Joint Committee On Human Rights

Joint Committee On Human Rights Written Evidence

20.Memorandum from Liberty and the Oxford Public Interest Lawyers

SUMMARY

This is a joint submission by the Oxford Public Interest Lawyers and Liberty. In our view the current definition of "public authority" under the Human Rights Act is incorrect. We propose that the category of so-called hybrid public authorities under the act should include (1) those who perform public functions under contract with a public authority and (2) those who perform functions recognised by the state to be in the public interest.

Public functions must be broadly defined under the act in order to secure the human rights provided for and to avoid violating and Articles 1, 13 and 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Whilst some protection may be afforded by contract and/or the horizontal application of the Human Rights Act, this protection is not uniform.

The case law on public authorities is in its early stage, and the issue has not yet come before the House of Lords or the European Court of Human Rights. It is important that the definition of "public authority" is kept under review. In addition, it is hoped that the proposed Human Rights or Human Rights and Equalities Commission may offer some level of human rights protection where that protection is not provided by the courts.

I. 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 ambit of the Human Rights Act 1998 is defined with reference to public authorities and the performance of public functions. Section 6 of the act creates two categories of public authorities that are bound by the act: pure public authorities such as central and local government and the courts and "hybrid" bodies. Under the act, a public authority includes "any person certain of whose functions are functions of a public nature".[155] Whilst all acts of a pure public authority are governed by the terms of the Human Rights Act, a hybrid body is bound by the Human Rights Act only when it is performing "functions of a public nature".[156] Section 6 included the category of a "hybrid body" in order to take into account the "increasingly large number of private bodies . . . [that] have come to exercise public functions that were previously exercised by public authorities".[157]

2. The Court of Appeal in the Donoghue[158] and Leonard Cheshire[159] cases determined when a private body is performing "functions of a public nature" such that it is a hybrid public authority within the terms of Section 6 of the Human Rights Act. Donoghue and Leonard Cheshire were cases where the local authority had contracted out the provision of services that the local authority was under a duty to provide. In both cases it was held that, without more, the mere provision of such services by a private body is not a "public function" within the terms of the Human Rights Act.[160] In order for the provision of such services to be a "public function", there must be other evidence of what Lord Woolf termed a "public flavour" to the functions of the private body.[161] Such functions may be "public" where there is statutory authority for what has been done, where control is exercised over the private body by a public authority or where the acts are enmeshed in the activities of a public body.[162] Whilst in Donoghue the relationship between the local housing authority and housing association was sufficient to find it was exercising a "public function", in Leonard Cheshire no such "public flavour" was found.

3. The decisions in Donoghue and Leonard Cheshire create a gap in Human Rights Act protection of vulnerable persons who are subject to the exercise of state power. Those who are directly in receipt of state services are protected by the terms of the Human Rights Act whilst those who are provided by the state with the same services on a contracted-out basis have no such protection vis-a"-vis the service provider. This is as a result of what Professor Paul Craig terms the "major premise" of the Court of Appeal in the Donoghue and Leonard Cheshire cases, that "[t]he fact that a body performs an activity which otherwise a public body would be under a duty to perform cannot mean that such a performance is necessarily a public function when the self-same activity is undertaken by a private service provider".[163]

4. We submit that this premise is incorrect. As the Lord Chancellor explained in debate, the definition of a public authority in Section 6 was drafted so as "to provide as much protection as possible for the rights of the individual against the misuse of power by the state".[164] Given the trend to contract out services previously provided by the state, such protection can only be achieved by ensuring that private bodies that perform public functions fall within the ambit of the act. This is why Sections 6(3) (b) and 6(5) create a category of hybrid body that defines liability under the act not by the nature of the body but rather by the nature of the functions performed by it.

