18.Memorandum from JUSTICE
INTRODUCTION
1. JUSTICE is an all-party, law reform and
human rights organisation, whose purpose is to advance justice,
human rights and the rule of law. It is the British section of
the International Commission of Jurists.
2. JUSTICE welcomes the Committee's inquiry
into the meaning of "public authority" under section
6 of the Human Rights Act 1998 (hereafter "HRA").
3. JUSTICE was granted permission to intervene
in proceedings before the Court of Appeal in R (Callin and
Heather) v Leonard Cheshire (hereafter "Leonard Cheshire")[109]
concerning the application of section 6(3)(b) of the HRA. A copy
of our intervention in that case is enclosed with this submission.
The basis for the intervention was our view that the meaning of
"public authority" in section 6 was an issue of broad
public importance and fundamental to the application of the HRA
generally. The Court referred to JUSTICE's submissions as being
"of considerable virtue".[110]
Whether in your view the meaning of public authority
under the Human Rights Act, as interpreted by the courts, is the
right one?
4. No. In JUSTICE's view, the current meaning
given to "public authority" under section 6 HRA is too
narrow.
5. There is no controversy over the scope
of section 6(1) HRA as it applies to "pure" public bodies
acting in their own right, eg a government department or local
authority providing accommodation directly to an individual.
6. Similarly, it is common ground that the
natural and ordinary language of section 6(3)(b) HRA provides
that an otherwise private body may be a "public authority"
for the purposes of section 6(1) where it performs a "public
function"what is elsewhere termed a "hybrid"
public authority. [111]Section
6(5) provides that such a hybrid body is only a public authority
in respect of its public functions, however, and not its private
acts.
7. The essential issue then, is when is
an otherwise private body deemed to be performing a "public
function" within the meaning of section 6(3)(b)? Since "public
function" is not defined by the HRA, it is a question of
construction to be answered by the courts.
8. In Poplar Housing and Regeneration
Community Association Ltd v Donoghue (hereafter "Donoghue"),[112]
the Court of Appeal held that the terms "public authority"
and "public function" in section 6 HRA, "should
be given a generous interpretation".[113]
9. However, while the Court was prepared
to interpret "public function" generously, it was unwilling
to offer a general test for determining whether a particular function
was public for the purposes of section 6(3)(b). Rather, it preferred
the view that "there is no clear demarcation line which can
be drawn between public and private bodies and functions. In a
borderline case . . . the decision is very much one of fact and
degree".[114]
The Court stated: [115]
What can make an act, which would otherwise be
private, public, is a feature or a combination of features
which impose a public character or stamp on the act. Statutory
authority for what is done can at least help to mark the act as
being public; so can the extent of control over the function exercised
by another body which is a public authority. The more closely
the acts that could be of a private nature are enmeshed in the
activities of a public body, the more likely they are to be public.
However, the fact that the acts are supervised by a public regulatory
body does not necessarily indicate that they are of a public nature.
[emphasis added].
10. Accordingly, the Court confined itself
to offering some indicators for when a function might be public
for the purposes of liability under the HRA. It noted that the
mere fact a public body used the services of a private body to
carry out its public duties did not render that private body's
actions public in nature. [116]More
specifically, it found that "[t]he act of providing accommodation
to rent is not without more a public function for the purposes
of section 6 of the Human Rights Act 1998".[117]
11. While JUSTICE considers that the particular
conclusion in Donoghue was correct (the housing association
was held to be exercising a public function), in our view the
Court missed an important opportunity to establish a clear, principled
approach to the meaning of "public authority" and "public
function" within section 6 of the HRA.
