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Human Rights Act 1998 (Meaning of Public Authority) Bill


3rd July 2009

Jonathan Djanogly winds up a debate on a Private Member's Bill which he fears could have unforeseen regulatory consequences for private bodies engaged in public functions.

Mr. Jonathan Djanogly (Huntingdon) (Con): I congratulate the hon. Member for Hendon (Mr. Dismore) on his persistence in supporting his cause, although we shall not be supporting him on this occasion.

Previous incarnations of this Bill and its subject matter, including the lengthy deliberations on the definition of a "public authority" by the Joint Committee on Human Rights, have often focused on whether private care homes come under the definition of a public authority when providing care to an elderly person funded by the local authority pursuant to its statutory duties. Conservative Members supported the concept of extending the definition to private care homes in that context. However, we have reservations about the scope of this Bill, as it goes much wider, with an unknown regulatory impact on private bodies engaged in public functions.

Let me go into a bit of the background. Section 6 of the Human Rights Act 1998 makes it illegal for public bodies to act in a way that is incompatible with a convention right. The definition of a public body is a broad one, and includes a court or tribunal and

"any person certain of whose functions are functions of a public nature".

The Act allows a person who claims that a public body has acted, or proposes to act, in a way that is made unlawful by section 6 to bring proceedings against the body under the Act. However, they can do so only if they are, or would be, a victim of the unlawful act.

Mr. Dismore: The hon. Gentleman referred to the need for an impact assessment. As my Bill proposes what was the original intention of the Human Rights Act, the original impact assessment for the Human Rights Bill, as it then was, will be exactly the same as it would be for this Bill.

Mr. Djanogly: I think that this Bill significantly extends the issue, and we would certainly want to see a full impact assessment were it to be taken any further.

When the Human Rights Act was passed in 1998, it did not seek to specify an exact list of what constituted a public authority. A large number of cases since then have been involved with privately run care homes that are subcontracted to provide local authority care. As the hon. Gentleman said, in the case of YL v. Birmingham city council in 2007, a majority of the House of Lords held that a private residential care home was not performing a public function for the purposes of the HRA when providing services to an elderly person funded by the local authority pursuant to its statutory duties. However, I appreciate that the Joint Committee on Human Rights has consistently taken the view that it was clear from the HRA that this was meant by Parliament in 1998 to be included within the Act's definition of public function.

The Health and Social Care Act 2008 reverses the effect of the YL judgment on care homes. It states that any person who provides accommodation with nursing or personal care in a care home for an individual under arrangements made under the relevant statutory provisions is to be taken for the purposes of subsection (3)(b) of section 6 of the Human Rights Act to be exercising a function of a public nature in doing so. Given the changes in the 2008 Act, it seems to us that this proposal is a significant proposed extension of the scope of the HRA.

As the hon. Gentleman said, according to the Joint Committee on Human Rights, of which I appreciate he is a distinguished Chairman, there is an unresolved problem with the meaning of public authority in the Human Rights Act, which should be able to be resolved by passing the Bill. However, it is clear that questions remain unanswered about amending or clarifying the meaning of the term, and they prevent us from supporting the Bill.

There needs to be clarification of which bodies would be likely to be caught by the extension of the definition. Is the hon. Gentleman sure that what he described in his opening remarks covered the Bill's scope fully? Many private bodies receive state funding. If the Bill were passed, would an employee of one of those bodies be able to use rights under the Human Rights Act in employment cases? It is clear that Parliament did not intend that publicly funded residents living in private sector establishments would not be covered by the Act.

Questions have to be answered about the scope of the Bill. There is a risk that any care provider involved in a private transaction could be brought within the scope of the Human Rights Act.

Mr. Dismore: Will the hon. Gentleman expand on that? I fail to see how that could be the case. There is an argument among those involved in the care homes fraternity and relevant non-governmental organisations that it should be, but my Bill has been drawn up to ensure that that does not happen, as was the previous change in the law in 1998. That is another issue to consider, but my Bill is not intended to address it.

Mr. Djanogly: I am pleased that the hon. Gentleman makes that clarification, but we have concerns and do not want uncertainty. We do not want a pharmacy, or even a bank, to come within the definition of "public authority" in relation to the Human Rights Act. It is clear that Parliament did not intend that to be the case when the Act was passed, and if we accepted the Bill we could be acting contrary to the intention behind the Act and introducing a whole raft of unnecessary regulation of private bodies engaged in some way with public functions.

I do not think that I need remind the House that since 1998, Labour's new regulations have cost the British taxpayer in excess of £76 billion. We would be negligent in our duty to protect the interests of the British people if we subjected them to further and unnecessary regulation, particularly as we have not had the opportunity to conduct in-depth analysis and scrutiny of the far-reaching proposals in the Bill.

It is clear to us that the Bill's scope is simply far too wide. The question is not simply whether a private care home comes under the definition of a public authority when providing an elderly person with care funded by the local authority. The Bill has the potential to go much further, but the case for that has not been made. Parliament cannot afford to make a mistake on the meaning of public authority, and business cannot afford that either.

We must consider this important issue within the wider context. As far back as 2003, service providers expressed concerns about widening the definition. A number were worried that it would jeopardise both the perceived and actual status of organisations such as housing associations as being independent of Government. Furthermore, many service providers believe that by being labelled a public authority, they may be prevented from raising money outside Treasury controls, for instance.

We cannot simply redefine public authority in the broad manner that the hon. Gentleman advocates, especially as there is an extremely high risk that it will lead to unnecessary regulation of businesses that, let us face it, are in the grip of one of the worst recessions we have experienced. Conservatives must also assess his proposals in the context of the future Bill of Rights, with which we intend to replace the Human Rights Act.

To my knowledge, there has been no assessment of the costs of implementing this Bill. We believe that they would be significant. This is not the time to be putting a significant burden on business and on the taxpayer, particularly as no one knows what the cost will be and we are experiencing a deep recession. The truth about the real cost of widening the definition of public authority in the Human Rights Act must be determined before anyone can even contemplate supporting the Bill.

We support widening the definition of public authority to include private residential care homes where publicly funded patients are resident. However, the Bill goes much further, creates too many possibilities for labelling private sector enterprises as public authorities and does not take it into account that the cost in time and money for those private sector enterprises could be immense.

Mr. Dismore: The hon. Gentleman focuses on the cost to business. Has he considered the cost to the consumers of those services that businesses provide? The Human Rights Act requires, for example, elderly people and children in looked-after accommodation to be treated with dignity and respect. What cost is involved in that?

Mr. Djanogly: The hon. Gentleman should consider the cost not only to business but to the taxpayer, particularly as we are talking about the public sector. However, concentrating on the specific examples that he gave might be a better way of proceeding than through the general sweeper with which he has presented us today.

2 pm



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