15.Memorandum from the British Institute
of Human Rights
Whether in your view the meaning of public authority
under the Human Rights Act, as interpreted by the Courts, is the
right one?
1. The concern which has led to this Parliamentary
inquiry arises out of the so-called "protection gap"
in the definition of "public authority" in the Human
Rights Act 1998 (the Act). In BIHR's view, the recent line of
authorities has led to a section of our society being excluded
from the protection of the European Convention of Human Rights
(the Convention) on account of the narrow definition being given
to what is a "public authority" for the purposes of
section 6(3)(b) of the Act.
2. Before considering the test for section
6(3)(b) public authorities and the current decisions on it we
wish to draw attention to the legal complexity which now affects
this issue. This is one of the main reasons why corrective measures
are called for.
3. In 2002 BIHR undertook a study of the
impact of the Act on the voluntary sector and the need for a human
rights commission or similar body. The research found that the
Act is little understood in the voluntary sector.[99]
If it is little understood amongst the voluntary sector, the substance
of its provisions are virtually unknown to the general public.
BIHR therefore gives priority in its work to public education,
training for the voluntary sector via its community outreach programme,
and training for providers of public services.
4. To try and describe the nature of the
rights guaranteed under the Convention is hard enough. To try
to inform anyone other than a lawyer of the test for which bodies
might be caught by section 6(3)(b) is virtually impossible. The
complexity of approach taken by the Courts is such that those
who advise potential victims are unable to predict with any confidence
the scope of the Act in this crucially important respect. In practice
therefore, large numbers of individuals who might otherwise benefit
from reliance upon their Convention rights remain ignorant of
its application to them.
5. It should be remembered that very often
it is the most vulnerable in our society who have most need of
the protection of the Act. Those persons are also most likely
to be deterred by the legal uncertainty. The anxiety and disruption
caused by seeking advice, contemplating legal proceedings and
initiating litigation should not be underestimated. It should
not be necessary for individuals to have to bring legal proceedings
to assert their rights. It should suffice for those that represent
them (often lay advisers) to raise with the particular authority
the Convention rights which are not being met. Where a body is
unsure whether or not the Act applies to it at all, it is most
likely to resist such a claim.
6. Those bodies to whom the Act was intended
to apply should be aware of its application, without the need
for litigation, so that they can take appropriate steps to ensure
their practices and procedures are Convention compliant. Regardless
of any other consideration, the doubt and uncertainty over the
application of section 6(3)(b) is a deeply undesirable state of
affairs.
7. The effect of the Leonard Cheshire[100]
decision is such that a range of bodies to whom "pure"
public authorities have contracted out their services are falling
outside the ambit of the Act. From statements made in Parliament
it seems that the Courts have narrowed the definition of "public
authority" for the purposes of section 6(3)(b) beyond that
which was intended. The Lord Chancellor described the government's
intention as follows:"[we] have also decided that we should
apply the Bill to a wide rather than a narrow range of public
authorities so as to provide as much protection as possible to
those who claim their rights have been infringed".[101]
8. The courts have expressly recognised
that Parliament's intention was to give a generous interpretation
to the Act (see paragraph 58 of the Court of Appeal's judgment
in the Poplar case[102]
and Lord Hope of Craighead in the Kebilene case[103]).
The practical effect, however, of the Leonard Cheshire
case is restrictive and does not give effect to Parliamentary
intention.
9. It seems that a major impetus for this
has been the reluctance of the judiciary to separate the tests
for amenability to judicial review from the test for what is a
public authority under section 6 of the Act. Whilst BIHR can appreciate
the legal policy reasons for wishing to keep these in tandem,
it is submitted that the rationale for the restrictions on the
ability to bring judicial review proceedings does not justify
narrowing the application of the Act. Kate Markus has set out
in her article "Leonard Cheshire Foundation: what is a public
function?"[104]
ways in which this rationale differs sharply from that underlying
the approach to liability under the Act.