12. The failure of the Court in Donoghue
to develop a principled approach was compounded by its decision
in Leonard Cheshire. In Leonard Cheshire, it was
common ground that:
(i) each Claimants' local authority
was under a statutory duty to arrange to provide their accommodation
under section 21(1) of the National Assistance Act 1948 ("NAA");
and
(ii) were a local authority to provide
accommodation to a Claimant under section 21(1) in a care home
that it itself operated, it would be performing a public function
within the meaning of section 6(3)(b) HRA. [118]
13. The Court nonetheless found that the
Defendant charity providing accommodation to an individual under
contract to a local authority pursuant to section 26 NAA "manifestly
did not involve the performance of public functions".[119]
14. Specifically, the Court of Appeal concluded
that (i) there was "no public flavour" to either the
functions of the Defendant charity, or the charity itself; (ii)
while it was providing accommodation to the Claimants in pursuance
of section26 NAA, it did not itself exercise any statutory powers
in doing so. [120]
15. In JUSTICE's view, the Court's approach
in Leonard Cheshire was flawed for three reasons: (i) it
failed to have regard to the nature of the statutory duty; (ii)
it failed to consider whether the Claimants themselves had any
choice but to accept the regime of private care; and (iii) it
gave insufficient weight to the question of public authorities
evading public liability under the HRA by contracting out the
discharge of its statutory duties to private bodies.
The nature of the statutory duty
16. First, insufficient attention was paid
by the Court to the nature of the statutory duty in question,
specifically that it is owed to particular individuals who fall
within the criteria of section 21(1) NAA. This is in contradistinction
to many statutory duties which are not referable to the interests
of particular individuals, but rather are directed towards the
promotion of some general end (eg duties on local authorities
to further conservation aims, [121]provide
best value, [122]or
promote economic well-being[123]).
In other words, there is an important distinction to be made between
private bodies discharging public duties towards general ends,
and those which discharge public duties towards particular individuals.
It is readily apparent that the duty to accommodate under section
21(1) NAA is one that is directly referable to the rights of an
identifiable class of persons.
17. Moreover, a failure to provide accommodation
under section 21(1) NAA is capable of engaging not only an individual's
rights under Article 8 ECHR but also, in the case of especially
vulnerable individuals, their unqualified rights under Articles
2 and 3. Similarly, it is apparent much of the regulation attaching
to private bodies providing residential care services (eg the
Residential Homes Act 1984) is intended to ensure that appropriate
standards of accommodation and care are met.
18. JUSTICE considers the nature and purpose
of the statutory duty to be important to the question of whether
a private body is performing a "public function" within
the meaning of section 6(3)(b) HRA. In our view, the fact that
the duty being discharged is one referable to the rights of particular
individualsespecially their unqualified rightsmakes
it more likely that the actions of the private body in discharge
of that duty will attract public liability. Similarly, the fact
that a private body's activities are subject to regulation, the
purpose of which inter alia is to ensure respect for individual
rights, is another useful indicator that a private body discharging
a statutory duty that engages such rights is performing a "public
function". As we noted in our submission to the Court in
Leonard Cheshire, the important feature is the manner in
which a private body acting in performance of a statutory duty
is in a position to exercise `real power' in respect of the individuals
concerned: [124]
the key factor in determining whether or not
a public function is involved in an area where the activity in
question may be being undertaken in a different context for purely
commercial reasons (eg in most circumstances private medical provision)
is whether or not the body is in fact acting so as to assist in
the discharge of the state's role and duties (eg the provision
of a free NHS service) with the result that the body in question
is exercising real power over third parties.
The unavoidability of the private regime
19. Secondly, it is difficult to reconcile
the approach of the Court of Appeal in Leonard Cheshire with
the later approach taken by Keith J in R (A) v Partnerships
in Care Ltd. [125]Considering
the example of a private prison given in de Smith, Woolf and Jowell
Judicial Review of Administrative Action,[126]
it is apparent that Keith J attached great weight to the fact
that the Claimant in R(A)a mental patient sectioned under
the Mental Health Acthad no way of avoiding the regime
of private care. Moreover, he found that this degree of unavoidability
was what distinguished the discharge of public duties by privately-run
prisons and mental hospitals from the discharge of public duties
by privately-run residential care homes in Leonard Cheshire:[127]
[T]hose of the hospital's patients who are admitted
to the hospital under section 3 of the 1983 Act (such as the Claimant)
are admitted by compulsion and not by choice (a fact which
Stanley Burnton J rightly considered as critical in the Leonard
Cheshire Foundation case at [51] in distinguishing between a prison
and the residential care homes run by the Foundation) [emphasis
added].
