted the Home Secretary on the matter. It is clear even from our brief debate today that this is not a straightforward issue. We need to ensure that we get the right result. We do not think we should hurry the process with a one-line, one-clause Bill. I do not think I am submitting my hon. Friend the Member for Hendon to criticism that he would not accept when I say that even he would agree that the Bill is not perfectly drafted. We would not be happy to continue with a one-clause Bill, trying to amend it on the hoof, when the House of Lords judgment will be given next Wednesday. I say that for the following reasons. The Human Rights Act is a hugely important piece of legislation and it is clear, not least from the contribution of the hon. Member for West Chelmsford, that the rights of many vulnerable people hang on getting a correct definition. That the issue is not simple is made evident by the various interpretations in the courts. Best of all would be that the House of Lords overturn Leonard Cheshire, but if it does not we shall have to take a further element into account: whatever statutory provision is drafted it will again be interpreted by the courts, and if they are bent on a narrowing of the definition we shall have to draft any legislative intervention accordingly. It will be incumbent on us to take note of the strands of reasoning that their lordships put together in coming to their conclusion, either way, so that we follow their thinking and ensure that we drive forward a definition of ““public authority”” to ensure that the vulnerable people to whom Members have alluded have the care that everybody wants for them.