My Lords, noble Lords have spoken eloquently in support of these amendments and I appreciate the strength of feeling across the House. This is an important issue that is fundamentally concerned with the safeguarding of vulnerable people. While I always hesitate in the extreme to disagree with so many distinguished noble Lords, including noble and learned Lords, I have to say to the House emphatically that these amendments are neither necessary nor an appropriate way to achieve the objectives that are being sought.
As I said before on this issue, the Human Rights Act is about public functions; in other words, it is legislation that concerns the interface between the individual and the state. This philosophy underpins the European Convention on Human Rights and therefore also the Human Rights Act. The noble and learned Lord, Lord Hope of Craighead, to whom I listened with great attention, referred to the case of YL in response to my noble friend Lord Willis, and he urged that the judgment in that case should be accepted and that we should essentially move on. I respectfully agree with that, but I suggest that the key point in this context is what the previous Government did through the Health and Social Care Act 2008. The Act
strengthened the regulatory powers to ensure that the Care Quality Commission can enforce regulatory requirements that are in line with the relevant provisions of the European convention, and this applies to all providers of regulated activity, which includes personal care whether publicly or privately funded.
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I hope that the House listened to my noble friend Lord Faulks. Amendment 83 would represent an unprecedented change to the scope of the Human Rights Act. For the first time, it would capture purely private arrangements, such as a privately arranged social care contract between a private care home and a private individual—an arrangement in which there is no state involvement.
The European Convention on Human Rights and the Human Rights Act, which gives further effect to the convention rights in our domestic law, impose public law obligations that apply separately from, and in addition to, the duties and obligations on the private sector.
However desirable it might appear to be, it is obviously difficult to draw a crisp dividing line as to whether a function is of a public or a private nature. Ultimately, the legislation has to bear the test of time. The courts have acknowledged that there is no single test to determine whether a function is of a public nature and have pointed out that there are “serious dangers” in trying to formulate such a test.
In determining whether a function is a public function for the purposes of Section 6, our courts undertake a factor-based approach which is fact-specific in each case. Consequently, it is neither appropriate nor desirable to introduce amendments bringing specific categories of person within the Human Rights Act which do not reflect the factors that have been applied by our courts.
Difficult as it may be to do so, it is important to take a wider view of how the Human Rights Act applies outside the immediate context of social care and to see whether the amendment would have any unfortunate unintended consequences, such as calling into question whether other groups are covered.
It is clear that the amendment seeks to expand Section 6 of our own domestic Human Rights Act. However, as I have already noted, the Human Rights Act is not free- standing legislation. Its purpose is to give effect in our domestic law to the rights in the European Convention on Human Rights. Arguably, the proposed amendment would mean that, for the first time, we would be legislating for an expansion in scope of the Human Rights Act that included claims that cannot be brought before the European Court of Human Rights.