19.Memorandum from the Law Society
INTRODUCTION
1. The Human Rights Act 1998 (HRA) section
6 provides a three-pronged statement of "public authority"
which includes:
"(3)(a) a court or tribunal,
(b) any person certain of whose functions are functions
of a public nature, . . .
(5) In relation to a particular act, a person is
not a public authority by virtue only of subsection (3)(b) if
the nature of the act is private".
2. We believe that the meaning of "public
authority" under the HRA needs clarification. Section 6 and
the case law interpreting the meaning of "public authorities"
has led to uncertainty/gaps in the accountability of private bodies
discharging the functions of public bodies (hybrid-public bodies)
and inconsistencies in human rights protection.
3. During the Parliamentary Debates on the
Bill that became the HRA it was clear that a broad and flexible
interpretation of "public authority" was seen by Parliament
as necessary to take account of the increasingly large number
of private bodies exercising public functions. Parliament held
that compliance would depend on the nature of the functions of
a body rather than its status. During the passage of the Bill
through the House of Lords, the Lord Chancellor clarified the
desired impact of section 6(3)(b):
"[Section 6(3)(b)] is there to include bodies
which are not manifestly public authorities, but some of whose
functions only are functions of a public nature. It is relevant
to cases where the courts are not sure whether they are looking
at a public authority in the full blooded [section 6(1)] sense
with regard to those bodies which fall into the grey area between
public and private. The Bill reflects the decision to include
as `public authorities' bodies, which have some public functions
and some private functions".[146]
4. Regrettably, the Courts have not taken
account of Parliament's view when adjudicating upon the scope
and reach of "public authority" under HRA. There may
be strong jurisprudential reasons for not seeking to ascertain
the intention of Parliament by recourse to these debates but,
inevitably, in reviewing the Court's current approach to the meaning
of this expression it is both legitimate and important to understand
that Parliament seems to have intended that the fact of privatisation
should not lead to acts falling outside the ambit of Convention
protection if they are in fact of a public nature. Parliament's
over-riding intention was to bring rights home, by creating in
our own legal system a domestic remedy in circumstances where
the UK might be liable before the Strasbourg institutions. It
was therefore intended that responsibility under the Act should
be as broad as possible, to ensure that to the greatest possible
extent, a person claiming to be a victim of violation of rights
should be able to seek a remedy here. It is regrettable that there
is a growing disparity between responsibility on the international
plane and liability under the Act.
QUESTIONS
Whether in your view the meaning of public authority
under the Human Rights Act, as interpreted by the courts, is the
right one?
5. To date the Courts' approach has been
restrictive. The current approach seems to require that a hybrid
body will, unless exercising statutory powers, or powers delegated
by the State, fall within the ambit of section 6(3)(b) only where
its structures and work are inextricably enmeshed with those of
a pure public authority. Most notably, the Cheshire[147]
case held that where a public authority chooses a private body
to exercise some part of its functions, those functions are considered
to be private and the private body is not responsible for compliance
with the HRA unless the two bodies are enmeshed, as in the Poplar
case.[148]
6. Increasingly, the notion of formal delegation
of functions has acquired an importance in the case law. The danger
of such an approach is that it requires a source rather than a
functions test of what constitutes a public function whereas the
HRA defines a public authority solely in terms of a functions
test.
7. The Joint Committee has rightly queried
the validity of this approach. It would certainly be inapposite
to suggest a test of "public authority" by which any
entity standing in the shoes of the State would automatically
qualify. Take, for example, the position of a private music teacher
who provides piano lessons at home. Clearly, the provision of
education is a State function but the position of the music teacher
shows that not every State function means that the body exercising
it is a "public authority." On the other hand a source
test that ignores the true relationship between the body in question
and the State will leave many Convention rights against the State
unprotected and will fail to achieve the obvious intention of
"bringing rights home."
8. In our view the meaning of the term "public
authority" as interpreted by the Courts is not the right
one. It is far too narrow and ignores the practical ramifications
of increasing privatisation in the "Contracting State."
It needs to be replaced by a functions as opposed to a source
test of power which takes account of the practical relationship
between, on the one hand, the function being exercised and, on
the other, the protection of Convention rights against the State.
In particular, delegation by the pure public authority should
not be seen as the touchstone of the exercise of public functions
by the hybrid authority. It might be helpful to use the ECJ's
approach to an emanation of the state, for which see Foster
v. British Gas. [149]
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?
9. In practical terms the impact of the
current and restricted interpretation of the meaning of the term
"public authority" in the HRA is likely to be that much
privatisation and off-loading of State functions to private bodies
will lead to an unjustified loss of Convention protection under
the HRA.
10. The past decades have seen a widespread
implementation of the policy to outsource or contract out for
the provision of services in a variety of sectors, which hitherto
have been the sole remit of public bodies. The introduction of
the concept of the purchaser-provider split, most notably in areas
of the welfare state, has brought with it several difficulties
in practical enforcement of statutory rights and obligations.
