Accountability of the delegating
public authority?
78. Where a public authority contracts out functions
which it would otherwise discharge itself,[82]
it is arguable that the public authority itself remains liable
under the Human Rights Act for any breach of Convention rights
that results. This argument is relied on by the Department of
Health: it argued that, where social services are contracted out—
The local authority does not "delegate"
its functions. It exercises its functions by entering into contracts
for the provision of services. It remains accountable for those
functions. It continues to be responsible for providing the services
needed by the person and for reviewing his needs. Therefore we
believe that people's rights are adequately protected by the existing
legislative structure.[83]
79. The Deputy Prime Minister takes a similar view
in relation to the role of private sector organisations in the
housing sector. He points out that, under section 27 of the Housing
Act 1985 as amended by the Regulatory Reform (Housing Management
Agreements) Order 2003, where there is an agreement for private
sector organisations to provide housing management services for
a local authority, the local authority remains responsible for
anything done, or not done, by the private sector organisation.[84]
80. In his oral evidence, however, the Secretary
of State for Constitutional Affairs took a more cautious view.
Asked whether a contracting-out body would retain responsibility
for violations of Convention rights in the delivery of the contracted-out
services, he observed that—
… it would depend upon the facts of the individual
case, but if the public body contracts out to a private organisation
and that private organisation is not held to be a public authority
…. a question could then arise about the public authority's
liability. That would depend on all of the circumstances, including
what arrangements were made between the public and private body,
and what was known to the public body at the relevant time.[85]
81. It has been suggested by the courts, though it
has not yet been clearly decided, that where a public body contracts
out its functions it retains responsibility for any action by
the private body in performing those functions in breach of Convention
rights. In Poplar Housing, the Court of Appeal relied on
Costello Roberts v United Kingdom[86]
to support a retention of human rights liability by a contracting-out
public body—
The European Court made it clear that the State cannot
absolve itself of its Convention obligations by delegating the
fulfilment of such obligations to private bodies or individuals,
including the headmaster of an independent school. However, if
a local authority, in order to fulfil its duties, sent a child
to a private school, the fact that it did this would not mean
that the private school was performing public functions. The school
would not be a hybrid body. It would remain a private body. The
local authority would, however, not escape its duties by delegating
the performance to the private school. If there were a breach
of the Convention, then the responsibility would be that of the
local authority and not that of the school.[87]
This view was restated by the Court of Appeal in
Leonard Cheshire,[88]
the Court adding that—
… if the arrangements which the local authorities
made with LCF had been made after the HRA came into force, then
it would arguably be possible for a resident to require the local
authority to enter into a contract with its provider which fully
protected the residents' Article 8 rights …[89]
82. We acknowledge these dicta, and we discuss
the use of contracts to ensure protection in section 7 below.
But it should not in our view be taken for granted that a public
authority that contracts out services remains liable in domestic
law for any breach of Convention rights by the contracted-to
body. This issue has not as yet been given full consideration
by the UK courts. Undoubtedly the State retains liability before
the Strasbourg Court for any breach of Convention rights arising
from a contracted-out public service.[90]
But the international law which the Strasbourg Court enforces,
based on a system of State liability, should be distinguished
from the domestic system for complying with the State's obligations.
As the parliamentary debates show,[91]
the Human Rights Act as a whole was designed to provide protection
equivalent to the UK's obligations in Strasbourg. This was, however,
to be effected by designing into the Act the direct liability
of "pure" public authorities for breaches of Convention
rights alongside direct liability, under section 6(3)(b), of private
organisations performing public functions for breaches of Convention
rights directly attributable to them.
83. In our view, therefore, a contracting-out public
body would be liable for the actions of the contracted-to public
body in breach of Convention rights only where it could be shown
that the public body had a positive obligation to protect rights
in the circumstances at issue. This would in general require that,
where the State (in the form of a "pure" public authority)
knows, or ought to know, of a real and immediate risk to the Convention
rights of a particular individual or group, there is an obligation
on it to take reasonable steps to prevent that breach.[92]
So, for example, where a local authority contracts-out provision
of residential care to a private organisation, and it knows or
ought to know that conditions at the care home would be in breach
of Article 3 (the prohibition on inhuman and degrading treatment),
then it would be likely to be in breach of its positive obligation
to prevent breach of the residents' rights. However, where reasonable
steps have been taken to ensure that services are contracted out
to organisations that will not breach Convention rights, no positive
obligation would arise. In those circumstances, in our view, there
is no reason why the contracting-out public body would be liable
under section 7 of the Human Rights Act for a breach of Convention
rights by a contracted-to service provider.
84. In some cases, because of the nature of the breach
at issue, the contracting-out public authority would simply not
be in a position to afford effective redress. This, for example,
was the position in the Leonard Cheshire case, where the
claimants wished to use Article 8 of the ECHR to prevent the closure
of their care home and their transfer elsewhere. The local authority,
which had contracted with Leonard Cheshire for the applicant's
care, could not itself have prevented this. The Law Society argues
that there will be many cases—
… where a pure public authority cannot practically
be made liable for the default of a notional hybrid [or "functional"]authority.
