Care Bill [HL]

Debate between Lord Hope of Craighead and Lord Willis of Knaresborough

Wednesday 16th October 2013 Lords Chamber

[Lord Willis of Knaresborough]

I thank my former honorary opponent for that clarification and I certainly would not wish to contradict him. The reality is that the previous Government did, in fact, try to find a way out of this judgment and to correct it in a way which they thought would be beneficial for the people of England and Wales. Instead, they introduced an amendment to the Health and Social Care Act 2008 to extend human rights protection to those receiving residential care arranged by a public authority. The amendment did not extend, as the noble Lord, Lord Low, rightly said, to home care services, even though they were provided under a similar statutory framework. It is that gap that this amendment is designed to fill. Surely there is precious little difference between a local authority securing care services of an individual in a residential care setting or in someone’s own home. That is the kernel of this particular problem.

The Department of Health has explained the Government’s position in Written Answers to the JCHR. It said that,

“all providers of publicly arranged health and social care services, including private and voluntary sector providers, should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998, and not to act in a way which is incompatible with a convention right”.—[Official Report, Commons, 17/7/12; col. 702W.]

We are told that:

“The case law supports a broad application of Section 6(3)(b) and provides that individual factors should be considered in each case. As such YL was a case on the particular facts, and it does not necessarily follow that the reasoning in that case will be applied to other social care settings”.

I find that very difficult to understand. Can the Minister explain the department’s judgment in that way?

The factual settings in YL in favour of a finding that Southern Cross was indeed performing a function of a public nature could not have been stronger, and yet were rejected by the majority so that legislative intervention became necessary. The department says that all providers should consider themselves bound by a Section 6 duty, but the law is entirely uncertain as it stands whether they are required by law to do so.

The department continues in its letter to JCHR:

“The Government do not therefore consider that an amendment to the Human Rights Act 1998 is necessary.”

But Amendment 83 is not seeking to amend the general test in Section 6 of the HRA, but to make it clear that someone who provides regulated social care is to be taken for the purpose of Section 6 (3)(b) to be exercising functions of a public nature in doing so. It is hard to see how it could be otherwise. The department continues by saying that the government position remains that:

“Any amendment to the Human Rights Act in relation to third sector and private providers … risks casting doubt about the interpretation of the Human Rights Act”.

However, the uncertainty is created not by this amendment but by the decision in YL, and by the fact that the amendment made by the previous Parliament was too narrow.

The Joint Select Committee on the draft Bill, chaired by Paul Burstow MP, included strong membership from all sides of the House. The committee’s report, published on 19 March, considered the Government’s arguments with great care at paragraphs 280 to 292, and concluded that the present amendment is absolutely necessary.

I therefore hope that the Minister will have had discussions with his ministerial colleagues and officials and will be able to accept the amendment in the name of the noble Lord, Lord Low, without the need to test the opinion of the House.

[Lord Hope of Craighead (CB)]

My Lords, I will say a few words in support of Amendment 83 in the name of the noble Lord, Lord Low. Before I say anything I will follow the example of the noble Lord, Lord Willis, and apologise for not having taken part in proceedings on this Bill before. As the Minister may know, I have recently returned from a period of disqualification, which has now been lifted on my retirement from the UK Supreme Court, so I am now able to speak, which I was not able to before. I thought I might contribute just a few thoughts to this debate against the background of that experience.

My first point is that Section 6(3)(b) of the Human Rights Act is one of the few provisions in what was an excellently drafted Act which, in my experience, judges have found rather difficult to apply in practice. The reasons for this were explained by the noble and learned Lord, Lord Neuberger, in YL. He made the point that any reasoned decision about the meaning of that phrase,

“functions of a public nature”,

risked falling foul of—as he put it—circularity, preconception and arbitrariness. The words are quite imprecise, so one has to search for some kind of policy guidance as an aid to their interpretation. There may be a whole variety of factors in one case taken with another that have to be brought into account as one tries to reach an answer—and in practice, answers are quite hard to predict.

