Conclusions and recommendations
A gap in human rights protection
1. The
tests being applied by the courts to determine whether a function
is a "public function" within the meaning of section
6(3)(b) of the Human Rights Act are, in human rights terms, highly
problematic. Their application results in many instances where
an organisation "stands in the shoes of the State" and
yet does not have responsibilities under the Human Rights Act.
It means that the protection of human rights is dependent not
on the type of power being exercised, nor on its capacity to interfere
with human rights, but on the relatively arbitrary (in human rights
terms) criterion of the body's administrative links with institutions
of the State. The European Convention on Human Rights provides
no basis for such a limitation, which calls into question the
capacity of the Human Rights Act to bring rights home to the full
extent envisaged by those who designed, debated and agreed the
Act. (Paragraph 41)
2. In our view, the
principles set out by Lord Hope of Craighead in Aston Cantlow
would provide an effective basis for protection of the Convention
rights. Although the House of Lords in that case did not expressly
overrule the decisions in Poplar and in Leonard Cheshire,
it appears that the principles set out by Lord Hope in Aston
Cantlow are at odds with those earlier decisions of the lower
courts. In our view, the approach in Aston Cantlow is to
be preferred. (Paragraph 42)
3. A serious gap has
opened in the protection which the Human Rights Act was intended
to offer, and a more vigorous approach to re-establishing the
proper ambit of the Act needs to be pursued. This is not just
a theoretical legal problem. The development of the case law has
significant and immediate practical implications. (Paragraphs
43 and 44)
Why does the meaning of "public authority"
matter?
4. Those
providing important public services, whether from the State or
private sectors, should not be left uncertain about their responsibilities
to protect fundamental human rights. (Paragraph 49)
5. Given the range
of private and voluntary sector involvement in public service
provision, the extent of public authority responsibilities under
the Human Rights Act is profoundly significant to both the providers
and the recipients of these services. (Paragraph 58)
6. As the case law
currently stands, whether human rights breaches by private and
voluntary sector providers of public services will give rise to
accountability under the Human Rights Act is likely to depend
on a number of relatively arbitrary criteria. (Paragraph 69)
7. The gaps and inconsistencies
in human rights protection arising from this situation are likely
to mean that the UK falls short of its international obligations
(under Articles 1 and 13 ECHR) to secure the effective protection
of Convention rights and to provide an effective remedy for their
breach. (Paragraph 73)
8. The disparities
in human rights protection that arise from the current case law
on the meaning of public authority are unjust and without basis
in human rights principles. Unless other avenues of redress can
be found, this situation is likely to deprive individuals of redress
for breaches of their substantive Convention rights incorporated
under the Human Rights Act. The situation created by the current
state of the law is unsatisfactory, unfair, and inconsistent with
the intention of Parliament. (Paragraph 74)
Concerns of service providers and users
9. Identification
as a functional public authority, that is, a private sector body
that is performing a public function for the purposes of section
6 of the Human Rights Act, would not jeopardise the independence
from the state of a non-governmental body. (Paragraph 62)
10. The financial
burden, responsibility and possible conflict with other duties,
for example, under charity law, that public authority status may
impose on a voluntary sector organisation needs to be taken into
account by State bodies when they contract-out public functions.
(Paragraph 63)
11. It is irrelevant
to deciding the application of the Act whether an organisation
performing a public function is deemed to be within or without
the public sector for wider, including financial, purposes. (Paragraph
65)
Is the category of "functional public authority"
necessary?
12. 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. 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. (Paragraph 85)
13. 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. (Paragraph 88)
Potential solutions: amending or supplementing
the Act
14. We
are not convinced that any amendment to the wording of section
6(3)(b) could be devised which would be certain of achieving a
more satisfactory application of Convention rights and duties
than the current wording. (Paragraph 98)
15. Our main objection
to the idea of scheduling a list of public authorities to the
Act is that it runs contrary to the whole scheme of the Act, a
scheme whose generosity and flexibility we have emphasised again
and again in this report. The application of section 6(3)(b) is
about whether a function is or is not public. It is not about
whether the body performing that function is itself in some way
"public" in character. In many cases it will not be.
The Human Rights Act identifies both pure and functional types
of public authority. Scheduling organisations as "functional"
public authorities under section 6(3)(b) of the Human Rights Act
would leave open the question of which of the body's functions
were to be considered public, and would therefore bring little
advance in certainty in the application of Convention rights.