20. However, it was not the absence of compulsion
which was significant in Leonard Cheshire, so much as the
absence of choice. Stanley Burnton J's judgment at first instance
refers to arrangements relating to one of the Claimants as typical:
[128]
Before she was accepted as a long-term resident
of Le Court, she lived there for an eight-week trial period. The
object of the trial was to see whether she would be accepted by
existing residents to join the community, and presumably also
for her to decide that she wanted to live there.
21. However, other than the presumption
of Stanley Burnton J that the Claimant was free to choose, there
is no evidence that she was in a position to do so. Neither the
judgment of the High Court nor the Court of Appeal makes reference
to the alternatives available to the Claimants, in particular
whether the Claimants had the option of living in a residential
care home run by their local authority.
22. Nor does the framework of the National
Assistance Act 1948 stipulate that local authorities must themselves
run some residential care homes in order to provide Claimants
with the option of avoiding privately-run facilities.
23. In other words, it is open to a local
authority to make arrangements under section 26 NAA to meet all
its residential care requirements.
24. In such a position, JUSTICE submits
that the mere absence of compulsion is not sufficient to remove
the public character from the discharge of a public duty by a
private body. The very fact that someone's support has fallen
to a local authority under section 21(1) NAA tends to shows that
they lack the private means to make appropriate contractual arrangements.
There is also the question of competence, which is material when
dealing with many recipients of community care, but yet did not
appear to be considered by the Court.
25. The reliance of the Court of Appeal
on contractual alternatives to Claimants would be attractive were
there any evidence that the placement of the Claimants was formally
regulated in such a way that would allow for the negotiation of
appropriate terms. Unfortunately, the High Court judgment indicates
the contractual nexus was largely unwritten: [129]
As is often the case in respect of long-term
residents at Le Court, there appears to be no written agreement
relating to her residence between Surrey County Council, as her
placing/funding authority, and Leonard Cheshire. It is not disputed
that there is a contractual agreement between them. That agreement
is presumably to be implied from the circumstances and their acts
when it was concluded, subject to any subsequent variation.
26. There was evidence of a written licence
between one of the Claimants and Leonard Cheshire (para 37). However,
there was no evidence that the Claimant herself or her representatives
had any involvement in its formation. Since the placement was
itself unwritten and by arrangement of the local authority, it
seems plausible that the Claimant may have had no knowledge of
its terms.
27. The apparent point being relied upon
by the Court in Leonard Cheshire, then, was thatunlike
patients sectioned under the Mental Health Act or prisoners held
in a privately-run prisonpersons in community care have
freedom of contract and could have contracted differently. As
such, it would be inappropriate for the court to confer the quality
of "public authority" where this would inhibit the marketplace
for community care services (and harm the apparent public interest
in local authorities being able to reduce their costs by farming
out services).
28. If patients housed under section 21
NAA were given a choice by their local authority as to which care
home they enteredone run by the authority itself as against
one run privatelythen one could more readily agree with
the Court's analysis that they had the option of deciding differently.
29. If we accept that the absence of choice
is the compelling factor, however, then it is difficult to reconcile
the ruling of the Court of Appeal in Leonard Cheshire with
that of Keith J in R (A) v Partnerships in Care Ltd
or the Court of Appeal in Donoghue:
(i) in all three cases, bodies were contracted
to perform certain duties that otherwise fall to local authorities;
(ii) the bodies in Partnerships and
LC took private as well as public patients;
(iii) in all three cases, the functions (provision
of accommodation, provision of mental health services) are closely
regulated by statute;
(iv) in all three cases, the Claimants themselves
had little real option to avoid being subject to private contractors
in the discharge of their statutory duty.
30. JUSTICE submits that the avoidability
(or non-avoidability) of any private regime discharging public
duties is a key feature in determining whether it attracts public
liability. While it is plausible to distinguish for HRA purposes
between public and private regimes where those subject are genuinely
free to choose, it is much less so where the individual has no
practical option but to accept private provision, eg the supply
of accommodation to an asylum seeker or a recipient of income
support.