Persons in this position might be termed "stranded victims",
that is persons for whom the State has Convention responsibilities
(under Article 1 ECHR) but where the Convention violation has
been inflicted by a non-public body.[93]
85. In our view, accountability of the contracting-out
body for compliance with Convention rights by contractors (where
and to the extent that it is available) is not an adequate substitute
for direct accountability of the service provider under section
6. Reliance on the contracting-out party's responsibility
will provide only partial protection. It is also undesirable that
the body directly providing a service to individuals should be
able to shift responsibility for human rights compliance elsewhere.
If a human rights culture is to be developed in our public
administration and public services, this will not be promoted
by removing from those delivering sensitive services the responsibility
for compliance with, and the liability for breaches of, those
human rights standards.
Horizontal application: the protection
of rights in the private sphere?
86. Although the Human Rights Act imposes direct
obligations to protect Convention rights only on public authorities,
the Act does allow the Convention rights to have some impact on
the development of the law in the private sphere. The Act's limited
horizontal effect arises from two provisions. First, under section
6, the courts as public authorities have a duty to protect Convention
rights and therefore to apply the law, in all cases before them,
in a way that complies with these rights. Second, the duty to
interpret legislation compatibly with Convention rights "so
far as is possible to do so", under section 3, also applies
in all cases, including those involving purely private bodies.
87. The extent of the "horizontal" application
of the Human Rights Act as between private parties has been the
subject of extended academic debate,[94]
but it is generally accepted that these provisions fall far short
of full horizontal effect, which would apply the obligation to
comply with Convention rights to both private and public persons
on an equal basis. Nevertheless, it is arguable that in cases
involving private sector service providers falling outside a narrow
definition of public authority, there would be a sufficient level
of human rights protection arising from the obligation of the
courts to comply with Convention rights, and their obligation
to interpret legislation in accordance with Convention rights.
Private sector service providers are of course subject to the
criminal law and to the full panoply of private law actions, including
actions in tort or contract: this, interpreted in accordance with
Convention rights by the courts, provides some protection for
the rights of service users. Additionally, sectors such as housing
and healthcare are regulated by legislation which has to be interpreted
in accordance with Convention rights under section 3, so far as
is possible to do so.
88. The principal difficulty with making this mechanism
stand as a proxy for direct accountability is that even the limited
"horizontal" applications of the Act are not free-standing.
They depend on there being an existing cause of action to get
the matter into court. Doughty Street Chambers note that indirect
application under section 3 and section 6 is—
… of little practical benefit where a body performing
privatised functions is neither a public authority nor amenable
to judicial review … the jurisdiction of the court will depend
on there being some other cause of action upon which the court's
role as a public authority can bite.[95]
In our view, the lack of a cause of action to
bring a case to court would mean that in many cases "horizontal"
application of Convention rights would be of little assistance
to victims of a breach of Convention rights by a provider of a
public service which was not a public authority. Section 6 of
the Human Rights Act is the only legal mechanism available which
ensures full responsibility for the protection of, and direct
accountability for breaches of, Convention rights.
82 As for example in the Poplar and Leonard
Cheshire cases. Back
83
Ev 3. Back
84
Also supported in the evidence of the Charity Commission, Ev 17;
the Chartered Institute of Housing, Ev 4. Back
85
Q 101. Back
86
[1993] 19 EHRR 112. Back
87
[2001] EWCA Civ 595, para. 60. Back
88
[2002] EWCA Civ 366, para. 33. Back
89
Ibid., para 34. Back
90
see above paras.14-15. Back
91
See the comments of the then Home Secretary Jack Straw MP cited
at para.14 above. Back
92
Osman v UK(2000) 29 EHRR 245. Other aspects of a State's
positive obligations under the Convention include the duty to
provide resources necessary for the realisation of Convention
rights (Airey v UK(1979-1980) 2 EHRR 277); to ensure that
there is an effective legal framework for the protection of Convention
rights (X and Y v Netherlands (1986) 8 EHRR 235); to provide
information to individuals to allow them to ascertain whether
their Convention rights are being breached, for example information
on dangerous levels of environmental pollution (Guerra v Italy
(1998) 26 EHRR 357); to investigate grave breaches of Convention
rights, particularly breaches of Articles 2 and 3 (Aydin v
Turkey (1998) 25 EHRR 251). Back
93
Ev 48. Back
94
Murray Hunt, The Horizontal Effect of the Human Rights Act,
[1998] Public Law 423; Sir William Wade, Horizons of Horizontality
[2000]116 LQR 217; Dawn Oliver, The Human Rights Act and the
public law / private law divide [2000] EHRLR 343; Tom Raphael,
The problem of horizontal effect [2000] EHRLR 393. Back
95
Kate Marcus, What is Public Power: The Courts' Approach to
the Public Authority Definition under the Human Rights Act,
in Jowell and Cooper, eds., Delivering Rights: How the Human
Rights Act is Working, Hart Publishing, 2003.See also evidence
of Liberty/Oxford Public Interest Lawyers, Ev 51. Back