5. In Leonard Cheshire, the court recognised that were the local authority providing the accommodation itself it would be performing a public function. This is so not because the local authority is a "pure" public authority (and thus liable under the act for all its activities) but because of the nature of the activity. As stated by Professor Craig, "[t]he function in . . . Leonard Cheshire was public in the classic social welfare sense. Parliament decided that certain members of society should be cared for, and imposed the relevant duty on the local authority. This was the public function, and the provision of accommodation with special care facilities was the operational manifestation." [165]Sections 6(3) and 6(5) of the Human Rights Act make clear that the nature of a function should not change from public to private based on the identity of the provider.

6. It is essential to the protection of those rights contained in the Human Rights Act and the ECHR that those providing contracted-out services are liable under the act. The service user is subject to a great degree of state power when in receipt of contracted-out services. The service user in most cases will have little or no effective control over the choice of service provider or the arrangements made between the state and the private contractor. Under the current definition of public authority service users who are subject to substantial state power may lack effective protection of their human rights. This is because the practical protection of those rights in some instances will only be able to be achieved by placing an obligation directly on the service provider rather than solely on the public authority.

7. In addition to those situations where the provision of services has been contracted out, where a charitable or not-for-profit corporation is performing a function that is recognised by the state to be in the public interest that function should be deemed "public" under Section 6 of the Human Rights Act. Such functions would include those where the state has provided for the function by statute, where the function is recognised to have or serve public policy objectives or where the function is performed to serve the public interest. [166]Where such functions are performed by a public body they are "public", and under the terms of Section 6 the nature of those functions should not change when provided by a private body.

8. The Lord Chancellor anticipated that such bodies would be considered hybrid bodies under the act, stating, "If a court were to hold that a hospice, because it provided medical services, was exercising a public function what on earth would be wrong with that? Is it not perfectly true that schools, although underpinned by a religious foundation or a trust deed, may well be carrying out public functions. If we take, for example, a charity whose charitable aims include the advancement of religion, the answer must depend upon the nature of the functions of the charity. For example, charities that operate, let us say, in the area of homelessness, no doubt exercise public functions."[167]

9. Services and activities that the state deems to be in the public interest are increasingly provided by a mix of purely public, charitable, not-for-profit and for profit institutions. The performance of those services places the provider in a position to violate the human rights of vulnerable members of society. Moreover, such violations can occur in realms or ways that are not amenable to effective management or control of the state. If such providers are not directly liable under the Human Rights Act, the state will increasingly be able to evade its obligations under the HRA and victims of the resulting human rights violations will lack an effective domestic remedy. It is for these important reasons of public policy that the scope of Human Rights Act is defined by reference to public functions. The act will only be effective so long as those who perform functions in the public interest are liable under its terms.

II. 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?

10. The current judicial definition of "public function" is too restrictive. It impedes the effective remedy of human rights violations, discriminates between vulnerable users of publicly funded social services and may give rise to violations of the HRA and ECHR. Whether a service user has recourse to the service provider for HRA violations depends on whether the service is provided directly by the state or by a private provider. Thus a service use in an authority area that uses private provision may have no effective remedy for the violation of her human rights whereas the service user in an authority that maintains public provision of services can vindicate her rights through the public law courts. This situation may give rise to violations of Article 1 (state obligation to secure the rights and freedoms of the Convention, Article 13 (right to an effective remedy before a national authority) and Article 14 (freedom from discrimination in enjoyment of Convention rights) of the ECHR.

11. In addition to the potentially severe detrimental effects on those in receipt of public services, the current case law on hybrid public authorities creates confusion amongst service providers (and their legal advisers) as to whether they are potentially liable under the Human Rights Act. This is particularly true in the area of housing, as explicitly recognised in Donoghue, where the court held that the Popular Housing Authority was acting as a public authority when housing and then evicting the defendant, a short-hold tenant. The court emphasised "that this does not mean that all Poplar's functions are public. We do not even decide that the position would be the same if the defendant was a secure tenant. The activities of housing associations are ambiguous." [168]Leading commentators have argued that Donoghue creates uncertainty as to whether Registered Social Landlords are or are not public authorities, and the Law Commission has solicited views on whether the public functions of RSLs should be made clear by statute. [169]

