Human Rights Act 1998 (Meaning of Public Function)

I beg to move,"That leave be given to bring in a Bill to clarify the meaning of 'public function' in section 6 of the Human Rights Act 1998." The purpose of my Bill is to ensure that, when the private sector carries out public functions—for example, in contracted-out care for the elderly—the Human Rights Act 1998 will apply. My Bill seeks to reinstate unambiguously the wide interpretation of the term ““public function”” that was understood to be the meaning of section 6 when the Act was passed, but which has now been cancelled out by court judgments. My intention is to ensure that human rights' protections apply comprehensively, directly and consistently to all those who receive public services from private providers, including the most vulnerable members of our society, such as the elderly in care homes. The Joint Committee on Human Rights, which I chair, is extremely concerned about this issue and continues to press the Government to resolve it. The Human Rights Act 1998 brought home the rights set out in the European convention. Previously, British people had to go to Strasbourg to challenge breaches of their human rights. However, the protection of the Act has been less comprehensive than Parliament intended, because of the judges' interpretation of the meaning of ““public function””. Under section 6, it is unlawful for a public authority to act in way that is incompatible with a convention right. The Act states that a public authority includes"““any person certain of whose functions are functions of a public nature””." During the Bill's passage through the House, the then Home Secretary and Lord Chancellor made it clear that privatised or contracted-out public services were intended to be within its scope. We were told that the ““public function”” definition emphasised the functions rather than the institutional status of the body performing them. Since the 1998 Act came into force, a series of court cases has considered whether a specific private company or organisation that provided services came within its ambit. The exclusion of the private sector has caused the wide interpretation that was originally intended to be disregarded completely. In 2002, the local authority-funded residents of a care home run by the Leonard Cheshire Foundation, a private charity, wanted to challenge the decision to close their home. They claimed that that decision broke their right to respect for their home under article 8 of the European convention. However, the Court of Appeal found that the care home was not a public authority under section 6 of the 1998 Act, so the residents could not enforce their rights, even though the council still had its obligations to them. In the most recent case—the YL case—the Law Lords put matters beyond doubt. YL was an 84-year-old lady with Alzheimer's, and the council had organised her care in a private home. Her family raised concerns about her treatment, and the home then gave Mrs. YL 28 days' notice to quit, because care home residents have no security of tenure whatsoever. There was evidence that her condition would deteriorate if she was transferred to an unfamiliar setting, so her relatives challenged the decision under section 6 of the 1998 Act. However, the Law Lords ruled that care homes run by private companies, even when they have a contract for the placement of residents at public expense, are not public authorities for the purposes of the 1998 Act. In 2004, the Joint Committee on Human Rights concluded that the test being applied by the courts in such cases was ““highly problematic””. In many instances, it resulted in an organisation"““standing in the shoes of the State””" but without the State's legal responsibilities under the 1998 Act. That had led to a ““serious gap”” in the protection that the Act was intended to offer. The judgment in the YL case has made matters worse. It has created a problem with immediate practical implications of much wider significance, because so many services previously delivered by public authorities are now privatised or contracted out. The implications extend across the range of especially vulnerable people in society, affecting not just elderly people in private care homes but, for example, tenants in housing association properties, people with physical or learning disabilities and looked-after children. In November 2005, the Government published guidance for local authorities on contracting in the light of the Human Rights Act. We found that guidance alone cannot solve the problem; in reality it has proved utterly useless. It dissuaded procurement officers from taking a positive approach. No model process was recommended, nor were standard contract terms. The guidance was badly written, difficult to follow and unpublicised. The guidance lacked accessibility. It was written in highly technical language, and was difficult to understand. It was hard to find and gave no practical examples. There were no mechanisms