These problems have been brought into sharp relief by the limits
of the HRA in its present form, as interpreted by the Courts.
11. Below are examples of the wide variety
of settings where a decision by a pure public body to contract
out for the provision of services (and thus to discharge its statutory
obligation) could result in an associated removal of rights protection
for the recipients of those services.
— Prisons and prison transport. The
Government's PFI plans for prison construction.
— Care homes for disabled and older
people, including these where nursing care is provided. In practice,
state run provision of care homes is being rapidly phased out,
with most local and health authorities contracting with the private
and voluntary sector instead.
— Hospitals where the NHS discharges
its obligations via a contract with private providers, including
for mental health treatment, which may involve compulsory detention
of patients.
— Utilities, where former state providers
with monopolies still enjoy elevated status notwithstanding the
effective privatisation of the system.
— Social services, including care homes
for disabled or otherwise vulnerable children whose parents are
unable to continue to care for them. This category would also
include provision of home care and personal care services, which
is invariably contracted out to private providers.
— Education provision, where private
providers are increasingly involved in management of education
deliverers (schools), and examination boards.
What steps, if any, should be taken to address
any potential gaps in Human Rights Act protection and accountability,
following the Leonard Cheshire case?
12. The only realistic step, following cases
such as Leonard Cheshire, to achieve practical and effective Convention
protection is to revisit HRA section 6(3)(b) in the form of a
more precise and expanded definition of the term "public
authority".
Whether any alternative means, apart from section
6 (3)(b), (such as contractual terms) could effectively fill any
potential gaps in human rights protection?
13. No alternative means exist, in our view,
of achieving practical and effective Convention protection other
than the passing of primary legislation. In particular, suggestions
of making the "pure" public authority accountable, or
of the inclusion of a contractual solution are unrealistic and
will leave many victims unprotected.
14. Accountability of the delegating
public authority
When an individual is unable to obtain redress
from a private service provider, it may be argued that redress
can be obtained from the delegating public authority, under section
6 HRA. This is, in our view, unrealistic. In a judicial review
case decided before the HRA came into force, involving the closure
of a residential care home, the claimants sought relief not merely
against what would now be argued to be the hybrid authority, (a
charity managing the care home), but also against the pure public
authority (the local authority) which, albeit not delegating functions
to the charity, had entered into a statutory arrangement with
the charity under section 26 of the National Assistance Act 1948.
[150]
15. In that case the judge held that no
relief could be granted against the local authority which was
powerless to prevent the charity from taking a decision to close
the home. A recent case[151]
(without deciding the point) raises the possibility of a local
authority being judicially reviewed for restricting its level
of charges with the implied potential for requiring an authority
to increase its level of payment so that a private care home would
not close. However, even if an authority could be subject to judicial
review in this manner it is unlikely that the Court would expect
it to subsidise a residential care home where—as is often
the case—the majority of patients were self-funding.
16. We believe it is likely that there will
be a great many cases where the pure public authority cannot practically
be made liable for the default of a notional hybrid authority.
Persons in this position might be termed "stranded victims",
that is persons for whom the State has Convention responsibilities
(under Article 1 ECHR) but where the Convention violation has
been inflicted by a non-public body.
17. Inclusion of human rights protection
in terms of contract
The Court of Appeal in Cheshire[152]
suggested contractual clauses could address the potential gap
in accountability and ensure protection of Convention rights.
Such provisions would require private bodies providing public
services to comply with obligations under the HRA and allow recipients
of the service to rely on those contractual terms to bring an
action against the private provider for any breach of human rights.
18. Leonard Cheshire was a decision
in respect of community care provision (statutory arrangements
between local authorities and private care providers). We believe
the suggestion of contractual provisions is entirely unrealistic.
No service user or their advisers (usually carers when relevant
arrangements are being entered into) will ever have sight of the
contractual arrangements made between the private provider and
the public authority. If in a particular case the public authority
has not contracted with the private provider, there will be little
that the service user can do because they will be met with the
argument that the private provider is not a "public authority"
and there is no relevant enforceable contractual right. While
it is not a solution, we suggest that best practice for public
authorities who delegate the performance of public functions would
be to impose on private providers a duty to comply with the authority's
obligations under the HRA; to require the provider to ensure that
their contractual obligations are published to users. The difficulty
remains as to how such an obligation could be enforced at the
suit of the individual rather than the authority. The only recourse
will lie against the pure public authority, although there may
be no practical or enforceable remedy. For example, the remedy
sought by the residents in the Leonard Cheshire case was
the right to remain in their home and not a right to damages from
the local authority. Although claimants are able to bring claims
against the public body, there will be confusion over who to bring
a claim against, since it may not be clear whether any contractual
arrangement exists between the public authority and private provider.
