Parliamentary briefing: Health and Social Care Bill

Second Reading, House of Commons, 31 January 2011

Key points

  • The Commission is concerned that with proposed changes to commissioning, there is a risk that services may not be subject to the fundamental protections contained in the new Equality Duty under the Equality Act 2010, or under the Human Rights Act 1998.
  • The Commission would advise that the ways in which equality and human rights legislation will apply to commissioning, service delivery, regulation and inspection of the National Health Service should be made more explicit, either on the face of the legislation or clear statements of commitment.    

The Commission’s position

The Commission is the statutory regulator with responsibility for promoting, enforcing and monitoring the effectiveness of equality and human rights enactments. The Commission therefore wants to ensure that the Health and Social Care Bill has the desired effect of tackling health inequalities and improving the safety of patients without impacting negatively on the protection offered by the Equality Act 2010 and the Human Rights Act 1998.  

Clause 3 - The Secretary of State’s duty to reduce inequalities

The Commission welcomes references on the face of the Bill to the duty placed on the Secretary of State to reduce health inequalities. However, we seek further clarity on how these reforms will work in practice.

In particular, the Commission seeks further information on how the proposed duty to reduce inequalities placed on the Secretary of State and on the NHS Commissioning Board will interact with the Equality Duty under the Equality Act 2010.

Designation of proposed new bodies and service providers

The Equality Duty was created by the Equality Act 2010 and will come into force in April 2011. In summary, those subject to the Duty must have due regard to the need to:

  • Eliminate unlawful discrimination, harassment and victimisation
  • Advance equality of opportunity between different groups
  • Foster good relations between different groups

Public authorities can become subject to the Duty either through being listed for Schedule 19 of the Equality Act 2010 or by virtue of performing functions of a public nature. The Commission is of the view that legal clarity is better secured through the explicit inclusion of bodies in Schedule 19.

The Commission welcomes the explicit listing in Schedule 19 of the NHS Commissioning Board, GP Commissioning Consortia, the National Institute for Health and Care Excellence and the Health and Social Care Information Centre. We also welcome the fact that the application of the Equality Duty to Foundation Trusts is retained.

We are however concerned that there may be key health sector bodies omitted from the scope of the Equality Duty, including Healthwatch England and local Healthwatch bodies. We are also concerned that not all providers of health care services will be subject to Duty under the Equality Act 2010.

The provision of services is a key priority for the advancement of equality. If providers of health services are not clearly subject to the Equality Duty, this risks creating significant legal uncertainty as providers are not clear on what their legal obligations are. The Commission therefore advises that a means of making application of the Equality Duty to these bodies explicit is found.

We are also concerned that there are no provisions in the Bill to confirm that private providers of NHS funded services are within the scope of the Human Rights Act 1998 as bodies performing a public function.   

Whilst some parts of the Bill and the explanatory notes refer to how the Human Rights Act 1998 and the Equality Act 2010 will apply to private providers, it is not clear to what extent, or how such regard may be acted upon if required.

Changes to regulation and inspection

The Commission seeks further information on how due regard for equality and human rights is to be built in to the proposed new roles for regulators and inspectors. In particular, we seek details on whether front line inspectorates will be given a power to impose a specified remedy or penalty for failure or breach of equality and human rights legislation.

Clarity is also needed on how regulators and inspectors must collaborate with other regulators, including the Commission, to ensure compliance with equality and human rights.

Public involvement and local government

The Commission seeks further detail of how marginalised and vulnerable groups will be considered by the new proposed local forums such as Health and Well Being Boards and Healthwatch and how proposals on advocacy will support them in practice as individual service users.

The Commission will expand on these keys points for the committee stages of the Bill.

Last updated: 06 May 2016