III. 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. In our submission, it is premature to consider taking any steps to further refine the definition of a public function under the Human Rights Act. The House of Lords has not yet ruled on the issue and differences have emerged amongst different panels of the Court of Appeal that have decided public authority cases. [170]The primary difference that has emerged concerns the extent to which the test for amenability to judicial review is the same as that for determining whether a body is performing a public function under the Human Rights Act. In Donoghue, the court was of the view that the "generous interpretation of who is a public authority" provided for by the Human Rights Act must be interpreted with reference to the case law on amenability to judicial review. [171]In Wallbank, [172]the court recognised the relevance of the amenability test but stated that "the decided cases on the amenability of bodies to judicial review . . . will not necessarily be determinative of a body's membership either of the principal or of the hybrid classes of public authority".[173] Thus far, it appears that it is the former approach that is prevailing in "a line of cases . . . in which the courts have accepted, usually without argument that the two tests are the same",[174] but the issue has not been determined by the House of Lords.

13. A second point on which differences have emerged is the extent to which the fact that the function at issue is performed in the public interest affects the "publicness" of the function. In Donoghue, it was held that a body that performs "its duties by what it perceives to be the public interest . . . does not point to the body being a public authority." [175]In Wallbank, where it was held that a parochial church council is a public authority under Section 6 of the HRA, the fact that the council was acting in the public interest in combination with its powers exercised pursuant to statutory authority determined the issue. [176]Similarly, in R. (Beer) v. Hampshire Farmers Markets Limited, Mr. Justice Field held that the not-for-profit limited company that was established to take over the running of farmers markets from the county council was both amenable to judicial review and a public authority under section 6 of the Human Rights Act in part because of its role "in promoting the public interest by facilitating access to trading outlets much needed by Hampshire's farmers and producers." [177]

14. These differences of emphasis have emerged in the case law at a very early stage in its development and as a result of a very few cases. The House of Lords and the European Court of Human Rights have not yet had the opportunity to consider the issue. Whilst it is unfortunate that there is so much uncertainty for those who serve the public interest and their representatives regarding their legal obligations under the Human Rights Act two and one-half years after the act came into force, it may be premature to take steps to resolve the issue when the House of Lords and European Court of Human Rights have not yet had the opportunity to hear the issue.

15. We also support the establishment of an Equality and Human Rights Commission. The Human Rights Act treats equality as a fundamental human right, as do many international human rights treaties. Human rights also offer a holistic approach to equality. Rather than seeing only a person's race, gender, age, disability, religion or sexuality, human rights treats people as a whole. The underlying value of human rights is its emphasis on the equal worth and dignity of each individual. This approach could be valuable to an Equality and Human Rights Commission.

16. Debate around human rights has focused on its adversarial role rather than on an understanding of the essential role that human rights can play in improving the lives of substantial groups of people. In the absence of a body to promote human rights, there has been limited opportunity to make use of the good practice principles underlying the Human Rights Act, as the Government intended when the legislation was introduced. An integrated Equality and Human Rights Commission could make this possible. It would allow for a more coherent approach to equality, more effective promotion of good practice in relation to human rights and equality and a more efficient use of resources.

IV. Whether any alternative means, apart from section 6(3)(b) (such as contractual terms) could effectively fill any potential gaps in human rights protection.

17. It has been suggested that one method of placing human rights obligations on those to whom the local authority contracts out the fulfilment of its duties is to incorporate the terms of the Human Rights Act into the contract between the private body and the local authority with third party rights for the service user. In Leonard Cheshire, Lord Woolf suggests that this may be a legal duty of local authorities under the Human Rights Act. [178]This proposed solution seeks to fill the gap in human rights protection created by contracting out the provision of public services. It would be accomplished by drafting the contract between the public authority and the private provider pursuant to the provisions of the Contracts (Rights of Third Parties) Act 1999. The service user would then have an enforceable right in contract against the service provider by which she could enforce her HRA rights.

