Health Bill [HL]

My Lords, I am a member of the Joint Committee on Human Rights, and this amendment stems from some work that the committee has done, which we published in our 11th report on 15 April. The issue is again about payments. Under this Bill, the Secretary of State is enabled to discharge various statutory functions under the National Health Service Act 2006 by making direct monetary payments to patients in appropriate cases, initially through pilot schemes. As the Explanatory Notes say: ""This gives patients receiving direct payments for health care similar rights to those enjoyed by patients accessing services from NHS organisations or from private sector organisations commissioned by PCTs"." So far, that is good. The issue is whether the provider of these services would constitute a public authority under the Human Rights Act 1998. Why is that in doubt? It is in doubt because a number of court cases culminated in a judgment by the House of Lords in YL v Birmingham City Council and others in June 2007. As our report says: ""By a majority of 3 to 2, the Law Lords ruled that the person concerned could not bring a claim against her private sector care home under the HRA, in relation to the infringement of her right to respect for her private life and home under Article 8 ECHR"." As a result, the Government introduced an amendment to the Health and Social Care Bill in the last Session to put that right, but the question is whether the new arrangements on payments are also covered. The report of the Joint Committee on Human Rights states: ""In their joint evidence to us, Help the Aged and Age Concern argued that private bodies providing health services funded by direct payments should be considered as providing public functions, but"—" and here is the key point— ""‘it is not clear whether in practice they will be’. They recommended that legislation should clarify the position, given ‘the overall uncertainty about the HRA status of private healthcare providers’."." I think that is a reasonable doubt, given the previous House of Lords case. The Government have argued that it is unnecessary, and there is a straight conflict of view there. We on the Human Rights Committee believe that it is necessary and that there should be an amendment to this Bill for the avoidance of doubt. The recommendation is, ""that the Bill be amended to make it absolutely clear that it is intended that NHS services funded by direct payments and provided by independent bodies are functions of a public nature for the purposes of the HRA 1998"." I beg to move.