to monitor the impact on procurement. In general, local authorities were not even aware that the guidance existed. Guidance can never be a substitute for the direct application of the Human Rights Act to service providers. The Government strategy of intervening in court cases has proved a failure, too, following the YL judgment. The legal position for other services is now extremely uncertain and must not be left to the vagaries of judicial interpretation. There is an urgent need to ensure that our human rights law clearly and unambiguously protects vulnerable people. The recent Joint Committee on Human Rights report on the treatment of the elderly in hospitals and care homes drew attention to appalling evidence of woeful neglect, lack of dignity and respect, and ignorance of the human rights of the elderly. The existing legislation does not sufficiently protect and promote the rights of older people in health care. The Under-Secretary of State for Health, my hon. Friend the Member for Bury, South (Mr. Lewis), who has responsibility for care services, and the Minister of State, Ministry of Justice, my hon. Friend the Member for North Swindon (Mr. Wills), who has responsibility for human rights, both agree that the present position is anomalous and must be addressed. Recently, my hon. Friend the Under-Secretary of State for Health told me:"““Publicly funded residents of private residential and nursing homes should be covered by the 1998 Act and I believe that that was Parliament's original intention...I shall consider what instructions we can give to the regulator to ensure that homes, ""including independent-sector homes, are regulated on the basis of their meeting the requirements of the 1998 Act.””—[Official Report, 13 November 2007; Vol. 467, c. 526-7.]" In evidence to my Committee last month, my hon. Friend the Minister of State, Ministry of Justice said:"““We will start addressing this issue in the consultation process on the British Bill of Rights and Duties which is beginning early in the new year.””" I am not persuaded that the problem can be rectified by the regulators; nor am I satisfied that legislative reform should have to await the outcome of the Government's proposals for a British Bill of Rights, which could take years to emerge, if they ever do. The Health and Social Care Bill, currently before Parliament, provides an ideal opportunity to address the specific anomaly identified in YL, but the Government have yet to explain why the Bill should not be amended to ensure that providers of health and social care are brought within the Human Rights Act. However, although a sector-by-sector approach could provide a short-term fix for some cases, we need a legislative solution to achieve the broad scope of the Human Rights Act originally envisaged by Parliament. Last year, the then Lord Chancellor made the extraordinary proposition that a widening of the definition of public authority could have the effect of driving private providers out of the market. I say ““extraordinary””, because it would not be a widening of the definition, but would be on all fours with what Lord Irvine of Lairg—the previous Lord Chancellor—told Parliament was intended when the Bill was before it. Moreover, the appalling implication of that comment is that private sector care home residents are not to have the right to challenge abuse in our courts, making them second-class citizens—in growing numbers—as local authorities continue to contract out. The commercial interests of contractors are being put before the decent treatment of the elderly and vulnerable. I am pleased that that position was rejected by the then Prime Minister when I questioned him about it during a Liaison Committee meeting last February. He made it clear that in his view private sector providers should be brought within the scope of the Act. The Government should not toy with the idea of narrowing the scope of the Human Rights Act in any sector. In the previous Session I proposed a Bill similar to this one, and on Second Reading, the then Minister, my hon. and learned Friend the Member for Redcar (Vera Baird), now the Solicitor-General, said:"““We are committed to taking action this year.””—[Official Report, 15 June 2007; Vol. 461, c. 1047.]" It is thus hardly surprising that I am disappointed when, on the very last sitting day of 2007, there is still no decision on how to resolve the chaos of the YL case and no plan for legislation to solve the problem comprehensively. Time is of the essence for vulnerable people who ought to benefit from the full protection of the Human Rights Act, but are currently denied it. The Government are not moving quickly enough to deal with the problem, so I urge the House to support my Bill. Question put and agreed to. Bill ordered to be brought in by Mr. Andrew Dismore, Dr. Evan Harris, Nia Griffith, Mr. Virendra Sharma, John Austin, Ms Karen Buck, Mr. Paul Burstow, Clive Efford, Mike Gapes, Mr. Andy Slaughter, Jeremy Corbyn and Shona McIsaac.