BIHR Campaign to Close the Human Rights Act Loophole

In June 2007 the House of Lords ruled (in the ‘YL' case) that the Human Rights Act does not apply to private and voluntary sector care homes providing services under contract to local authorities. As a consequence, hundreds of thousands of older and disabled people in residential care were left without the protection they were promised when the Human Rights Act was passed by Parliament.

BIHR has been at the forefront of efforts to close this legal 'loophole', working closely with a variety of other organisations. During 2007 and early 2008, we convened a group of more than 15 age, disability and human rights organisations to explore legislative solutions. This group successfully lobbied the Government to use the Health and Social Care Bill to confirm that private and voluntary sector organisations providing residential care services under contract to local authorities are in fact bound by the Human Rights Act on the basis that they are performing ‘functions of a public nature'. The Health and Social Care Act, containing a provision to this effect, has now been passed by Parliament and received Royal Assent on 21 July 2008.

Section 145 is the relevant provision of the Health and Social Care Act, although it has not yet entered into force. We expect this to occur in late October 2008.

Further information

• The most recent of the parliamentary briefings on this subject prepared by BIHR, Liberty, JUSTICE, Help the Aged and Age Concern England is available here.
• BIHR intervened in the House of Lords case (‘YL’) together with Liberty and JUSTICE. Our response to the judgment (including a background to the case) is available here.
• A joint response to the judgment issued by BIHR, Liberty, JUSTICE, Help the Aged, Age Concern, and the Disability Rights Commission is  available here.
• Our submission to the Joint Committee on Human Rights’ most recent inquiry into the meaning of 'public authority' under the Human Rights Act is available here. The Government has promised a consultation in the near future on the broader issue of the meaning of ‘public authority’ under the Human Rights Act. BIHR looks forward to participating in this important debate.
• A recent speech on the meaning of 'public authority' under the Human Rights Act delivered by our Director Katie Ghose to the Human Rights Lawyers’ Association is available here. On 23 January 2008, BIHR and the Joint Committee on Human Rights (JCHR) held a mini conference on this issue. The conference was attended by members of the JCHR, a range of NGOs and statutory bodies, the Minister for Human Rights (Michael Wills) and the Minister for Social Care (Ivan Lewis).