We do not favour the idea of scheduling a list of "functional"
public authorities to the Human Rights Act. (Paragraphs 101 and
104)
16. We do not favour
amending the Human Rights Act to allow designation by Ministers
in subordinate legislation of particular bodies as public authorities
for the purposes of the Act. (Paragraph 106)
17. 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. (Paragraph 109)
Potential solutions: contract
18. Contract
may provide some measure of protection for the rights of service
users. But contractual terms which are not enforceable by those
whose rights they seek to protect are clearly not a substitute
for direct protection of Convention rights under sections 6 and
7 of the Human Rights Act. (Paragraph 115)
19. Although it may
be possible for a public body to include human rights protections
in its contracts with service providers, there is no legal obligation
on it to do so. There is nothing in the case law of the European
Court of Human Rights, or in the UK case law under the Human Rights
Act, which would impose a positive obligation on a public body
routinely to protect Convention rights through contract. (Paragraph
118)
20. Although terms
relating to human rights in contracts between a service provider
and the contracting-out public body could form the basis for developing
a culture of human rights within the private sector service provider,
litigation or the threat of litigation is not the best way in
which such a culture might be fostered. That will be better promoted
by awareness of the obligations arising from direct responsibilities
under section 6 of the Act. (Paragraph 120)
21. We are unconvinced
that the inclusion of contractual terms for human rights protection
could provide fully comprehensive, consistent and equal human
rights protection for the recipients of public services on an
equal basis with statutory responsibility under section 6 Human
Rights Act. (Paragraph 125)
Potential solutions: guidance
22. 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. (Paragraph 129)
23. We welcome the
guidance given by the Audit Commission to local authorities 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 in section 6 of this report. (Paragraph
131)
24. 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. (Paragraph
134)
A solution: principles of interpretation
25. The
difficulties in defining two key terms—"public"
and "function"—have led to confusion in the application
of section 6 through reliance on criteria, including statutory
basis and institutional proximity to the State, which are not
warranted either by the language of the Act or by the ECHR. A
function is a public one when government has taken responsibility
for it. (Paragraphs 137 and 138)
26. On the principles
we have set out, for a body to discharge a public function, it
does not need to do so under direct statutory authority. A State
programme or policy, with a basis in statute or otherwise, may
delegate its powers or duties through contractual arrangements
without changing the public nature of those powers or duties.
Under section 6 of the Human Rights Act, there should be no distinction
between a body providing housing because it itself is required
to do so by statute, and a body providing housing because it has
contracted with a local authority which is required by statute
to provide the service. The loss of a single step in proximity
to the statutory duty does not change the nature of the function,
nor the nature of its capacity to interfere with Convention rights.
(Paragraph 142)
27. Institutional
links with a public body are not necessary to identifying a public
function. (Paragraph 143)
28. The attribution
of public authority responsibilities to private sector bodies
is justified on the basis that the private body operating to discharge
a government programme is likely to exercise a degree of power
and control (which in the absence of delegation would be State
power and control) over the realisation of the individual's Convention
rights. (Paragraph 147)
Conclusion
29. The
application of the functional public authority provision in section
6(3)(b) of the Human Rights Act leaves real gaps and inadequacies
in human rights protection in the UK, including gaps that affect
people who are particularly vulnerable to ill-treatment. We consider
that this deficit in protection may well leave the UK in breach
of its international obligations to protect the Convention rights
of all those in the jurisdiction and to provide mechanisms for
redress where those rights are breached. (Paragraph 148)
30. It would be unsatisfactory
to leave this matter to the present state of the case law. In
his oral evidence, the Secretary of State for Constitutional Affairs
told us that he would keep the matter of the interpretation of
the meaning of "public authority" by the courts "under
close review" and would "pay particular attention to
the need to intervene in future cases on the meaning of section
6(3)(b)". We urge the Government to intervene in the public
interest as a third party in cases where it can press the case
for a broad, functional interpretation of the meaning of public
authority under the Human Rights Act. In the interests of the
full protection of Convention human rights which the Human Rights
Act was designed to achieve, what is needed is a careful application
of the current section 6 test so as to prevent any diminution
in human rights protection arising from the contracting out of
public services. (Paragraph 155)
31. As a matter of
broad principle, a body is a functional public authority performing
a public function under section 6(3)(b) of the Human Rights Act
where it exercises a function that has its origin in governmental
responsibilities, in such a way as to compel individuals to rely
on that body for realisation of their Convention human rights.
(Paragraph 157)
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