31. If "public authority" is to
be interpreted generously, as the Court held in Donoghue,
then JUSTICE submits the question of whether a given private regime
was avoidable in practical terms must be considered by the courts
with anxious scrutiny in each case.
The possibility for evasion of public liability
by public authorities
32. Thirdly, the Court of Appeal in Leonard
Cheshire failed to give sufficient weight to the possibility
of public authorities evading their liability under the Human
Rights Act 1998 by contracting out the discharge of its statutory
duties to private bodies.
33. Indeed, it was apparent in Leonard
Cheshire that the great majority of the Defendant charity's
residents were publicly funded.[130]
34. It is relevant to the question of public
liability that individuals can arrange for their own care and
thereby bypass the provisions of section 21 NAA entirely. However,
where the State takes upon the obligation of providing care under
section 21, JUSTICE submits it cannot evade its liability for
actions arising out of care by farming out responsibility by way
of contract.
35. The central flaw in the Court's reasoning
appears in the following passage: [131]
If this were a situation where a local authority
could divest itself of its Article 8 obligations by contracting
out to a voluntary sector provider its obligations under section
21 of the NAA, then there would be a responsibility on the Court
to approach the interpretation of section 6 (3) (b) in a way which
ensures, so far as this is a possible that the rights under Article
8 of persons in the position of the appellants are protected.
This is not, however, the situation. The local authority remains
under an obligation under section 21 of the NAA and retains an
obligation under Article 8 to the appellants even though it has
used its powers under section 26 to use LCF as a provider. In
addition the appellants have their contractual rights against
LCF in any event. There is also the possible protection which
can be provided by the Attorney General's role but this is not
a significant factor.
36. With respect, this ignores the extent
to which a Claimant's Article 8 rights may be engaged by the particular
way in which care is provided under section 21(1) NAA.
37. If it were correct that the substance
of the Claimants' Article 8 rights obtained only in the right
to a home generally, or the right to be supported generally, then
the Court's point would be sound.
38. However, the substance of the claim
for community care lay in the provision of support at a particular
location: the Claimants' Article 8 rights were engaged by the
specific decision to move homes.
39. If it follows that a local authority
would be liable for such a decision in respect of patients it
supported in its own care home, then it cannot be acceptable for
a public authority to evade responsibility for particular decisions
by contracting them to a private body.
40. As JUSTICE noted in its submission to
the Court of Appeal, this proposition follows from the principle
established by the Strasbourg Court that the State cannot absolve
itself from responsibility by delegating its obligations to private
bodies or individuals. [132]
41. It is analogous, too, to the special
extension of public liability under Community law to otherwise
private acts in order to prevent a state taking advantage of its
own failure to implement a directive. [133]And
it is consistent with the Canadian approach to the extension of
public liability to private bodies for "governmental"
activities under section 32 of the Charter of Rights and Freedoms
1982. [134]As
La Forest J noted in McKinney v. University of Guelph
(whether a university in its capacity as a private employer
could be liable as a "government actor" under section
32 of the Canadian Charter): "It would be strange if the
legislature and the government could evade their Charter responsibility
by appointing a person to carry out the purposes of the statute".[135]
42. JUSTICE submits, then, that a broad
and generous approach to the HRA requires the Court to address
the particular manner in which the decisions of private bodies
discharging public duties impact upon individual rights. The Court
in Leonard Cheshire itself accepted that, were there the
suggestion of a public authority using private contractors in
order to divest itself of HRA obligations, it was under a responsibility
to interpret section 6(3)(b) to ensureso far as possiblethat
individual rights were protected. [136]In
JUSTICE's view, the failure of the Court to consider the particular
manner in which the Claimants' rights were engaged can only demonstrate
the need for more anxious scrutiny in such cases.
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?
43. Schematically, the meaning of "public
authority" in section 6 HRA helps determine the scope of
the Act as a whole. The narrow meaning adopted in Leonard Cheshire
reduces the Act's scope, just as the adoption of a broader
meaning would expand it.
