My Lords, I share, of course, the concern of all noble Lords that we should take all reasonable steps to protect vulnerable people who receive social care in whatever circumstances. I enter this debate for the first time with considerable trepidation, having regard to the great distinction of those, both present and absent, who support this amendment. I have to express some real doubts about it.
As far as I am aware this is the first time an attempt has been made to include, within the scope of the Human Rights Act, what may be a purely private function. Those who receive care may not be overly concerned with whether it is being provided by a public authority, a private provider, or in some hybrid
arrangement. Nevertheless, this amendment is in effect extending the scope of the convention beyond the terms of the Human Rights Act.
It is important to consider what protection would be available anyway, in the absence of this amendment. If a poor standard of care is provided to an individual, it is likely that the provider will be in breach of an express term of any contract or in breach of a term implied by the Supply of Goods and Services Act 1982. There will almost certainly be a claim in tort, probably relying on the tort of negligence. There is, of course, a further safeguard in relation to all providers of publicly arranged care, in that all such providers have a duty imposed by Section 6 of the Human Rights Act, at least following what I would submit was the closing of the YL loophole by Section 145 of the Health and Social Care Act. The CQC, as a regulator and a public authority, is subject to the convention.
However, the amendment would, as I understand it, purport to provide some additional remedy; presumably some award of damages. The noble Lord should be aware of the relatively limited scope of damages awards under the Human Rights Act. As Lord Bingham said in the Greenfield case in 2005,
“the 1998 Act is not a tort statute. Its objects are different and broader. Even in a case where a finding of violation is not judged to afford the applicant just satisfaction, such a finding will be an important part of his remedy and an important vindication of the right he has asserted. Damages need not ordinarily be awarded to encourage high standards of compliance by member states, since they are already bound in international law to perform their duties under the Convention in good faith, although it may be different if there is felt to be a need to encourage compliance by individual officials or classes of official”.
The House of Lords also emphasised that the Human Rights Act was not to be regarded as a panacea. Indeed, Lord Bingham went on in Greenfield to say that the purpose of the Act,
“was not to give victims better remedies at home than they could recover in Strasbourg”.
However, that would be the position here if this amendment was passed. My conclusion is that the amendment amounts to an illegitimate extension of the Human Rights Act and would not, in reality, provide any significant extra protection for those who, quite understandably, we wish to protect.
The future of the Human Rights Act will have to await the outcome of the next election. However, amending the Act, which is what in effect this will do, would be inappropriate and, I have to say, unnecessary.