Standard contractual terms
127. We asked in our call for evidence whether any
standard contractual terms for human rights protection had been
prepared. Although none were disclosed by the evidence, it is
anticipated that the Improvement and Development Agency (IDeA)
will develop standard contractual terms for procurement to include
terms on human rights protection.[118]
One very welcome recent development has been the Audit Commission
report Human Rights: Improving Public Service Delivery
(September 2003) which includes a checklist for public authorities
contracting out services, designed to ensure that human rights
considerations have been taken fully into account in the contractual
arrangement.
128. Although contractual terms may not be capable
of providing a fully comprehensive solution, we do see some potential,
as we described in the preceding section, in the development of
standard contractual terms that would be required to be applied
consistently wherever public services were contracted out, even
if only as a stop-gap measure. We asked Lord Falconer whether
the DCA had given any consideration to the development of standard
contractual terms. In supplementary written evidence we were told—
The Deputy Prime Minister's letter of the 30 April
to you, made it clear that we consider it good practice when drawing
up contracts to take account of any Human Rights Act implications
that may apply. My department is in discussion with his about
how best to take this forward.[119]
129. We recommend that the relevant government
departments, in particular the Department for Constitutional Affairs
and the Office of the Deputy Prime Minister, should give urgent
attention to the development of guidance on the protection of
human rights through contract, taking account of the potential
problems we have identified in section 6 of this report.
130. In requesting written evidence from representative
groups for private sector service providers, we asked them as
well whether they had produced any guidance on the meaning of
public authority under the Human Rights Act. Although none had
then been issued, the Audit Commission's recent report, Human
Rights: Improving Public Service Delivery (September 2003)
includes guidance on the responsibilities of contracting-out public
authorities. It advises that—
When a public body contracts out services to a private
or voluntary sector provider, it cannot assume that the service
provider will be liable for any breach of the human rights of
service users … The complexity and difficulty experienced
by public bodies in ensuring that contractors comply with the
Act cannot be underestimated. This is also compounded by emerging
case law as to what can be defined as a public body under the
Act. Following the decision of the Court of Appeal in R (Heather)
v Leonard Cheshire, most private organisations that contract
with public bodies to provide services do not constitute public
bodies for the purposes of the Human Rights Act, despite the public
nature of the work in which they engage. Unless the public body
exerts a significant degree of operational control over the service
provider, it is likely that the courts will consider the service
provider to be outside the scope of the Human Rights Act. The
courts have made it clear that individuals may bring an action
against the public body that entered into the contract rather
than the supplier for failing to protect adequately their human
rights.[120]
The Commission goes on to suggest that—
In order to minimise breaches of human rights by
service providers, public bodies should, when negotiating contracts,
require the service provider to undertake to protect the human
rights of service users. This will bind service providers to the
Act. If an individual's human rights are breached by a service
provider who has entered into a contract that guarantees service
users' rights, an individual may bring a claim directly against
the service provider using the Act. If a public body enters into
contracts in this way it will have endeavoured to protect the
rights of service users.[121]
131. We welcome this guidance as providing constructive
advice in light of the current law. We retain some doubt, however
as to the liability of contracting-out public bodies, as we explained
above in section 6 of this report.
132. The Charity Commission also told us that it
is in the process of reviewing its operational guidance on the
implications of the Human Rights Act for charities, including
the meaning of a public authority.
Guidance from the Government
on the meaning of "public authority"
133. Some submissions to the inquiry suggested that
there should be an authoritative government statement on the meaning
of public authority, or the public authority status of particular
classes of bodies. This could take the form of ministerial guidance
or a clear statement from the Secretary of State.[122]
As a first step, the government could itself adopt a clear commitment
to a broad definition of "public function" as a means
of promoting a human rights culture.[123]
However, there are few signs that it is willing to do so. We asked
the Department what it had done, or what plans it had, in relation
to issuing such guidance. We were told that it had—
… no current plans to issue specific guidance
on the emerging case law on the meaning of public authority. However
we are revising our popular study guide to the Act (prepared in
partnership with the Bar Council) and will update regarding the
position in that, which is for publication before Easter.[124]
134. It would not help the case we are advancing,
of course, if the Government were to issue guidance on "the
emerging case law" on the meaning of public authority in
a way which appeared to endorse it—as this report makes
clear, we do not think the emerging case law is satisfactory.
Official guidance from the Government would be helpful in indicating
to public authorities means of ensuring that the protection of
the Human Rights Act could be preserved. Were it to attempt to
be prescriptive about public functions, it is not obvious that
it would be persuasive in matters of dispute, and it might also
be open to the objections we raised above both against the risks
of appearing to be exclusive and against the desirability of substituting
executive fiat for judicial interpretation. On the whole, we
do not consider that government guidance on the generality of
the meaning of "public authority" under the Human Rights
Act has the potential to reduce greatly the gap in protection
we have identified.
118 As part of the Strategic Programme on Procurement
developed in conjunction with ODPM and the LGA. Back
119
Ev 3. Back
120
Audit Commission, Human Rights: Improving Public Services Delivery,
September 2003, pp. 11-12. Back
121
Ibid., p. 12. Back
122
Ev 31. Back
123
Ev 40. Back
124
Ev 3. Back