With great respect to the noble Lord, Lord Willis, it is not helpful to ask at this stage whether YL was wrongly decided; we have to take the decision as we find it. That is how the law works. Of course, it is always open to Parliament to take a different view and judges—and, I am certain, noble Lords in that case—appreciate that entirely, as the noble Lord, Lord Neuberger, did for a reason I will come to in a moment. We have to assume that the judges in the lower courts will follow the decision in YL if other cases come before them, and it may not be all that easy for the Supreme Court—if the issue comes back before it in some future case—to depart from the basic reasoning in YL. I therefore suggest that one has simply to approach these issues on the basis that YL is there, and proceed accordingly.

The solution to the problem which the noble Lord, Lord Neuberger, indicated in his speech, at the very end of quite a long judgment, was that if the legislature considered it appropriate that residents in privately owned care homes should be given convention rights protection against the proprietors, it would be right for the legislature to spell that out in terms and make it clear that the rights should be enjoyed by all such residents. The words “spell it out”, which I think the noble Lord, Lord Willis, used, make the point that one has to have something which puts the matter plainly on the record and which gets over the difficulty created by the very broad reach of the subsection in Section 6.

As we have heard—I do not need to go over the ground again myself—an amendment was made to the 2008 Act which did not extend to regulated home care services, so there is a gap. There are, therefore, two questions. First, should the gap be filled? Secondly, which is a question for the Minister, how should that be done?

As far as the first point is concerned, as I understand the progress of events, and my reading has indicated this, there is not really any dispute about this because the Department of Health’s position, as explained to the Joint Committee on Human Rights, is that,

“all providers of publicly arranged health and social care services … should consider themselves to be bound by the duty imposed by section 6 … not to act in a way which is incompatible with a convention right”.—[Official Report, Commons, 17/7/12; col. WA 702.]

I think it was also suggested that it would not necessarily follow that the decision in YL, which was about a care home, would apply to other social care solutions.

I see a difficulty with that approach. Comments of the kind that were made, that people should consider themselves bound by a convention right, however well intentioned, do not have the force of law. They could not be relied upon, for example, in a court to guide a judge about the meaning of Section 6(3)(b) in the particular context. Therefore, they leave the law in a state of uncertainty because they do not have the force of law, and they have no relevance to a decision that the court would have to take.

If one takes the example of a provider who is faced with a claim from a person who is in need of care and not receiving it or whose rights are being infringed, that provider will probably have to seek legal advice as to what should be done. Legal advice would take the provider back to YL, and we find ourselves once again faced with the gap to which other speakers have drawn attention. It is perfectly true that YL was a decision on its own facts, but I respectfully suggest that the implications of the decision go wider than that. If you read the judgments, there is a distinction between private, profit-making bodies on the one hand and state or government-owned bodies with public functions on the other. One can debate how far private and profit-making bodies may be caught by the section, but that is the area which is creating difficulty.

The fact that that body was regulated, which was the situation in YL, was not determinative. The fact that we are dealing with social care which is regulated is not the answer to the problem. That is where the gap now confronts us. I would respectfully suggest, in support of the amendment of the noble Lord, Lord Low, that the answer is to do as the noble and learned Lord, Lord Neuberger, urged us to do at the end of his judgment and to spell it out in terms that a person who provides regulated social care is to be taken to be exercising a public function.

There is another point. A failure by Parliament to grasp this opportunity now and to make it clear will be noticed. There is a risk that, if that opportunity is not taken by Parliament now, courts may take this as a sign that Parliament is content with the law as it stands and may be understood to be on the basis of YL.

I absolutely appreciate that there is a question for the Minister whether this amendment would have wider implications. From my own experience, and having read the judgment in YL too, I am quite certain that thought passed through the minds of the judges. There is reference, for example, to schools and other institutions; the judges may have considered, “If we make a pronouncement about this, it may affect other circumstances and situations”. There is a difference, of course, between a judge making that kind of pronouncement and Parliament’s putting forward or putting into a measure a precisely targeted measure which deals with a particular problem. It is the difference between a sledgehammer, I would say, to crack a nut, and a rapier which deals with a particular issue. I do not see that there is any real risk that, by dealing with the matter in the targeted way that the amendment of the noble Lord, Lord Low, seeks to do, it will be taken as a signal in the courts that there is some wider reach in Section 6(3)(b) from that which was being discussed in YL.

It is a difficult issue, but I respectfully suggest that it has to be addressed now and that there is a real risk that, if we do not do it now, it will give rise to real problems later. I warmly support the initiative of the noble Lord, Lord Low.