Health and Social Care Bill

Thank you for your letter dated 7 May 2008 enclosing the Government's amendment to the Health and Social Care Bill intended to reverse the effect on care homes of the House of Lords judgment in YL v Birmingham City Council.

Your letter has been circulated to the members of the Joint Committee on Human Rights in advance of the final stages of Grand Committee in the House of Lords and we have published it on our website to inform wider public debate. I congratulate the Government for its decision to introduce this amendment in good time for a full debate before the Bill returns to the House of Commons. I warmly welcome the Government's decision to ensure that the Human Rights Act will apply directly to all publicly arranged residential care in the United Kingdom. The amendment proposed adopts the approach of the second, narrower amendment proposed by my Committee and would effectively reverse the consequences of the House of Lords judgment for those receiving publicly arranged care in private care homes.[23]

Although we welcome the Government's amendment, we have a number of continuing concerns. We therefore seek further information about the Government's position and the effect of the amendment in advance of the debate, with a view both to informing the debate and ensuring that the amendment does not create any further uncertainty for public service users. I outline our principal concerns below.

(1) The need for a general solution to the scope of the Human Rights Act

We remain disappointed by the Government's decision to approach the issue of the application of the Human Rights Act to contracted out public services on a sectoral basis.[24] As we have made clear in earlier reports, the effect of the reasoning of the majority in the YL case is much wider and has the potential to affect the provision of public services by private sector and voluntary organisations across the whole range of Government activity. We do not agree with your analysis that the judgment in YL has not determined the position of any function other than those specifically considered by their Lordships in that case. In our view, this is far too narrow a reading of the case. The reasoning is of much wider import. We believe that there therefore continues to be an urgent need for a more general solution to the wider question of the scope of the Human Rights Act.

We also remain concerned that the Government intends to delay any further consideration of the meaning of public authority for the purposes of the Human Rights Act until the publication of its Green Paper on a Bill of Rights for Britain. We are concerned that the judgment in YL v Birmingham City Council and the interpretative principles established in earlier cases, such as Leonard Cheshire, have undermined the original intention of Parliament that the Human Rights Act would apply to all public services whether provided by public bodies or privately. Rather than apply a functional test, as intended, the courts have developed their own institutional test based principally on the nature of the bodies performing a task and their relationship with the State. In the past, the Government has accepted that this approach is wrong, including intervening in YL to argue this point. We welcome the acknowledgement in your letter that this is not the end of the wider issue of the scope of the Human Rights Act. However, you also accept that after the introduction of this amendment, the principles derived from the speeches of the majority in YL will remain binding case law for all other purposes.

I would be grateful if you could tell us whether the Government considers that the general legal principles derived from YL v Birmingham City Council on the meaning of public function reflect the intentions of the Government and of Parliament during the passage of the Human Rights Act.

If not, do you accept that the continued application of these principles has the potential to further narrow the intended protection of the HRA, leading to similarly unintended consequences in other sectors?

(2) Private providers and health care

In our Reports and our first proposed amendment, we argued that the Bill should clarify that the provision of any publicly arranged and partially or wholly publicly funded health and social care would be a public function for the purposes of the Human Rights Act.

We welcome your strong indication that it is the Government's firm view that privately provided health care arranged under the National Health Service Act 2006 is a public function for the purposes of the Human Rights Act. However firmly that view is held, it remains the Government's view. In our view there remains a real risk that in a case dealing with privately provided health services on the principles established in the YL judgment the courts would conclude that the provider was not a public authority for the purposes of the Human Rights Act.

In the light of the principles established in Leonard Cheshire and confirmed in YL v Birmingham City Council, I would be grateful if you could provide a further explanation of the Government's view that the courts would consider the provision of publicly arranged or publicly funded health care by a private provider a public function for the purposes of the Human Rights Act.

(3) Social care not provided in a care home

Your amendment, like our own second amendment, would clarify that the Human Rights Act applies to publicly arranged residential care. It would not clarify whether publicly arranged social care provided outside a residential setting would be a public function if it were contracted out. While care provided directly by a local authority service at home would be subject to the protection of the Human Rights Act, the effect of YL, in the Committee's view, is that it would not apply if that service were contracted out, or purchased privately using a publicly provided independent budget.

Although your letter indicates that it is the Government's view that the effects of the judgment in YL v Birmingham City Council may not impact on other sectors, it does not confirm whether or not the Government considers that the provision of publicly funded or publicly arranged social care at home or in the community is a public function for the purposes of the HRA. In light of the Prime Minister's renewed commitment, in the context of the review of funding for social care, to helping more people stay at home or in the community and out of residential care, we consider that clarity in this area is essential.

I would be grateful if you could confirm whether the Government considers that the provision of publicly arranged and publicly funded social care outside a residential setting is a public function for the purposes of the HRA, including where it is provided by a private provider.

If this is the case, I would be grateful if you could further explain the Government's view that there does not need to be an express statutory statement to this effect in the Health and Social Care Bill.

(4) Effect on existing arrangements

The amendment is intended to have prospective effect. I understand that it is the Government's intention that it should 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". However, in your letter, you carefully explain that subsection (1) of the amendment is a deeming provision which provides for acts which would not otherwise fall within section 6 of the Human Rights Act 1998 to be treated as public functions for the purposes of that section. Subsection (1) applies to the provision of accommodation under arrangements made with P under the relevant statutory provisions. It is far from clear whether the Government intends the amendment to apply only to arrangements entered into after the commencement of the Act. We are concerned that, if this is the case, there will be a significant number of elderly and vulnerable people in residential care who will continue to be deprived of the protection intended by the Human Rights Act.

I would be grateful if the Minister would confirm during debate in the House of Lords that this amendment will extend the protection of the Human Rights Act to those in private care homes under arrangements entered into before this Act comes into force, albeit that it will not apply to acts committed or omitted by care homes before that date.

My Committee would be grateful if answers to these questions were forthcoming during the final stages of the consideration of the Health and Social Care Bill by the House of Lords Grand Committee, and certainly before the Bill returns to the Commons.

24   Eight Report of Session 2007-08, Legislative Scrutiny: Health and Social Care Bill, HL Paper 46, HC 303, paras 1.11 - 1.12. Back