Written question asked by Lord Lester of Herne Hill (Liberal Democrat), in the House of Lords. It was answered by Earl Howe (Conservative) on Monday, 27 February 2012.

Human Rights

Question: To ask Her Majesty's Government why they have not included in the Health and Social Care Bill terms to make clear that third sector and private providers of home care, within the meaning of Paragraph 2 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 and Section 2(28) of the Regulation of Care (Scotland) Act 2001 and Section 1(1)(c) of and Schedule 1 to the Community Care and Health (Scotland) Act 2002, are subject to the duty imposed by Section 6 of the Human Rights Act 1998.

Answer: Our view is that all providers of publicly funded health and social care services should consider themselves to be bound by the duty imposed by Section 6 of the Human Rights Act. While we accept that there are arguments on both sides, we think that there are good arguments that a court would find that the provision of publicly funded personal care at home is a function of a public nature. Any amendment to the Human Rights Act in relation to third sector and private providers of home care, such as provision in the Health and Social Care Bill to specify explicitly that they are subject to the Section 6 duty, risks casting doubt on the interpretation of the Human Rights Act in other sectors. Each time specific provision is made with respect to a particular type of body, we weaken the applicability of the general test and raise doubt about all those bodies that have not been specified explicitly in the legislation. The Government have established a commission to look at how human rights are protected in the United Kingdom, to see if things can be done better and in a way that reflects our traditions. The commission is due to report by the end of this year.

Secondary information