The Care Bill completed its House of Lords stages on 29 October 2013 and was presented to the Commons on 30 October 2013. Its second reading debate in the House of Commons was on 16 December 2013, and it is currently with the Public Bill Committee. The 8th sitting of will be on Tuesday 21 January, at which clause 48 will be discussed.
Clause 48 addresses a lacuna in the provision of care services identified in YL v Birmingham City Council and Others [2007] UKHL 27, which arose from the absence of a definition of those bodies deemed to be undertaking public functions under Section 6 of the Human Rights Act. This states:
6 Acts of public authorities.
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
(3) In this section “public authority” includes—
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.
Although partially addressed through section 45 Health and Social Care Act 2008, protection under HRA 1998 is still restricted to those whose care is arranged under the National Assistance Act 1948. There is therefore a lack of protection under the HRA for self-funding care home residents and those using non-residential services. This was considered by two select committees (House of Commons Joint Committee on Human Rights, 2004 and 2007) and was the subject of a (failed) Private Member’s Bill [1], but no little further progress was made until the insertion of clause 48 of the Care Bill by the House of Lords at Report stage. The text of Clause 48 closely follows the amendment tabled by Lord Low of Dalston, which was carried by 247 votes to 218 with cross-party support. Clause 48 received support from the Equalities and Human Rights Commission, prior to its second reading.
The Explanatory Note to the Bill [2] states:
Public functions under the Human Rights Act 1998
Clause 48 – Provision of “care and support services”
280. Clause 48, which was inserted by a non-Government amendment during Report stage in the House of Lords, provides that providers of care and support are to be taken to be exercising a function of a public nature for the purposes of section 6 of the Human Rights Act 1998. The effect of the clause is that all care and support providers who are regulated by the Care Quality Commission are required to act in a way which is compatible with the European Convention on Human Rights.
The Department of Health believes that clause 48 is unnecessary because the present system is already aimed to make providers accountable to people receiving care, and people arranging their own care may also seek redress through their contract with their care provider or through the law if an offence were committed. However, in her blog Lucy Series disputes this view and argues
“[t]he HRA offers remedies for issues which are not always easy to capture under tort law … issues like violations of ‘dignity’ or the imposition of excessively restrictive or controlling care regimes, issues like restricting contact with family or matters connected with privacy. In some situations positive obligations to protect people from harm or death are stronger under the HRA than under the tort of negligence. Contract only offers a remedy if you are a party to a contract, and when care is arranged by a public authority the service user will not be”
Nevertheless, Norman Lamb (LD), Minister of State at the Department of Health, has tabled an amendment to remove clause 48. Age UK has launched a petition for its retention and other organizations have urged members to write to their MPs.
Comment
It is evident from the two reports of the House of Commons Joint Committee on Human Rights that the meaning of public authority under the Human Rights Act has wider implication beyond that of the Care Bill. The position of ministers and PCCs of the Church of England in this respect was examined in PCC of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank & Anor [2003] UKHL 37, and was considered in parliamentary debates in relation to civil partnerships and the marriage of same-sex couples. The inclusion or exclusion of clause 48 is specific to the Care Bill context and is unlikely to have a direct impact on other areas. Nevertheless, it highlights an important aspect of the 1998 Human Rights Act that has long been acknowledged, but has yet to be resolved.
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