DDB 118 Letter from The Rt Hon Jean Corton
MP Chair of the Joint Committee on Human Rights
THE JOINT COMMITTEE ON HUMAN RIGHTS
COMMITTEE OFFICE
HOUSE OF COMMONS
7 MILLBANK
LONDON SW1P 3JA
Tel: 020 7219 2797
jhcr@parliament.uk
24 March 2004
Rt Hon the Lord Carter
Chairman
Joint Committee on the Draft Disability Discrimination
Bill
The meaning of public authority in the
Draft Disability Discrimination Bill
Thank you for your letter of 15 March 2004
requesting the JCHR's views on the provisions regarding the meaning
of "public authority" under the Draft Disability Discrimination
Bill. As you note in your letter, the JCHR has recently expressed
concern regarding the application of similar provisions in the
Human Rights Act 1998 (HRA) in its Seventh Report of this Session,
The Meaning of Public Authority under the Human Rights Act.
The Draft Bill, in new section 21B, places
obligations on a category of "public authorities" in
similar terms to section 6 of the HRA. It makes it unlawful for
a public authority to discriminate against a disabled person in
carrying out its functions. "Public authority" is stated
to include persons "certain of whose functions are functions
of a public nature" (New Section 21B(2)(a)). It is then
provided that "in relation to a particular act, a person
is not a public authority … if the nature of the act is private"
(New Section 21(b)(4)).
New section 21B therefore follows the pattern
of the Human Rights Act in creating two distinct categories of
public authorities on which obligations are imposed. First, "pure"
public authorities, such as central government departments, local
authorities or the police, would be considered to be performing
public functions in all that they do. Every action of such bodies
would therefore be subject to the obligation of non-discrimination
under section 21B(1).
If the courts were to take the same approach
to interpretation of section 21B(1) as has been taken in relation
to the Human Rights Act, then this category of "pure"
public authorities would be viewed narrowly, as applying principally
to State bodies. As our Report makes clear, we do not view the
narrowness of this category as problematic, so long as the second
category of public authority is generously interpreted.
This second category of public authorities
created by both the HRA and by section 21B of the Draft Bill is
that of "functional" public authorities. These are
bodies which perform some public, and some private, functions
(Draft Bill, new section 21B(2)(a)). They may include, amongst
others, some of the large number of private sector organisations
which provide public services under contract with local authorities.
This category of bodies have duties under section 21B only when
they are performing "public" functions. Other commercial
activities or employment matters fall outside of section 21B,
as private functions.
The intention of the public authority provisions
in the HRA, which have been closely followed in the Draft Bill,
was to allow for flexibility in the range of organisations to
which the legislation applied, and in particular to take account
of the increasing role of the private sector in the delivery of
public services. The concern expressed by the JCHR in its report
on the Meaning of Public Authority under the Human Rights Act,
is that the "functional" public authority category has
been interpreted narrowly by the courts, so as to exclude many
of these private organisations active in public services. In
particular, it is a cause for concern that organisations which
do not have close institutional ties to a State body have been
held, for that reason, not to be a functional public authority,
and therefore not to be subject to duties under the HRA. As our
Report highlights, this creates inconsistencies in human rights
protection, dependent on the relatively arbitrary criteria of
the organisation's management structures.
In our view, although a similar interpretation
of the public authority provisions under the Draft Bill might
well be taken, any resulting gap in protection is likely to be
much smaller than that under the HRA. This is because the 1995
Act already imposes obligations on those providing services, including
private organisations. The impact of this limitation on the duties
of functional public authorities would be considerably less under
the Disability Discrimination legislation than it is under the
HRA, since the Disability Discrimination Act 1995 already prohibits
discrimination on grounds of disability in relation to employment,
the provision of services, goods and facilities, and the disposal
and management of premises. Only functions that are private,
but that also fall outside any of these categories, would remain
unprotected under the Draft Bill, where they are performed by
"functional" public authorities. The gap in protection
will arise only in certain cases where a private body performing
a function which is considered by the court not to be a "service"
(and is not a matter of employment, or of the disposal or management
of property), is nevertheless held not to be a functional public
authority, under the relatively narrow judicial approach described
in the JCHR report.
In this regard it is worth noting that although
the use of coercive powers, on the authority of the State, by
a private sector organisation might be considered not to be a
service, the exercise of powers of detention has been recognised
under the HRA caselaw to be a public function. The position is
less clear in respect of regulatory activity, although it has
been held that a private organisation administering a public market
was a functional public authority under the HRA. The current
state of the caselaw under the HRA means that it is difficult
to say with certainty where the line between public and private
functions, and public authorities and private bodies, will be
drawn under the similar provision of the Draft Bill. Your Committee
may wish to clarify with the government the intended effect of
the Draft Bill in this regard.
Exceptions
In some respects, and despite the narrow public
authority definition, the HRA may provide greater protection for
human rights, including protection against disability discrimination,
than the Draft Bill. New section 21B in the Draft Bill includes
a list of exceptions to the non-discrimination duty (section 21B(3)
(c), (d), (e) and (f), and 21C) which are not found in the HRA.
In particular, it has been important to the development of caselaw
under the HRA that the courts are considered to be public authorities,
with obligations to hear and decide cases before them in accordance
with Convention rights. Were the exception for judicial acts
removed from section 21C, the effect would be to require the courts
to act in conformity with the principle of non-discrimination
against people with disabilities (as detailed in section 21D)
in all relevant cases before them. This would affect both procedural
rights before the court (for example, the provision of interpretation
services) as well as the court's decision in the case. The current
obligation on the courts under the HRA to comply with Convention
human rights (in particular in respect of rights of non-discrimination
in respect of private life under Articles 8 and 14 ECHR, and the
right to a fair hearing under Article 6) might be considered to
go some way towards providing this protection. Nevertheless,
your Committee may wish to seek clarification as to the government's
reasons for excluding judicial acts from protection under the
Draft Bill, and as to the intended effect of this exclusion.
Section 49A
As regards the general duty to promote non-discrimination
(new section 49A)), it is also likely that application of the
HRA caselaw would confine this duty to "obvious" public
authorities-central and local government, the police etc-as well
as applying it to some private organisations performing public
functions which had close organisational links to a government
body.
Application of the current caselaw might mean
that organisations to which services had been contracted out-such
as housing associations-would not always or consistently be bound
by the positive duty. Factors such as the proximity of their
connections with the contracting-out local authority would affect
whether they were bound by the duty. Where a local authority
did not contract out housing provision, but continued to provide
this service directly, it would be bound by the general duty in
the discharge of this function.
Given the nature of the general duty, the
lack of direct application to all service providers might be seen
to be less problematic than in relation to the duty to act compatibly
with the Convention rights. It might be expected that where a
local authority, for example, contracted out a service, the local
authority would remain under a duty to promote non-discrimination
in respect of that service. Your committee may wish to seek clarification
from the government on this point.
I hope that these views will be of some assistance
to your Committee in its scrutiny of the Draft Bill. If the JCHR
can be of any further assistance in your inquiry, please do not
hesitate to contact either myself, or the Committee's staff.
RT HON JEAN CORSTON MP
Chair, Joint Committee on Human
Rights
JCHR, Report on the Meaning of Public Authority
under the Human Rights Act, Seventh Report of session 2003-2004,
paras22-23.
Ibid, Chapter 2.
Ibid, para.40.
R (A) v Partnerships in Care Ltd, [2002]
1 WLR 2610
R v Hampshire Farmers' Market ex parte Beer
[2003] EWCA Civ 1056
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