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Older People's Rights (Health Care)

I shall not say a great deal, because we have had a good debate. I appreciate my hon. Friend's approach. He will receive a letter to remind him of those of our findings that were not recommendations. I think that the question of the YL case has been troubling for everybody. The problem is that the Human Rights Act applies only to public authorities; a lot of people do not know that. That is where the difficulty has arisen. The Committee argues that, at least in the short term, we should return to where we were, or where we thought we were, before the YL case, so that publicly funded people in private or voluntary sector care homes have the protection of the Human Rights Act, which should be directly enforceable by residents, if necessary, against providers. The present post-YL system makes enforcement extremely indirect and difficult. We want direct enforcement. The wider issue of whether privately funded people should be included is more complex, partly because that was not what was originally intended by the Human Rights Act. It also raises wider issues about what is known in the human rights trade as horizontality—the right of private citizens to enforce rights against other private citizens or private bodies. That is why it raises significantly wider issues in relation to the human rights debate and, ultimately, the debate about the Bill of Rights. That is not to say that private funders should not have additional protections, but it is another question altogether whether that can be done through the YL reform mechanism. There is an argument that because there is significant state regulation of private sector care homes, they are therefore brought within the public authority definition. However, that is a complex and convoluted legal argument, and I shall not go into it in detail. When the Committee was considering what amendment to the Health and Social Care Bill to propose on Report, we thought it better to go back to where we were before YL and let the arguments about private funders be resolved differently. As my hon. Friend the Minister has said, we should try to find better ways of protecting them without getting bogged down in the Human Rights Act. The problem has to be dealt with differently, because private provision goes far beyond people in care homes: it concerns adults with learning disabilities and people who receive publicly funded education in private schools. A whole range of additional services could be affected, so the issue is much wider. My Bill would refine the definition of a public authority to include such service providers. If we are to go beyond that into private enforcement by private individuals against private companies or people, it would involve a much bigger human rights argument, which has to take place in the wider context of the Bill of Rights debate. We want private funders to be protected, but not in that way.