10. BIHR accepts that no one test for the
purposes of section 6(3)(b) can be determinative and that the
test cannot be purely function based. Even if one takes function
as the starting point, it is necessary then to develop a list
of indicators which will determine when a function is public—this
will inevitably bring one back to considerations of the nature
of the provider, the source of power etc. The real question it
seems is the relative weight to be given to the different indicators.
This is, in BIHR's view, where the decision in the Leonard
Cheshire case can be criticised. Stanley Burnton J can be
said to have given too much weight to the nature of the provider,
the absence of a statutory source of power and the degree to which
that provider was "enmeshed" with the local authority.
This was reflected in Lord Woolf's conclusion that the Leonard
Cheshire Foundation was "not standing in the shoes of the
local authority".
11. BIHR takes the view that these considerations
should have been given less weight, while greater weight should
have been given to the fact that the care home was assisting a
local authority carry out a function which, if provided directly
by the local authority, would unquestionably have been caught
by the Act.
12. Both Stanley Burnton J and Lord Woolf
in the Court of Appeal appear also to have been greatly influenced
by the fact that the function provided to private residents of
the care home was not said to be any different to that provided
to the local authority placed residents. What the Judges see as
an anomaly, that is private residents receiving different protection
to local authority placed residents in the same home, BIHR views
as a natural consequence of an individual exercising his or her
choice to buy in a private service. Similarly, if a parent decided
to pay for private piano lessons, it could not sensibly be said
that the teacher was carrying out a public function for the purposes
of the Act, whereas such lessons provided by the Education Authority
would. It is where an individual is dependent on public authorities
for a particular service or subject to coercive power that the
protection of the Convention needs most to be engaged.
13. The Court expressed concern over the
difference in protection afforded to residents within the same
care home. BIHR believes this is a logical and easily understandable
difference. What is not understandable or desirable is a difference
in protection afforded to those residents placed by a local authority
in a care home which it runs itself as against that afforded to
those the local authority places in privately run homes.
This response was drafted for The British Institute
of Human Rights by Melanie Carter of the Public Law Group, Mayer
Brown Row and Maw LLP. This submission does not necessarily represent
the views of any individual governor of BIHR.
14. It has been suggested that a more generous
interpretation of section 6(3)(b) would result in a range of private
sector providers being inappropriately brought with the Act's
remit. One such example is said to be the owners of "bed
and breakfast hotels" that house homeless persons on behalf
of a local authority. BIHR considers, however, that it would be
both desirable in policy terms and consistent with the requirements
of the Convention itself for such entities and/or persons to be
caught. Convention case law has made it clear that states cannot
shift responsibility through delegation to private bodies. [105]Moreover,
state responsibility attaches to the acts of private individuals
if the state has facilitated or colluded in such acts. [106]Article
1 of the Convention applies a doctrine of positive obligations
under which states can be responsible for the acts of private
individuals (quite apart from the positive obligations arising
under the individual articles). [107]Thus,
private contractors who undertake to carry out a service for a
public authority should be expected to meet the standards that
would otherwise be expected of that authority.
What, in practice, might be expected to be the
impact of the definition of public authority applied by the courts
for the protection of human rights?
15. We have set out above the ways in which
the doubt and confusion over this issue can lead to a loss of
protection for individuals under the Act. For example, will all
new foundation hospitals (The Health and Social Care (Community
Health and Standards) Bill makes provision for private companies
and charities to apply to become foundation hospitals), be considered
to be public authorities under the Act? BIHR's believes that all
foundation hospitals, which will be providing front-line health
care—undoubtedly therefore in BIHR's view a public service
to which the Act should apply—must be considered to be "public
authorities" under the Act.
