Lord [Colin] Low secured a rare parliamentary victory over the government when his amendment to the care bill was passed by peers in a vote on Wednesday evening.
His amendment corrects what was seen as a loophole in human rights law, which previously meant that service-users in voluntary and private sector-run homes had no protection under HRA, for example if they suffered abuse or neglect.
Although the loophole was closed by new legislation passed in 2008, Lord Low told fellow peers that the care bill could reopen it.
His amendment makes it clear that all organisations regulated by the care watchdog, the Care Quality Commission, are “exercising a public function” under section six of the Human Rights Act.
And it also provides protection under the act to “self-funders”, those disabled and older people who are eligible for care but have to pay for it themselves because of means-testing.
Another disabled crossbench peer, Baroness [Jane] Campbell, said it became obvious to her that there was “a crying need for clarification in this area” – despite the 2008 legislation – while she was hearing evidence during an inquiry by the parliamentary joint committee on human rights.
She said: “We heard very good evidence from a private sector provider. When they were questioned about the Human Rights Act, it became evident that there was a great deal of confusion about when their homes were covered and when they were not.”
She added: “I asked a very simple question about what the witness thought that this meant for her private sector homes.
“She said, ‘Well, to be honest, we already do it. We allow our residents to go to bed at whatever time they like before 10 pm.’
“I feel that the misunderstanding of how the Human Rights Act covers private sector care homes was illustrated in that one moment.”
Lord Low, a lawyer himself, received support from two leading lawyers in the Lords, Lord Hope, who retired from the Supreme Court this summer, and the former Conservative Lord Chancellor, Lord Mackay.
But Earl Howe, the Conservative junior health minister, warned that Lord Low’s amendment would represent “an unprecedented change to the scope of the Human Rights Act”.
He said: “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.”
He added: “What people using services and their families want and need is reassurance that they will be treated with care, compassion, kindness and skill. This amendment would not provide any of those things.”
But Lord Low said he wanted to put his amendment to a vote, so that peers could “take the opportunity presented by the bill to take the further steps necessary to put the matter beyond doubt”.
His amendment was passed by 247 votes to 218.
17 October 2013