44. In our submission to the Court of Appeal
in Leonard Cheshire, JUSTICE noted that the definition
of "public authority" under the HRA was a "problem
of great significance" in light of the growing use of "mixed
solutions" to public service provision (eg PFIs, PPPs, service
tendering), even in traditionally state-run areas such as prisons
or hospitals. We noted that "[f]ormerly clearer delineations
between the activities of state and private sector are blurring
increasingly".[137]
45. In practical terms, the most obvious
impact of the court's definition of "public authority"
and "public function" under the HRA would be upon the
ability of local authorities to contract out ("outsource")
their services. Such outsourcing is thought to have clear financial
benefits, on the assumption that private bodies are able to deliver
services more cheaply and with greater efficiency than public
bodies performing the same task. Whatever the truth of the matter,
JUSTICE recognises there is clearly a public interest in having
local authorities run services cheaply and effectively.
46. The apparent concern, then, seems to
be that attaching public liability to private bodies discharging
public duties would make private bodies either less willing to
undertake public work or insist on being indemnified for the additional
liability such work would incur. Either alternative would reduce
the benefit to the public that outsourcing is thought to deliver.
This concern appears to underlie the reasoning of the Court of
Appeal in Donoghue and Leonard Cheshire: [138]
A public body in order to perform its public
duties can use the services of a private body. Section 6 should
not be applied so that if a private body provides such services,
the nature of the functions are inevitably public. If this were
to be the position, then when a small hotel provides bed and breakfast
accommodation as a temporary measure, the small hotel would be
performing public functions and required to comply with the HRA.
This is not what the HRA intended.
47. The subtext appears to be that, were
small hotels to be subject to the HRA where they provide temporary
accommodation on behalf of local authorities, small hotels would
simply refuse to accept individuals who were publicly-funded.
The example is a useful one, since the practice of local authorities
using private accommodation is widespread, especially in areas
with an acute shortage of public housing. Nor is the practice
limited to local government. As of 31 December 2002, there were
50,070 asylum seekers supported in private accommodation by the
National Asylum Support Service ("NASS").[139]
48. JUSTICE also accepts that a purely functional
test of "public authority" is problematic, in that it
relies on certain assumptions about functions traditionally performed
by states, together with the suggestion that some functions may
be intrinsically public. While historically the state may have
performed certain functions, that is not in itself an argument
for extending public obligations to a private body performing
those same functions on behalf of the state. Similarly, the evidence
of state practice is itself a poor guide to identifying intrinsic
public functions: different common law jurisdictions take radically
different approaches to the State's role in the provision of education
or health services. Even operating from the premise that the state
should provide universal health care, for example, does not tell
us that all such provision is necessarily public in nature: the
Canadian system of providing universal care by way of compulsory
insurance does not entail either the federal or provincial governments
to run hospitals and employ doctors on a direct basis as the NHS
requires. There is something of the naturalistic fallacy in the
reasoning that just because a state can or does provide something,
that therefore it should. The corollary, however, is also worth
emphasizing: merely because an activity may be provided privately
does not entail that it can therefore escape public liability.
Rather, JUSTICE submits, it is the extent to which the function
itself is capable of determiningin an important waythe
rights of individuals, that should suggest the need for public
liability.
49. In short, JUSTICE recognizes that there
are good grounds to be cautious about the extension of public
law obligations without proper regard for possible outcomes. Even
so, we consider that the importance of ensuring respect for human
rights in the provision of public services outweighs the potential
difficulties such an extension may involve. If the purpose of
the Act is to give further effect to rights and freedoms guaranteed
under the ECHR, it seems difficult to see how human rights can
be promoted by restrictingas the Court did in "Leonard
Cheshirethe number and quality of the bodies that are publicly
responsible.
50. We also note the criticism of a broad
definition of "public authority" offered by Professor
Oliver and relied upon at first instance by Stanley Burnton J
in Leonard Cheshire, that, were public liability to be
extended to private bodies discharging public functions, then
such bodies would themselves be deprived of the protection of
the HRA. [140]In
JUSTICE's view, this criticism seems wholly misplaced. First,
hybrid bodies would have the benefit of the saving provisions
in Articles 8-11, as the Court of Appeal itself accepted in Leonard
Cheshire[141]
Secondly, where a private body is in the position of discharging
public duties to individuals, the notion of "deprivation
of protection" must be considered in the round. In such a
context, JUSTICE questions whether the human rights of a private
body engaged in a commercial enterprise could ever be afforded
greater weight than those of the individuals who have no choice
but to be subject to its activities.