16. We have also drawn attention to the
undesirable state of affairs in which it depends on where you
are placed by a local authority as to whether or not you enjoy
Convention rights. One example of the practical impact of the
narrow definition applied by the Courts is in the area of residential
and nursing homes for older people. By March 2001, the independent
sector provided 92 per cent of all homes and 85 per cent of places
in residential care homes. In England alone this means that 355,000
older people are without any guarantee that their fundamental
human rights will be protected. [108]
What steps, if any, should be taken to address
any potential gaps in Human Rights Act protection and accountability,
following the Leonard Cheshire case?
17. BIHR was disappointed that permission
was refused for the Leonard Cheshire case to go the House
of Lords on appeal. It considers that the issue at hand is one
of fundamental public importance. Guidance from the House of Lords
would at this stage have been invaluable.
18. It may be, however, that the Government
needs to address this and to promote legislative change since
the issue has not been (and perhaps cannot be) satisfactorily
determined by the courts. Where the dividing line falls between
public and private is in part a political question. It is probable
that Parliament intended a wider range of bodies to come within
s 6(3)(b) than that determined by the Courts.
Whether any alternative means, apart from section
6 (3)(b), (such as contractual terms) could effectively fill any
potential gaps in human rights protection?
19. BIHR suggests that a dual approach may
need to be taken. First, the courts need to afford greater weight
to those indicators of "public function" which lead
to a generous interpretation. Second, the Government needs to
consider legislative change. One option might be for the existing
test to remain but for the Government to introduce a power to
designate by Order functions which, without prejudice to the generality
of the test in section 6, are to be taken as "public functions".
This could put beyond doubt, for instance, that a body such as
the Leonard Cheshire Foundation was a "public authority"
when carrying out functions pursuant to an arrangement under section
21 and 26 of the National Assistance Act 1948.
20. Such a measure recognises that a comprehensive
list is impossible. The purpose of the Schedule would be to put
beyond doubt contested functions and to indicate to the courts
in their interpretation of the test for "public authority",
the breadth of bodies to be included. The power to designate functions
could be subject to affirmative resolution.
21. BIHR does not favour the suggestion
that Convention protection could be achieved purely by contractual
provision. It understands that many local authorities are in fact
already including Convention compliance terms in its contracts
with outside contractors. This is entirely desirable, but it is
not sufficient because it creates no individual rights. In the
Leonard Cheshire case, the residents needed a remedy directly
against the care home's owners; damages from the local authority
would not have sufficed. If, in policy terms, Convention protection
is justified, the individual in question should be able to exercise
his or her rights directly in an action under the Act. Indirect
protection moreover is not sufficient to promote the rights-based
culture envisaged by the introduction of the Human Rights Act
1998.
7 May 2002
99 BIHR, "Something For Everyone: the Human Rights
Act and the Need for a Human Rights Commission", written
by Jenny Watson, 10 December 2002. Back
100
R v Leonard Cheshire Foundation [2002] H.R.L.R.30. Back
101
Lord Irvine, the Lord Chancellor, in the second reading of the
Human Rights Bill, HL Deb, 3 November 1997, col 1241. Back
102
Poplar Housing and Regeneration Community Association Ltd v
Donoghue (2001) 33 HLR 823-846. Back
103
R v Director of Public Prosecutions, ex p. Kebilene [2002]
2 AC 326. Back
104
[2003] E.H.R.L.R 92. Back
105
Van der Mussele v Belgium (1983) 6 EHHR 163. Back
106
Lopez-Ostra v Spain (1994) 20 EHHR 277. Back
107
"Although Article 1 is not among the Convention rights, which
have been made part of UK law by the Human Rights Act, its influence
has so permeated the interpretation of the substantive Convention
rights that our national Courts have rightly treated positive
obligations as being imposed on those public authorities, which
exercise relevant functions on behalf of the state." Joint
Committee on Human Rights, Sixth Report, "The Case for a
Human Rights Commission", HC 489-1, 19 March 2003, para 27. Back
108
Community Care Statistics 2001 www.doh.gov.uk/public/sb0129.htm
as quoted by Help the Aged in a Paper for the Equality and Diversity
Forum, April 2003. Back
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