I hope that the House will forgive my having a number of new clauses to explain in the time available to discuss part 1 of the Bill. I will try to crack on as quickly as possible to explain the thinking behind each of them. I will do so not in numerical order, but in order of importance, starting with the new clauses on which I particularly want to hear the Minister’s response.
First, I wish to discuss new clause 11, which deals with the Human Rights Act 1998 and its application to social care. The Act has enormous potential to improve the lives of those most vulnerable to human rights abuses in social care settings. People who are being provided care in their own homes or in care homes face risks in respect of their privacy, their family life, being safe and not suffering degrading treatment. Such matters are all very much at the heart of how we ensure that we provide dignified care.
I am sure that the Minister knows, as do other hon. Members, that a loophole has opened up in our law as a consequence of a judgment made by the courts some years ago. It arose in 2007 following the decision by the House of Lords in the YL v. Birmingham city council case. The Law Lords held that a private care home providing residential care services under contract to a local authority was not performing a “public function”, so its residents were excluded from the protections of the Human Rights Act. In practice, that means that domiciliary care users, or their families or carers, can complain to the care company, depending on the terms of their contract, but in many cases they will not be able to take their complaint any further. Contractual terms and conditions are important, but they can often fail to give the protection that we would want to see, and residents in care homes have no security of tenure and are often afraid to complain because of fear of eviction.
Many people with care needs face additional challenges asserting their contractual rights, particularly if they lack the capacity to do so because of dementia or learning disabilities.
The decision that private and third sector care home providers were not directly bound by the Human Rights Act meant that thousands of service users had no direct legal remedy to hold their providers to account for abuse, neglect and undignified treatment, even though the public body commissioning those services remains bound in law by the Human Rights Act. There is need for change in this area. The loophole was partly closed by the previous Government, with cross-party support, through section 145 of the Health and Social Care Act 2008, which covers residential care services. However, under changes that this Bill will introduce, it will need to be reinstated by order, but there is a far better and more elegant way in which that could be done—by implementing new clause 11.
New clause 11 seeks to clarify the law so that all providers of publicly arranged or paid-for care are within the scope of the Human Rights Act. Service users who experience serious human rights abuses will then have direct means of legal redress. However, this is not just about going to law; it is about what goes on in the hearts and minds of those organisations and the attitude they take towards how they provide services, so the Human Rights Act has a part to play in culture change as well. For example, the Act has been successfully invoked in an argument about a local authority’s refusal to place a married couple in the same nursing home.
The Government have accepted that there is a loophole, and we very much welcome that. We raised the matter during consultation on and scrutiny of the draft Bill, and we offered up a suggestion, which their lordships adopted. In response to the Joint Committee, the Minister told us that organisations that were not covered by the Act should none the less consider themselves bound by it. Lord Hope, the recently retired Deputy President of the Supreme Court had this to say about that:
“Comments of the kind that were made, that people should consider themselves bound by a convention right, however well intentioned, do not have the force of the law”.—[Official Report, House of Lords, 16 October 2013; Vol. 748, c. 549.]
That is why we need to give it the force of law, which is what new clause 11 attempts to do. It puts back the law to where Members of all parties expect it to be, and ensures that a poor judgment by the court is corrected.
New clause 1 deals with the issue of power of access. Last week, I handed in a letter to the Prime Minister, setting out the case for the measure. It was signed by 602 organisations and individuals, including Age UK, Mencap, the National Autistic Society and many others with expertise in the area of adult safeguarding. They all share a common concern that there is a gap in the law when it comes to protecting vulnerable people who have the ability to make decisions for themselves but who are living in a home with someone else who is abusing them or neglecting them and who is denying them, because of their ability to exert their authority over that person, the ability to get the protection that they need. The Law Commission took that view in its review of mental capacity legislation, and the Equality and Human Rights Commission also took that view in its analysis of the legislation.
In our debates in Committee, my hon. Friend the Minister of State said that when officials were asked to provide the evidence behind their advice that the new power was unnecessary, there was an opaqueness surrounding the issue. There was not the necessary level of clarity to understand what powers could be used and in what scenario. I must say to the Minister that the scenarios that have been offered up to justify the position that there is no need for legislation do not address the circumstance that I and my new clause 1 seek to address. I am talking about someone who legally has capacity but who is under duress and unable therefore to exercise their individual right to seek protection. As a consequence of that, we need this power.