51. In summary, JUSTICE considers there
to be a direct link between the breadth of the meaning given to
"public authority" in section 6 HRA, and the promotion
of a public culture of human rights generally. While the extension
of public liability to private bodies discharging public functions
may reduce the benefits of outsourcing for public authorities,
JUSTICE considers that the extension of respect for rights to
be a more important end. JUSTICE also suspects that the burden
of public liability would, in most cases, not be as onerous as
is sometimes claimed. Similarly, the competitive nature of the
market for public sector contracts suggests that those private
bodies unwilling to shoulder the burden of public liability will
be replaced by those that are. If the economic arguments against
extending public liability are to be taken seriously, then it
is important that those in favour should also be considered.
What steps, if any, should be taken to address
any potential gaps in Human Rights Act protection and accountability,
following the Leonard Cheshire case?
52. JUSTICE submits that a three-pronged
approach is desirable.
Parliament
53. The Joint Committee's inquiry represents
an important opportunity for the legislature to further address
how the HRA should be interpreted. While the post-enactment views
of the Committee are not themselves admissible in judicial proceedings
for the purpose of interpreting legislation, a firm statement
by the Committee in favour of a broader definition of "public
authority" under section 6 HRA would doubtless draw attention
to the issue within both the legal community and the public as
a whole. Ideally, such a statement would serve to stimulate debate
and inform the deliberations of those responsible when the issue
is considered in future.
Judicial
54. The Court of Appeal should reconsider
its approach to the meaning of "public authority" under
the HRA at the earliest possible convenience. Of course, any such
reconsideration depends on the matter being pleaded on appeal
in an appropriate case. Similarly, it is hoped that the House
of Lords will have regard to the importance of this issue when
next considering whether to grant permission to appeal in an appropriate
case.
Executive
55. As a first step, the government could
itself adopt a clear commitment to a broad definition of "public
function" as a means to promoting a human rights culture.
JUSTICE notes the Secretary of State for Transport and the Regions
was an interested party in Donoghue and the Attorney-General
was a party to Leonard Cheshire. In neither case, however,
did the Government argue for a broad definition. While the Attorney-General's
intervention in Leonard Cheshire was on the basis of his
responsibility for charities, JUSTICE considers that his failure
to argue a broad definition represented a missed opportunity for
the Government to advance the purpose of the HRA "to give
further effect to the rights and freedoms" in the ECHR. As
part of a renewed commitment to this end, the Attorney-General
could undertake to intervene to speak to the importance of a broad
definition of "public authority" the next time the issue
is raised in proceedings.
56. As a last resort, where the courts fail
to adopt a broad approach, the Government should consider introducing
amending legislation to establish a broad definition.
Whether any alternative means, apart from section
6 (3)(b), (such as contractual terms) could effectively fill any
potential gaps in human rights protection?
57. No. For reasons already discussed above,
JUSTICE considers the alternative remedies suggested by the Court
of Appeal in Leonard Cheshire to be inadequate.
Accountability of the delegating public authority
58. As already noted, [142]JUSTICE
doubts whether holding a delegating public authority to account
for the acts of its private agents could be a satisfactory remedy
in most human rights cases. In Leonard Cheshire, for instance,
the substance of the Claimants' Article 8 complaint was not in
respect of the general obligation of their local authorities to
provide them with accommodation under section 21 NAA, but in respect
of the specific decision of the private body to close the particular
care home in which they lived (something over which the relevant
authorities had no control). JUSTICE submits that such an absence
of direct control likely to be true in the great majority of cases
involving the use of private bodies to discharge public duties.
It would, after all, defeat the very purpose of outsourcing if
a local authority had to retain day-to-day managerial responsibility
over the care of patients, etc.
59. Accordingly, while JUSTICE accepts there
are likely to be some cases in which proceeding against the delegating
authority will provide a sufficient remedy to prevent a breach
of rights, it doubts such a cause of action will be adequate in
most cases.
