Joint Committee On Human Rights Written Evidence


1.Memorandum from the Office of the Deputy Prime Minister

  Thank you for your letter of 28 February about your inquiry into the meaning of "public authority" under section 6 of the Human Rights Act. You raise a number of issues, in particular to do with housing.

  There are 524 signed PFI agreements across Government, although only 418 of those are operational. In terms of local authority PFI projects, there are currently 210 that have been endorsed by Government, although not all agreements have as yet been signed.

  The ratio of PPP to conventionally publicly funded projects varies from sector to sector. Across Government, 85 per cent of capital investment is being conventionally funded by the public sector.

  It may be useful if I set out the legislative arrangements that govern the delegation of housing responsibilities from a local authority to another body. Until recently, the local authority could delegate housing responsibilities to a body acting as its agent, and the principal (the local authority) was liable for the acts of the agent, so long as the agent was acting within the authority given by the local authority. Tenants' human rights were therefore protected, as the local authority was liable for any breaches of the Human Rights Act by its agent in relation to the latter's management of the housing stock.

  The Regulatory Reform (Housing Management Agreements) Order 2003 (Statutory Instrument 2003 No. 940) came into force on 28 March. This amended section 27 of the Housing Act 1985 to allow for a local authority and a manager to enter an agreement for the management of housing otherwise than as a principal and agent. However, it also provides that anything done, or not done, by a manager in connection with the exercise of a relevant function shall be treated as done, or not done, by the local authority. Therefore, the human rights of tenants continue to be protected.

  The major voluntary sector involvement is through tenant management organisations (which are voluntary tenant led bodies). A legal agreement, along the lines of the framework above, between a local authority and a tenant management organisation can formally delegate responsibility to the latter which acts as the authority's managing agent. Currently, 200 tenant management organisations manage 84,000 local authority homes in England (although the level of responsibility delegated varies from case to case). There may also be some peripheral input to housing schemes from voluntary bodies in providing advice on things like dealing with crime and drug abuse.

  There are also over 337,000 local authority homes in 19 local authority areas in England which are currently managed by Arms Length Management Organisations. All 19 local authorities have been granted approval under section 27 of the Housing Act 1985 to delegate their housing management functions. The local authority retains ownership of the properties.

  In terms of the extent of Registered Social Landlord's (RSL's) involvement there are over 2,000 RSL's, registered and regulated by the Housing Corporation. All are not for profit organisations established under a variety of constitutional arrangements including Industrial and Provident Act Societies, registered charities, registered companies and registered both as companies and charities. Between them, RSL's own or manage over 1.7 million properties. RSL's are required to comply with the regulatory code drawn up by the Housing Corporation under the provisions in the Housing Act 1996.

  You mention the Poplar Housing and Leonard Cheshire cases. The Government believes that RSL's are private bodies. We do not believe that the Poplar case contradicts this view: although the Poplar case demonstrates that in certain conditions a RSL's may be performing public functions for the purposes of the Human Rights Act, we do not believe that it has read across for RSL's as a whole, and clearly each case would need to be judged on its individual circumstance. The Leonard Cheshire case would support this view.

  I do not believe that the Leonard Cheshire case changes the way in which PPPs and social housing PFIs need operate with regards to the human rights protection of users of public services. Local authorities retain ultimate responsibility for the services provided, and the Regulatory Reform (Housing Management Agreements) Order has helped to clarify matters. However, I would consider it good practice when drawing up contracts to take account of any human rights implications that may apply as we are seeing in contracts currently being drawn up.

  The Law Commission has recently issued the Consultation Paper Renting Homes 1: Status and Security. The Law Commission (commissioned by my Office) will then publish a paper later this year to give a view on RSLs responsibilities with regards the Human Rights Act. The Government will, of course, take into consideration any recommendations that emerge from this.

  You ask about the role of the delegating public body in the governance of the private body. The precise relationship will be governed by the terms of the relevant contracts, along with the structure of the statutory framework in each case, and you will appreciate that precise duties vary from case to case. Nevertheless the public sector body remains responsible for:

    —  defining need, priorities and the level of service;

    —  setting and monitoring safety, quality and performance standards; and

    —  enforcing those standards.

  The private sector body is responsible for delivering the defined services as set out in the contract.

  You also ask specifically as to whether my Office is satisfied that the existing legislative structure is sufficient to ensure adequate protection of Convention rights in the context of the PPP programme and other contractual arrangements used by local authorities. This point is dealt with earlier in my letter, but I would emphasise again that human rights protection is preserved as local authorities retain responsibility for the services provided.

  Finally, I would make a general point about PPP as it relates to my Office. Every PPP contract is inevitably a "tailored" product, although it may be possible in some areas (such as schools and hospitals), to develop a generic format for contracts. However, because of the crosscutting nature of my Office, there are too few projects that we sponsor on too wide a range of service areas for a generic approach to offer value for money.

  I am copying this to Alan Milburn (who I understand you have also written to), and to Derry Irvine, who has lead responsibility for human rights.

30 April 2003


 
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