18. Providing for the protection of the human rights of service users by contract would partially fill the gap in human rights act protection. Under such contracts, service users who were victims of a human rights violation could seek a remedy in the county court for breach of contract, including an order for specific performance and damages. In the absence of an easily workable definition of public authority, such terms would also provide certainty to the service provider as to their human rights obligations. Such a solution, however, would create other inequalities of human rights protection for those who receive public services and does not fully fill the gap in human rights protection created by the current interpretation of the meaning of public authority.

19. Providing for the protection of human rights by contract with private providers would create a two-tier system of enforcing the human rights of victims. Whilst the local authority may be obligated to impose such terms on private authorities, no such obligation would exist where the local authority is providing the service directly. The local authority is already liable under the HRA and no such additional protection is legally required. A service user who is provided services directly by the local authority may take a judicial review action and only a judicial review action (absent any other violation of her contract) against the public service provider and/or the public authority. The service user who is provided services by a private body would, in the first instance, take a contract action against the service provider and may have recourse against the public authority by means of judicial review.

20. The horizontal effect of the Human Rights Act would ensure uniformity in court decisions with regard to both liability and remedies for human rights violations. Even given this uniformity in result, however, vindicating a right conferred by contract differs from taking a judicial review action. There are differences between the two types of actions with regard to time limits (where the remedy is damages) and the defences that would be available to the provider. Absent contractual terms that would impose the same limits that apply to public law human rights actions, the remedy for human rights violations would vary depending on the nature of the provider.

21. Contract actions and judicial review actions are heard by different courts. Whilst the courts share the same obligations as public authorities under the Human Rights Act, the balance of judicial experience and expertise in human rights law lies with the high court judges sitting in the Administrative Court. The same is true of the lawyers who practice there. Whilst lawyers with an expertise in contract are more readily available than those who specialise in public law (especially outside of London), any lawyer taking an action under the proposed contract would require a primary expertise in human rights law. Again, the balance of experience in this area lies with those lawyers who practice before the Administrative Court.

22. The impact of the differences between a contract action and a judicial review action on the victim will vary depending on the terms of the contract, the individual claimant and the nature of her case. What is clear is that the differences between the two types of action and the potential impact of those differences on the cases of victims of human rights violations would result in discrimination between those who receive public services directly and those whose public services are provided on a contracted-out basis.

23. The contract solution would also create discrimination between those who receive publicly funded services contracted for post-HRA and those who receive such services under a contract negotiated prior to the HRA coming into force. Lord Woolf was concerned in Leonard Cheshire that if the functions the charity performed were considered public functions under the act, then additional obligations would be placed on the charity that it was not aware of at the time of contracting.[179] If such obligations are not to be placed on service providers retrospectively however, either directly or by way of the human rights obligations of the public authority, some service users will have no effective protection of their human rights. Indeed the court in Leonard Cheshire recognised this when it held that where this is the case, the court, as a public authority, would be bound to interpret 6(3)(b) of the HRA in such a way as to create protection by declaring the provider a hybrid public authority.[180]

24. Where the provision of ongoing services was contracted for prior to the Human Rights Act, those who are in receipt of services require an effective remedy against their service provider for any human rights violation. Such protection can only be afforded by declaring the provider a public authority under the act. Imposing such obligations merely follows the general legal principle that where additional costs are imposed by statute or judicial decision on the performance of a contract, those costs are born by the party on whom the obligation falls. If, for example, new health and safety legislation required the replacement of all fire doors in a care home, it would be the care home that would absorb the cost and account for it in future contracts. [181]There are no reasons of public policy why the obligations created by the Human Rights Act should be different from any other new legal obligations. Whilst the obligation at issue in Leonard Cheshire may have been quite costly, many human rights obligations can be met with minimal additional cost.

