Health and Social Care Bill

These two amendments relate to the application of the Human Rights Act to care provided in private settings. Many noble Lords will recall the case that has been mentioned of YL and Birmingham City Council. The Appellate Committee of this House adopted a narrow interpretation of the concept of public authority and the Human Rights Act. Of course it is unlawful by virtue of that Act for a public authority to act in a way incompatible with the convention, a right that is drawn down from the European Convention on Human Rights and on which, thanks to the Act, we may now rely in our courts. In another place, my honourable friend the Minister related that it was the Government’s intention that the term ““public authority”” should be interpreted reasonably broadly so as to encompass the provision of most public services, regardless of who provides them. It was certainly the Government’s intention, and a point on which my noble and learned friend the then Lord Chancellor argued strongly in his intervention on YL, that this should include the provision of publicly arranged care and accommodation in an independent sector care home. Regrettably, their Lordships on the Appellate Committee did not share the Government’s interpretation of the Act to that effect. As the Committee may imagine, I am therefore most sympathetic to the intention behind the amendments. We share the concerns expressed by the noble Baroness, Lady Stern, on behalf of the Joint Committee on Human Rights, the noble Lord, Lord Low, the noble Baroness, Lady Greengross, and my noble friend Lord Warner about the effect that this narrow interpretation is having and we are determined to rectify it. I am therefore pleased to confirm that we are currently finalising a government amendment to the Bill on this subject, which will make all care homes directly subject to the Human Rights Act when providing publicly arranged care and accommodation . In answer to the question raised by the noble Baroness, Lady Greengross, about whether health is included, we agree that publicly arranged healthcare also needs to be covered. However, I am not in a position to discuss the details of the amendment today. I hope that we can discuss this further when we get to the amendment. My officials have been discussing the drafting of the amendment, within government and beyond—““beyond””, I am told, includes noble Baronesses and others—to ensure that it achieves exactly what we want it to while causing no unintended consequences. Drafting an amendment of this limited nature has proved an exceptionally challenging task. The Government’s amendment will seek to insert a new clause towards the end of the Bill. We therefore have the luxury of being able to have this debate today and then, when we table the amendment—I am assured that it is absolutely imminent—we will have plenty of time to debate it later in Committee. However, I need to reiterate two points. First, the Government are also committed to the principle that the scope of the Human Rights Act should not be extended to cover care that is privately arranged by individuals and their families without the involvement of the state. The European Convention on Human Rights places limits on the powers of the state in relation to individuals, so, although the state must ensure that individuals respect each other’s rights, that is not the same as placing private individuals and enterprises directly under obligations that were designed to apply to Governments. It follows that the Human Rights Act is not the appropriate framework for regulating purely private contracts. Secondly, I stress that any amendment to the Bill can address only a limited part of the complex issues about the scope of the Human Rights Act. They go far wider than only care homes and it is important that we find a solution that is lasting and effective. My honourable friend the Minister of State for Human Rights therefore intends to address this wider issue in the context of the consultation process on the British Bill of rights and responsibilities and to draw on a wide range of expertise in that process in a genuine spirit of consultation. Therefore, our amendment to this Bill will be a limited solution pending a much wider examination of this issue. My colleagues, my officials and I stand ready to discuss our amendment before we return to this issue. We must make sure that we get a provision of such importance absolutely correct. I am therefore in a happy position to invite the noble Baroness to withdraw the amendment in expectation of government action very soon.