Health and Social Care Bill

Thank you for your letter of 16 May about the Government amendment to the Health and Social Care Bill relating to section 6 of the Human Rights Act 1998. I am pleased that the Committee welcomes the Government's amendment.

As you requested, Baroness Thornton responded to the specific points raised by the Committee in her speech moving the amendment in Grand Committee. I am writing to set out those responses for the record.

In response to a particular concern expressed in your letter, I must stress that this amendment does not represent part of any wider intention to address the issue of the scope of the Human Rights Act on a sector-by-sector basis. It remains the Government's intention to consult on the wider issue in the context of the work towards a British Bill of Rights and Responsibilities, and to address the issue as a whole.

I would be grateful if you could tell us whether the Government consider 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.

In general, neither the reasoning nor the conclusion of the majority of their Lordships on the Appellate Committee in the YL case reflects the intentions of the Government when it introduced the Human Rights Bill, nor the intentions of Parliament as evidenced in the debates on the Bill.

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?

Although the most conspicuous issue caused by the narrowed interpretation of the meaning of "public authority" in section 6 of the Human Rights Act has been in relation to the provision of publicly-arranged residential social care, it is quite possible that outcomes different from that which the Government would have intended may occur in relation to other functions. It is for this reason that the Government remains committed to consulting on the wider issue of the scope of the Human Rights Act.

In your letter, you note that the Committee does not agree with the Government's view that the judgment in YL has not determined the position of any function other than that specifically at issue in the case. I am surprised at this view. While the various principles set out by the majority of their Lordships on the Appellate Committee will strongly influence the consideration of the nature of other functions in other cases, at least one of their Lordships expressly noted that his reasoning left open the interpretation of the Human Rights Act in relation to functions other than that specifically at issue in the YL case. I would suggest therefore that a distinction must be drawn between whether YL has determined the position of other functions - which we would say it has not - and whether YL could affect the position of other functions - which we would of course agree it could through the ordinary operation of the doctrine of precedent.

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.

It is of course difficult to extract from the diverse opinions expressed even by the majority of their Lordships in YL a single set of principles. Nevertheless, the Government believes that, on the basis of the views expressed, there are fundamental differences between the provision of publicly-arranged residential social care under the National Assistance Act (i.e. the function at issue in YL) and the provision of publicly-arranged health care. In particular, services provided by the National Health Service are provided to all, regardless of means and capacity, and are free at the point of delivery. This contrasts with the provision of publicly-arranged social care under the National Assistance Act, which is provided to those who need it through a lack of means and/or capacity to arrange it for themselves, and which is publicly funded only insofar as the recipient is not able to fund it for themselves. For this reason, the Government believes 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 would be grateful if you could confirm whether the Government consider 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.

While the Government considers that, in general, the provision of publicly-arranged non-residential social care services should be subject to the Human Rights Act, the wide diversity of forms that such services may take means that the status of such services in relation to section 6 of the Human Rights Act falls to be determined in light of all the circumstances. It is therefore for the courts - for better or worse - to determine the position of each function. This has of course always been the case since the Human Rights Act came into force: this is not a result of YL.

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.

Given my previous response, it is appropriate to leave the framework of the Human Rights Act as it currently operates in this respect, although this may be an issue for consideration when we come to consult on the wider issue of the scope of the Act.

I would be grateful if the Minister could 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.

As Baroness Thornton said during the debate, this is a correct understanding of the amendment.