Appendix 6: Letter from the Lord Darzi of Denham
KBE, Parliamentary Under Secretary of State (Lords), Department
of Health, dated 7 May 2008
I am writing to inform you of an amendment that I
have today tabled to the Health and Social Care Bill, of which
I enclose a copy[20].
This amendment ensures that care and accommodation which is publicly
arranged under the National Assistance Act 1948 (or similar provision
in Scottish and Northern Irish legislation) will in future be
subject to the Human Rights Act 1998 as if it were a function
of a public nature within the meaning of section 6(3)(b) of that
Act. It therefore reverses the effect on care homes of the judgment
of the Appellate Committee of the House of Lords in YL v Birmingham
City Council[21].
As our new clause would appear before Clause 138
of the Bill, I have been able to take note of the debate yesterday
on the amendments tabled on behalf of your Committee by Baroness
Stern, and still table this amendment in good time for consideration
in Committee. This creates the maximum possible opportunity for
the consideration of this important subject during the remaining
stages of this Bill.
My colleagues in the Department of Health and the
Ministry of Justice who were working on this issue agreed at the
outset four principles that any amendment in this Bill must meet:
(a) it should restore the Government's original
intention as to the meaning of "public authority" in
this context by including only the provision of care and accommodation
that has been publicly arranged;
(b) it should not create fresh uncertainty in
the law on this subject, nor should it affect the status under
the Human Rights Act of any function to which it does not expressly
refer;
(c) its effect should be certain, and not incur
the risk of further litigation; and
(d) it should apply equivalently to England,
Wales, Scotland and Northern Ireland.
I believe that the amendment as drafted meets these
four criteria.
I should emphasise that this amendment is not intended
to be a comprehensive solution to the question of the scope of
the Human Rights Act; it would restore the Government's original
intention in relation to the specific statutory provisions considered
in YL. This Bill is not the appropriate context in which
to reopen the wider debate about that original intention, nor
is it the context (or the timescale) in which to attempt any comprehensive
solution to the wider problem of the meaning of "public authority".
As you know, my colleagues in the Ministry of Justice intend
to consult on the wider issue of the scope of the Human Rights
Act in the context of their work towards a British Bill of Rights
and Responsibilities.
The amendment therefore follows the second of the
two approaches set out by your Committee in your Fifteenth Report
of this Session by referring only to sections 21(1)(a) and 26
of the National Assistance Act 1948. We have also identified,
in close consultation with our colleagues in the devolved administrations,
the equivalent provisions in Scotland and Northern Ireland to
which the amendment also refers. The provision will not have retrospective
effect.
By virtue of the wording of subsection (1) of the
new clause, specifically the phrase "is to be taken for the
purposes of", the clause is what may be termed a "deeming
provision". The effect of this is that it will not have
a wider impact on the interpretation of the words "function
of a public nature" either in the Human Rights Act or in
other statutory provisions in respect of which a similar formulation
has been adopted. This will mean that, with the exception of
the specific functions to which the amendment refers, the principles
derived from the speeches of the majority in YL remain
binding case law for all other purposes.
However, having considered carefully those speeches,
we do not believe that the judgment in YL has determined
the position of any function other than those specifically considered
by their Lordships. It is notable, for example, that Lord Mance
expressly notes in the conclusion of his judgment that he "would
leave entirely open the provision of those operating in the different
areas of health and education services"[22].
Given that the amendment is a deeming provision,
its application to any given function implies that the function
in question is not already caught by the existing statutory test.
We must therefore take particular care to ensure that we do not
by means of this amendment cause any further functions to be excluded
from the scope of "functions of a public nature", either
expressly or by analogy on the basis of the drafting and nature
of the function in question.
It remains the Government's view that the provision
of publicly-arranged health and social care should generally be
considered a function of a pubic nature, and we will continue
to treat those exercising such functions as subject to the Human
Rights Act. In particular, as I am aware that this has been a
matter of some concern, I would emphasise the Government's firm
view that independent providers of NHS care under the National
Health Service Act 2006 are exercising a function of a public
nature.
I therefore look forward to debating this amendment,
which demonstrates the Government's commitment to taking effective
action in relation to this issue.
I am writing in similar terms to Peers and MPs who
have spoken on this subject during the passage of the Bill, and
I am placing a copy of this letter in the Library of the House.
I understand that Michael Wills will also be writing to you to
address the wider context of this amendment and the various recommendations
on this subject that your Committee has made.
20 Not published here. Back
21
[2007] UKHL27
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22
Ibid. at para. 123
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