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Health and Social Care Bill

moved Amendment No. 207A: 207A: Before Clause 138, insert the following new Clause— ““Human Rights Act 1998: provision of certain social care to be public function (1) A person (““P””) who provides accommodation, together with nursing or personal care, in a care home for an individual under arrangements made with P under the relevant statutory provisions is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act 1998 (c.42) (acts of public authorities) to be exercising a function of a public nature in doing so. (2) The ““relevant statutory provisions”” are— (a) in relation to England and Wales, sections 21(1)(a) and 26 of the National Assistance Act 1948 (c.29), (b) in relation to Scotland, section 12 or 13A of the Social Work (Scotland) Act 1968 (c.49), and (c) in relation to Northern Ireland, Articles 15 and 36 of the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14)). (3) In subsection (1) ““care home””— (a) in relation to England and Wales, has the same meaning as in the Care Standards Act 2000 (c.14), and (b) in relation to Northern Ireland, means a residential care home as defined by Article 10 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (S.I. 2003/431 (N.I. 9)) or a nursing home as defined by Article 11 of that Order. (4) In relation to Scotland, the reference in subsection (1) to the provision of accommodation, together with nursing or personal care, in a care home is to be read as a reference to the provision of accommodation, together with nursing, personal care or personal support, as a care home service as defined by section 2(3) of the Regulation of Care (Scotland) Act 2001 (asp 8). (5) Subsection (1) does not apply to acts (within the meaning of section 6 of the Human Rights Act 1998 (c.42)) taking place before the coming into force of this section.”” The noble Baroness said: I shall also speak to Amendment No. 225A, which is consequential. The Committee will recall the decision 10 months ago of the Appellate Committee in YL v Birmingham City Council, when their Lordships decided that the private care home looking after Mrs YL was not undertaking a function of a public nature and was therefore not subject to the Human Rights Act. This was despite her care having been arranged by her local authority under the National Assistance Act. That decision was a serious disappointment for the Government. Neither the reasoning nor the outcome reflected the Government’s original intention when we introduced the Human Rights Bill to Parliament. My honourable friend the Minister for Human Rights is committed to consult on how to address the scope of the Human Rights Act, perhaps by means of legislation. The amendments do not remove the need for that consultation. I understand that preparatory work is under way but that the exact timing of the consultation will depend on the progress of the amendments, which will address the immediate impact of YL for people receiving publicly arranged care in care homes. When a local authority arranges care and accommodation for a person in an independent sector care home under the National Assistance Act 1948, or similar provisions in Scotland and Northern Ireland, this amendment will ensure that the care home is treated as if it is performing a function of a public nature. The care home would therefore be subject to the Human Rights Act. By virtue of subsection (5) in the amendment, the Human Rights Act would apply to the ““acts”” of a care home only after the provision came into force. For these purposes, an act has the same meaning as in the Human Rights Act: it refers to the particular action of the public authority, or its failure to take action, that is alleged to be in breach of the convention rights. The amendment would therefore apply to anyone who was in a care home already when the provision came into force, but only in respect of breaches alleged to have occurred after the provision came into force. Members of the Committee will have seen the various letters from my noble friend Lord Darzi which explain this amendment in more detail, but I want to draw out two points from those letters. First, our intention with the amendment is to address the outcome of YL but otherwise to leave the legal interpretation of, "““function of a public nature””," as it is. The amendment seeks to restore only the Government’s original intention in respect of that particular function. Given that we intend to consult, we do not want to create any further uncertainty in the law at this stage. We also agree with the Joint Committee on Human Rights that we do not want to proceed on a function-by-function or sector-by-sector basis after this amendment. I stress that the amendment does not overturn the reasoning in YL; it simply changes its outcome. The general guidance given by the courts on the functions of a public nature will remain intact. The amendment also carefully affects only the Human Rights Act and not any other legislation that may be framed in a similar way, unless that legislation is expressly linked to the Human Rights Act. Many noble Lords have questions about which functions are covered by the Human Rights Act and views about whether they should be so covered. However, this amendment is not the place to make widespread changes to the scope of the Human Rights Act; the forthcoming consultation is the place to consider issues such as that. As my noble friend Lord Darzi explained in his letters, the amendment is framed as a deeming provision. We cannot therefore start adding other functions for the avoidance of doubt without causing potentially serious repercussions elsewhere in the law. It is, of course, difficult to assess the wider impact of the YL decision. Much of the reasoning of the Appellate Committee was specific to the case before them. Some of their Lordships were very clear that their decision left open the interpretation of the Human Rights Act in relation to other functions. Therefore, it remains the Government’s view that, in general, the provision of publicly arranged health and social care should be considered a function of a public nature. The Government will therefore continue to treat those exercising such functions as being subject to the Human Rights Act. I reiterate one important point from the letters. It remains the Government’s firm view that independent providers of NHS care under the National Health Service Act are, as the law currently stands, exercising a function of a public nature. I am aware that various briefings for this debate have asked noble Lords to press for the Government’s view of the position under the Human Rights Act in all sorts of circumstances. Perhaps I may pre-empt a lot of those questions by saying that many of them depend on the particular circumstances of the case. As we have seen, it falls to the courts to determine who is subject to the Human Rights Act, for better or worse. Within the general principle that I have outlined, the Government would also consider all the circumstances of a case in deciding their view of the position. That is particularly true of non-residential social care functions, which can take a very wide variety of forms. The consultation process will of course be the time to work out which functions should be subject to the Human Rights Act and to work out how that can best be achieved. I am grateful to all those who have worked with the Government in preparing this amendment. I particularly note the contributions of the British Institute of Human Rights and the Commission for Equality and Human Rights. This amendment is a very important step along the road to addressing issues surrounding the scope of the Human Rights Act. It will restore the protection of the Act to some of the most vulnerable people in our society. I beg to move.