16.Memorandum from British Irish Rights
Watch
1. British Irish RIGHTS WATCH is an independent
non-governmental organisation and registered charity that monitors
the human rights dimension of the conflict and the peace process
in Northern Ireland. Our services are available to anyone whose
human rights have been affected by the conflict, regardless of
religious, political or community affiliations, and we take no
position on the eventual constitutional outcome of the peace process.
2. We welcome this opportunity to make a
submission to the Joint Committee on Human Rights' call for evidence
on the meaning of "public authority" for the purposes
of the Human Rights Act 1998.
Is the meaning of public authority under the Human
Rights Act, as interpreted by the courts, the right one?
3. In our view, the courts' interpretation
is wrong and has subverted the intention of Parliament. As the
joint Committee rightly says, during the debates on the Human
Rights Bill, Parliament took the view that responsibility for
compliance with Convention rights under section 6(3)(b) would
depend, not on the status of the organisation concerned, but on
the nature of the functions it performs, in order to take account
of the large number of private bodies exercising public functions.
In following Callin v Leonard Cheshire Foundation, the courts
have narrowed that intention considerably and have created opportunities
for private bodies that exercise public functions to evade the
provisions of the Human Rights Act and for lesser standards to
apply to such bodies than apply to "pure" public bodies.
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?
4. We can foresee a number of impacts. Our
greatest concern is that private bodies exercising public functions,
such as private schools, prisons and hospitals, or housing associations,
will be exempt from the standards laid down in the European Convention
on Human Rights. The Court of Appeal in Callin suggested that
private bodies could be bound to adhere to those standards by
contract. If the Court of Appeal was envisaging contracts between
providers of services and their users, then those obtaining public
services from private bodies would only have recourse to individual
actions for damages in order to enforce their human rights, and
would lose the benefits of the public law remedies available by
way of judicial review. They might be able to obtain financial
compensation for any breach of their human rights, but they might
not be able to force the body to change its practices. In the
case of private bodies that provide public services under a contract
from a "pure" public authority, the user of the services
would not necessarily have any contractual relationship with the
provider, and would have to seek a remedy from the public authority
if it failed to enforce its contract in order to protect the user's
human rights. Such users would have fewer rights than those obtaining
services from public authorities. The courts' interpretation will
lead to an undesirable two-tier hierarchy of rights, with those
receiving public services from public authorities having better
human rights protection than those obtaining identical services
from private bodies.
5. One of the benefits of the incorporation
of the European Convention on Human Rights into domestic law was
a reduction in the number of cases where people whose human rights
had been violated would need to have recourse to the European
Court of Human Rights. If those affected by public functions exercised
by private bodies are deprived of recourse under the Human Rights
Act, they will have no option but to seek redress in Europe. However,
any such course of action will be problematic, because they can
only bring a case against the government, for failing to put in
place adequate measures to protect their rights, rather than against
the private body which has directly violated their rights. The
European Court is naturally reluctant to dabble in private law,
and here again there is the potential for less good human rights
protections for those affected by public functions exercised by
private bodies.
6. If we are right that one of the consequences
of the courts' interpretation will be second-class human rights
protection for those dealing with private bodies, then there is
a danger that "pure" public authorities will seek to
evade the provision of full human rights protection by privatising
even more of their functions than at present.
What steps, if any, should be taken to address
any potential gaps in Human Rights Act protection and accountability,
following the Leonard Cheshire case?
7. In our view, the law should be amended
to reflect the original intention of Parliament.
Can any alternative means, apart from section
6(3)(b), (such as contractual terms) effectively fill any potential
gaps in human rights protection?
8. We have already set out our objections
to contractual mechanisms and to enforcement against a delegating
authority in paragraph 4 above. The enforcement of horizontal
rights between private persons by virtue of the obligation on
the courts to uphold human rights suffers from similar problems.
A private person whose human rights had been violated would not
be able to invoke public law remedies against a private body and
would thus have less protection, even though the courts ought
to apply human rights standards to the private litigation. There
is also a considerable risk that the courts would only feel obliged
to apply human rights standards to their own functions, such as
ensuring a fair hearing, and would decline to venture into the
arena of enforcing human rights standards in the performance of
public functions by the private body—indeed, Callin would
appear to be an example of the courts doing just that.
25 April 2003
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