3.Memorandum from the Secretary of State
for Constitutional Affairs and Lord Chancellor, Rt Hon Lord Falconer
of Thoroton QC, responding to supplementary questions from the
Committee following oral evidence on 8 December 2003
INFORMATION AND
ASSISTANCE
1. What measures are currently being
taken, or are planned, by your department to inform or assist
public authorities, and the private bodies they contract out to,
in clarifying their Human Rights Act responsibilities in light
of the case law on the meaning of public authority (QQ104-106)?
The Department for Constitutional Affairs has
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.
CONSEQUENCES OF
SECTION 6(3)(B)
PUBLIC AUTHORITY
STATUS
2. Can you confirm, further to your
answer to Q111, that identification as a "hybrid" public
authority under the HRA would not of itself place an organisation
within the public sector borrowing requirement?
Yes. Decisions about the classification of public
and private sector bodies for the purposes of the national accounts,
is a matter for the Office of National Statistics, who make the
decision based on internationally agreed guidelines on sector
classification.
CONTRACTUAL PROTECTION
OF HUMAN
RIGHTS
3.A Further to your answer to Q110, to
what extent do you believe contractual terms could provide effective
protection for convention human rights where public services have
been contracted out? Would such protection in your view be equal
to protection under sections 6 and 7 of the Human Rights Act?
Contractual terms will not, of course, provide
the level of protection offered by sections 6 and 7 of the Human
Rights Act 1998, but we believe that a contracting authority could
design terms to impose obligations on the contractor which achieves
a similar effect.
3.B has your Department considered developing
standard contractual terms for the protection of Convention human
rights, whether between a public authority and a private sector
service provider or between users and providers?
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.
3.C If such a policy were to be encouraged,
is there any way in which public authorities could be required
to insert contractual terms protecting human rights when they
contract out public services, and could public authorities be
required to revise contracts that do not contain human rights
clauses?
I do not think that it would be possible to
require public authorities to insert contractual terms. Unilateral
imposition of contractual terms post hoc is problematic and it
would be inappropriate for public authorities to re-negotiate
all the contracts to which they are committed.
26 January 2004
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