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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