Inclusion of human rights protection in terms
of contract
60. The inclusion of appropriate contractual
terms within agreements relating to the provision of public services
were also suggested by the Court of Appeal in Leonard Cheshire
as an alternative means of ensuring protection for Convention
rights: [143]
If the arrangements which the local authorities
made with [the Respondent charity] had been made after the HRA
came into force, then it would arguably be possible for a resident
to require the local authority to enter into a contract with its
provider which fully protected the residents' Article 8 rights
and if this was done, this would provide additional protection.
Local authorities who rely on section 26 should bear this in mind.
Then not only could the local authority rely on the contract,
but possibly the resident could do so also as a person for whose
benefit the contract was made.
61. This suggestion is curious, particularly
given the Court's apparent concern that attaching public liability
to private bodies discharging statutory duties would inhibit the
ability of local authorities to outsource their functions. It
is difficult to see how private contractors would be less reluctant
to take on contractual obligations than public obligations. Certainly
it is questionable whether, in Leonard Cheshire, the private
charity would have been willing to agree terms allowing patients
to challenge its commercial decisions (eg closing a care home)
on human rights grounds.
62. The more important objections, though,
relate to the relative bargaining position of the parties and
the issue of privity of contract. First, in JUSTICE's view, the
suggestion of the Court of Appeal that a patient could require
the local authority to contract on terms that "fully protected"
his or her Convention rights appears fanciful (particularly given
the care home context). It ignores the practical realities by
which most individuals come to be subject to the private provision
of public responsibilities, eg the patient sectioned in a private
mental hospital, or the asylum seeker dispersed to private accommodation.
Just as such regimes are rarely avoidable, so too is it unlikely
that somebody subject to a private regime would enjoy equality
of bargaining power with the private body. And, as noted before,
it is unsatisfactory to leave the task of negotiating such protection
to the same public bodies who are themselves concerned to obtain
the benefits of outsourcing.
63. Secondly, it is not clear that an individual
subject to a private regime will always possess the necessary
standing to rely on the contract in question. The position of
potential claimants is certainly improved by the coming into force
of the Contracts (Rights of Third Parties) Act 1999. However,
even read consistently with the provisions of the HRA, it is unlikely
that an individual will be able to rely on contractual terms between
a public authority and a private body discharging a public duty
unless specifically provided by the contract. [144]It
is clear "on a proper construction of the contract"
it appears that the parties intended the term to be enforceable
by third parties. [145]Private
bodies would also be able to rely on the usual defences available
under contract law, which differ in kind from those available
under public law, eg mistake, subsequent impossibility and frustration,
etc.
64. While JUSTICE would welcome the inclusion
of contractual terms for the benefit of third parties in contracts
between public authorities and private bodies discharging public
duties, it is sceptical that such a measure itself would be sufficient
to close the current "protection gap" brought about
by the narrow meaning given to "public authority" by
the Court of Appeal.
"Horizontal" application of rights between
two private persons
65. JUSTICE welcomes the Committee's invitation
to consider the issue of "horizontality" in relation
to human rights protection. However, JUSTICE considers that it
would be better to address that important issue on its own terms,
rather than in the context of the liability of private bodies
for performing public duties. We could not hope to do justice
to that issue here.
7 May 2003
109 [2002] EWCA Civ 366 Back
110
Ibid., para 10. JUSTICE is most grateful to Philip Havers QC and
Thomas De La Mare for their work in preparing JUSTICE's submissions
to the Court of Appeal in Leonard Cheshire. Back
111
The term "public function" is shorthand for the actual
language of section 6(3)(b): "functions of a public nature".
Note also the distinction between "pure" and "hybrid"
public bodies is also given as that between "standard"
and "functional" public authorities: see Clayton &
Tomlinson, The Law of Human Rights (Oxford: OUP, 2000)
para 5.08; Donoghue, para 63 per Lord Woolf CJ. Back
112
[2001] 3 WLR 183. Back
113
Para 58. Back
114
Para 66. The Court of Appeal in Donoghue noted that "[w]hile
HRA section 6 requires a generous interpretation of who is a public
authority, it is clearly inspired by the approach by the courts
in identifying the bodies and activities subject to judicial review.