25. Just as the "contract solution" offers no protection to those who receive services under contracts negotiated prior to the passage of the Human Rights Act, it offers no protection to those who receive services provided in the public interest where those services are not provided under contract with a public authority. The provision of services performed in the public interest should be covered by the terms of the Human Rights Act. The contract solution does nothing to resolve the gap in human rights protection for those who receive such services.

26. Solving the human rights gap dilemma via contract also creates other practical problems of human rights protection. Neither local authorities nor private providers will be keen to incorporate such terms into their contracts. To do so would drive up the price of the provision of services or require costly indemnities on the part of public authorities. It is unrealistic to assume that the service user can insist that such terms be included. The service user will rarely be around at the time any contract is made between a local authority and a service provider and if she were, it is doubtful that she would have legal advice or effective negotiating power. [182]Were such terms not included in the contract the service user might have a remedy by way of judicial review against the authority, but this is by no means certain.

27. Whilst providing for the respect of human rights by contract may provide effective human rights protection to some who receive publicly funded services from private providers, such protection will not be uniform. Uniform protection can most easily be achieved by interpreting the definition of a public authority to include the provision of contracted-out services. Given that the obligation on the private service provider and the consequent effect on contract price would be the same, the provision of contracted out services should be defined as a public function under the HRA to achieve uniform and effective human rights protection.

28. A second means by which human rights accountability may be achieved is the horizontal application of the Human Rights Act between private persons. In Leonard Cheshire, Lord Woolf held that the applicants' human rights were adequately protected. In some cases, however, the obligations imposed on public authorities will not be sufficient to provide adequate protection of the service user's rights. Where this is the case, the court in Leonard Cheshire held that the court, as a public authority, would be bound to interpret 6(3) (b) of the HRA in such a way as to create protection. [183]The inclusion of courts as public authorities under the HRA obliges the courts to recognise a body as a hybrid authority where the applicant would otherwise suffer human rights violations as a result of contracting out.

29. Horizontal effect may offer some degree of human rights protection. The application of the Human Rights Act, however, would depend either on the existence of a cognisable claim (other than a human rights claim) to bring the parties before the court or the filing of a highly speculative human rights action. It will be the rare applicant who will risk a judicial review action against a body who, but for the mandatory horizontal application of the terms of the human rights act, would not otherwise be classified as a hybrid public body under the act.

30. Some degree of human rights protection can be achieved by providing for the protection of a service user's human rights by contract or by relying upon the horizontal effect of the Human Rights Act once an action is brought before the courts. Neither of these solutions, however, fills the gaps in human rights protection created by present narrow interpretation of the definition of a public authority under the Human Rights Act.

CONCLUSION

We conclude that the current judicial definition of public function under the Human Rights Act is incorrect. The narrow interpretation of the meaning of a public function under the act leaves some vulnerable service users without effective protection of their human rights and creates discrimination between those who are in receipt of public services. This may result in violations of Articles 13 and 14 of the ECHR and section 14 of the Human Rights Act. Whilst providing for human rights by contract and the horizontal effect of the Human Rights Act may offer protection to some, uniform protection can best be achieved by the adoption of a broad definition of public function under the act.

May 2003

155 Human Rights Act, 1998, section 6(3)(b). Back

156 Ibid., section 6(5). Back

157 HC Deb 16 February 1998, col 775. Back

159 R v. Leonard Cheshire Foundation [2002] EWCA Civ. 366. Back

160 Donoghue [2002] QB at 67; Leonard Cheshire at para 15. Back

161 Leonard Cheshire at para. 35. Back

162 Donoghue [2002] QB 48 at 69. Back

163 Paul Craig, "Contracting Out, the Human Rights Act and the Scope of Judicial Review, 118 LQR 551 (quoting Donoghue [2002] QB 48 at 67). Back

164 HL Deb, 24 November 1997, Col 808. Back

165 Craig, supra note 9, at 557. Back

166 Kate Markus, "Leonard Cheshire Foundation: What is a public function?" [2003] 1 EHRLR 92 at 99. Back