19. "Horizontal" application
of rights between two private persons
Under the Convention there are only limited
circumstances in which there is a positive obligation to ensure
that Convention rights are respected even when the interference
comes from a private party. The extent of positive obligations
is uncertain and this is therefore not a sound basis on which
to ensure respect for Convention rights by private bodies.
20. Accordingly, none of the suggested alternative
remedies come close to achieving compliance with Article 13 (the
right to an effective remedy) if the HRA does not, itself, achieve
that result.
21. In addition, whilst it may be argued
that the new human rights culture requires contracting parties
to act with humanity, this is not a sufficiently robust approach
to guarantee protection for stranded victims and heal the wound
which results from the restrictive definition of "public
authority" in the Cheshire case.
CONCLUSION
22. A person's access to effective remedies
should not depend upon the identity of the provider of services.
It is unacceptable for a vulnerable person in one area of the
country to have no human rights protection merely because he or
she happens to receive services from a private provider contracted
by the public authority, whereas a person receiving the same nature
of services elsewhere has such protection.
23. The vulnerable in society are in most
need of protection under the principles enshrined in the HRA,
yet, as most wholesale contracting out of services has taken place
in relation to the basic welfare state provision, they are also
most likely to be stranded victims. This is at odds with the current
approach to protection of those most in need, illustrated by Mr
Justice Munby's view when referring to the nature of human dignity
and the rights of disabled people under Articles 2,3 and 8 of
the ECHR, and the Charter of Fundamental Rights of the European
Union:
"The recognition and protection of human
dignity is one of the core values—in truth the core value—of
our society and indeed, of all the societies which are part of
the European family of nations and which have embraced the principles
of the Convention... ...In order to avoid discriminating against
the disabled—something prohibited by Article 21(1) of the
Charter—one may, as Judge Greve recognised, need to treat
the disabled differently precisely because their situation is
significantly different from that of the able bodied. Moreover,
the positive obligation of the State to take reasonable and appropriate
measures to secure the rights of the disabled under Article 8
of the Convention (and, I would add, under Articles 1,3(1), 7
and 26 of the Charter) and in particular, the positive obligation
of the State to secure their essential human dignity, calls for
human empathy and humane concern as society, in Judge Greve's
words, seeks to try to ameliorate and compensate for the disabilities
faced by [persons in A and B's situation (my emphasis) [153]
24. Under Article 13 ECHR, the United Kingdom
has an obligation to ensure effective remedy for human rights
violations. The current arrangements through HRA section 6 may
leave the UK liable for violations arising from the gap in protection.
As private bodies provide more and more public services, and public/private
partnerships are developed, this gap in human rights protection
will increase.
25. In our view the only satisfactory solution
to the problems raised by the Joint Committee is primary legislation
in the form of a more precise (and expanded) definition of the
term "public authority". Any new definition should make
clear that when a public body delegates functions that would otherwise
be the responsibility of that public body to a private entity,
those functions and the private body delivering them, are considered
public for the purposes of the Human Rights Act. This would affect
all public/private relationships and not simply those where the
contract has been amended to deal with this human rights loophole.
26. Until changes in legislation are made,
there will continue to be unfairness in how human rights breaches
are handled.
27. It should be remembered that the definition
of "public authority" in section 6 has wider implications
than identifying whether rights under the Convention arise. In
particular, the definition of "public authority" in
disclosure provisions, for example those arising under the anti-terrorism
legislation[154],
was intentionally anchored to section 6 of the HRA so that any
disclosure that a public authority makes must be compatible with
Article 8 of the Convention. Accordingly, in considering any extension
to the definition of a "public authority" to include
a private body undertaking public functions, any corresponding
obligation under the disclosure provisions should be limited to
disclosure of information which arises purely in relation to the
exercise of that public function.
17 April 2003
146 HL Deb, 24 November 1997, Col 811. Back
147
Leonard Cheshire Foundation, ex p Heather (2001) CCLR 211,
[2002] EWCA Civ 36. Back
148
Poplar Housing and Regeneration Community Association Ltd v
Donoghue [2001] 3 WLR 183. Back
149
(Case 188/89)[1991] 1 Q.B.405; [1991] 1 A.C.1 [1990] E.C.R.I-3313. Back
150
R v. Servite Houses and Wandsworth LBC, ex p. Goldsmith and
Chatting (2000) 3 CCLR 325. Back
151
R Haggerty and Others v. St. Helen's Council unrep April
8 2003 (CO/1300/2003). Back
152
Leonard Cheshire Foundation, ex p Heather (2001) CCLR 211,
[2002] EWCA Civ 36. Back
153
A,B,X and Y v. East Sussex County Council (2003) EWHC 167
(Admin), 10 Feb 2003. Back
154
Section 20(1) of the Anti-terrorism, Crime and Security Act 2001. Back
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