The emphasis on public functions reflects the approach adopted
in judicial review by the courts and textbooks since the decision
of the Court of Appeal (the judgment of Lloyd LJ) in R v Panel
of Takeovers and Mergers ex parte Datafin [1987] QB 815."
(para 65(i). Back
115
Para 65(v). Back
116
See paras 58-59: "The purpose of section 6(3)(b) is not to
make a body, which does not have responsibilities to the public,
a public body merely because it performs acts on behalf of a public
body which would constitute public functions were such acts to
be performed by the public body itself. An act can remain of a
private nature even though it is performed because another body
is under a public duty to ensure that the act is performed." Back
117
Para 65(iii). Similarly, the Court noted obiter dictum that if
a local authority sent a child to a private school, "this
would not mean that the private school was performing public functions.
The school would not be a hybrid body. It would remain a private
body" (para 60). Back
118
Para 15, per Woolf CJ. Back
119
Para 35. Back
120
Ibid. Back
121
Section 12(1)(a) of the Land Drainage Act 1991 and section 16(1)(a)
of the Water Resources Act 1991 each place a duty on local authorities
to exercise their regulatory powers inter alia "as
to further the conservation and enhancement of natural beauty
and the conservation of flora, fauna and geological or physiographical
features of special interests". Back
122
Section 3(1) of the Local Government Act 1999 imposes a duty on
authorities to "make arrangements to secure continuous improvement
in the way in which its functions are exercised, having regard
to a combination of economy, efficiency and effectiveness". Back
123
Section 4(1) Local Government Act 2000 provides that "[e]very
local authority must prepare a strategy . . . for promoting or
improving the economic, social and environmental well-being of
their area and contributing to the achievement of sustainable
development in the United Kingdom." Back
124
Para 9 Cf also 583 HL Official Report (5th Series) col 808, in
debates over the then-Human Rights Bill where the Lord Chancellor
justified the proposed general definition of "public authority"
in the following terms "because we want to provide as much
protection as possible for the rights of the individual against
the misuse of power by the State" [emphasis added]. Back
125
[2002] EWHC Admin 529. Back
126
(5th edition) para 3-031. Back
127
Para 25. Back
128
[2001] EWHC Admin 429, para 35. Back
129
Para 36. Back
130
Para 23. Back
131
Para 33. Back
132
See Van der Mussele v. Belgium (1983) 6 EHRR 163,
esp. paras. 28-30; Cosado Coca v Spain (1994) 18
EHRR 1, para 39. Accordingly, the state is also responsible for
the actions of any such delegate and must provide an effective
remedy against their actions: Costello-Roberts v UK
(1993) 19 EHRR 112, esp. paras 29 to 32 and 37 to 40. Back
133
See Marshall v Southampton and South West Area Health
Authority (ECJ, case 152/84) para 49. Back
134
Note that the reference to "government" in section 32
of the 1982 Charter is narrower than that of section 6 HRA. See
JUSTICE submission, paras 16-18 and the judgment of La Forest
J in Eldridge v AG for British Columbia [1997] 3
SCR 624. Back
135
[1990] 3 SCR 229. Back
136
Para 23. Back
137
Para 2. Back
138
Donoghue, para 58. Back
139
Home Office, Asylum Statistics: 4th Quarter 2002, pg 7. NASS uses
private accommodation provider to house accommodation to asylum
seekers, both by way of emergency support under section 98 of
the Immigration and Asylum Act 1999 and by way of longer term
support under section 95. Back
140
Judgment of Stanley Burnton J, para 11; citing Oliver [2000] Public
Law 476: "It would be very tempting for the Courts, committed
to maximising the protection of Convention rights, to give a wide
meaning to "public authority" but this could deprive
a wide range of bodies of the protection of the [HRA]." Back
141
Para 28. Back
142
See paras 37-38 above. Back
143
Para 34. Back
144
Section 1(1) Contracts (rights of third parties) Act 1999. Back
145
Section 1(2). Back
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