Designating "public functions"
107. A further option would be to provide either
for the ministerial designation of particular functions as public
for the purposes of section 6 of the Act, or to legislate separately
to designate certain functions as those that are, or may be, public.
For example, Shelter proposed that there should be legislation
to state that registered social landlords or housing associations
are independent bodies, but that certain of their functions are
public functions. These functions, Shelter proposed, would include
the management of housing developed with public subsidy or previously
owned by a local authority, and the provision of services that
discharge functions of a local authority or social services authority.
108. BIHR suggested in its evidence that, for example,
functions pursuant to an arrangement under section 21 and 26 of
the National Assistance Act 1948, could be designated as public
functions. Legislation (or amending legislation) in other areas
such as health or social care could likewise make clear that particular
functions that the legislation allows to be contracted-out are
to be considered as public functions for the purposes of the Human
Rights Act.
109. This option for legislation would be workable
in theory, although it would yet again carry the risk of the implication
of exclusivity—the risk that those functions not so specified
would not be considered by the courts to be public, even if section
6(3)(b) of the Human Rights Act remained unchanged. Although
we consider that the designation of public functions in legislation
is a plausible approach to closing the gap in protection that
has been opened by the decisions of the courts so far, we are
not convinced of its desirability in practice.
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