23.Memorandum from Philip Plowden and
Kevin Kerrigan, Centre for Human Rights Practice, Northumbria
University[324]
SUMMARY OF
EVIDENCE:
1. The current decisions by the courts as
to the meaning of public authority are not in accordance with
the intention of Parliament, create a protection gap for individuals,
and are not compatible with the approach adopted in other recent
legislation.
2. The consequence of the Leonard Cheshire
definition is to create greater uncertainty in litigation, and
to create anomalies in the context of judicial review applications
and of European Union law issues.
3. In our view the proposed "contractual
provisions" remedy is unlikely to be effective, and would
give rise to a greater degree of litigation, and a higher degree
of complexity in that litigation.
4. We argue that suggestions that a narrow
view of "public authority" is necessary in order to
maintain the ability of bodies such as charities themselves to
claim victim status under the Human Rights Act are misplaced.
QUESTIONS:
1. Whether in your view the meaning of public
authority under the Human Rights Act, as interpreted by the courts,
is the right one?
Our view is that the meaning of public authority
as interpreted by the Court of Appeal is one that is incorrect
for the following reasons:
(1) It has no regard to the intention
of Parliament in drafting s.6 of the Human Rights Act.
(2) It unduly restricts the ambit of
the Act, creating a protection gap for individuals.
(3) It creates an arbitrary distinction
between the meaning of "public authority" in the context
of other recent pieces of legislation intended to protect the
individual and to enhance the rights of the individual as against
the State (see in particular the Race Relations (Amendment) Act
2000 and the Freedom of Information Act 2000).
(4) It fails to have regard to developments in
the jurisprudence of the European Court of Human Rights in relation
to the positive duties on States.
1.1 That the Leonard Cheshire definition
fails to take into account the intention of Parliament:
1.1.1 It is clear from statements made during
the Parliamentary debate that the meaning of "public authority",
as proposed by the Court of Appeal in the Leonard Cheshire case[325]
and in Poplar v Donoghue[326],
is more restrictive than that which was anticipated by the Government
at that time. [327]
1.1.2 Thus the central proposition of the
Lord Chief Justice in Poplar v Donoghue—namely that:
". . . The fact that a body performs
an activity which otherwise a public body would be under a duty
to perform, cannot mean that such performance is necessarily a
public function . . . 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."
[328]
seems to sit uneasily with the then Home Secretary's
statement that:
"The Government have a direct responsibility
for core bodies, such as central Government and the police, but
they also have a responsibility for other public authorities,
in so far as the actions of such authorities impinge on private
individuals. The Bill had to have a definition . . . that went
at least as wide and took account of the fact that, over the past
20 years, an increasingly large number of private bodies, such
as companies or charities, have come to exercise public functions
that were previously exercised by public authorities . . ."
[329]
1.1.3 In some cases the courts have concluded
that it is not open to them to have regard to the statements of
intent in the Parliamentary debates, thereby failing to address
the purpose of Parliament in introducing a new Constitutional
provision for the protection of the individual. [330]
1.1.4 It must be accepted that there remains
a degree of uncertainty about the meaning of "public authority"
even where regard is had to the Parliamentary material. [331]
1.1.5 It must additionally be accepted that
much of this uncertainty arises from the attempt to define "public
authority" in terms of those bodies for whose actions the
State might be held liable before the Strasbourg court. This uncertainty
arises for two reasons:
(i) There has been a long-standing reluctance
by the European Court of Human Rights to identify which bodies
engage State responsibility. [332]
(ii) This is further complicated by
the fact that the responsibility of the State may arise from a
failure to satisfy its own positive obligations to protect individual
rights under Article 1, rather than from the specific act of a
body which can be directly attributed to the State. [333]
1.1.6 Given this lack of clarity, it cannot
be said that the meaning given to "public authority"
by the Court of Appeal is wrong as a matter of law. It can, however,
be said that that meaning does not reflect the wide ambit which
Parliamentary debate suggests was intended to be given to the
phrase. As such the meaning given to the phrase by the Court of
Appeal in cases such as Poplar v Donoghue and Leonard
Cheshire is incorrect.
1.2 That the Leonard Cheshire definition unduly
restricts the ambit of the Act, creating a protection gap for
individuals.
1.2.1 It necessarily follows that if a "narrow"
definition of "public authority" is adopted, then some
individuals faced with actions taken by bodies who are only public
authorities because they are carrying out functions of a public
nature will not be able to rely upon the European Convention rights
in the domestic courts unless they are able to take advantage
of "alternative means" of bringing themselves within
the Human Rights Act, for example by relying upon the horizontal
effect of the Act, or by bringing legal actions against defendant
public authorities for failing to protect their rights through
mechanisms such as contractual terms. These issues fall within
the questions asked at [3] and [4] and are considered below.
1.3 That the Leonard Cheshire definition creates
an arbitrary distinction between the meaning of "public authority"
in the context of other recent pieces of legislation intended
to protect the individual and to enhance the rights of the individual
as against the State (see in particular the Race Relations (Amendment)
Act 2000 and the Freedom of Information Act 2000.
1.3.1 The Committee will be aware that the
"Human Rights Act model" has been used by Parliament
in other pieces of legislation which are intended to define or
redefine the relationship between the individual and the State,
and to offer protection to individuals. In particular the Committee's
attention is drawn to the Race Relations (Amendment) Act 2000
and to the Freedom of Information Act 2000. Both pieces of legislation
rely in different ways upon an identical definition of public
authority to that contained in the Human Rights Act.
1.3.2 The Race Relations (Amendment) Act
is particularly instructive in that it imposes a general duty
of non-discrimination on "public authorities" (under
s.1), and then imposes a positive duty on certain core public
authorities (as defined by Schedule 1 to that Act) to promote
equal opportunities. If the Leonard Cheshire view of "public
authority" is correct, then far fewer bodies are caught by
the duty of non-discrimination than might be thought to have been
the case. And yet if the bodies in Schedule 1—that is, those
core public authorities who are required to actively promote equal
opportunities—are then themselves considered in the light
of the Leonard Cheshire test, it is far from clear that
all of the bodies would constitute public authorities within the
"functions of a public nature" provision contained in
s.1 of the Race Relations (Amendment) Act and s.6 of the Human
Rights Act. [334]The
consequence is that a body such as a University might be bound
by the general statutory duty to promote eliminate discrimination
and promote equal opportunities under s.2, but could fall out
with the supposedly more wide-ranging non-discrimination provision
in s.1. It is a useful indication that the Leonard Cheshire
test is unduly narrow, and that the narrow definition is likely
to have an unanticipated and adverse impact in contexts beyond
the Human Rights Act.
1.3.3 It is instructive to note that in
the Freedom of Information Act, provision is made (at s.5(1))
for a new body to be added to the Schedule who:
(a) appears to the Secretary of State to
exercise functions of a public nature, or
(b) is providing under a contract made with
a public authority any service whose provision is a function of
that authority.
Thus Parliament makes clear that it intends
the legislation to apply not only to those named in the Schedule,
but to those who enter into contracts with the "public authority"
where the public authority is delegating its functions. The suggestion
in Leonard Cheshire is that the correct approach is for an individual
to sue the public authority that delegated those public functions
to the private body. The approach taken by the Freedom of Information
Act is to define certain classes of public authority, but further
to "add in" those to whom they may sub-contract public
functions. The intention is to provide a greater degree of protection
in such cases—not a more restrictive one.
1.4 That the Leonard Cheshire definition fails
to have regard to developments in the jurisprudence of the European
Court of Human Rights in relation to the positive duties on States.
1.4.1 We have suggested above (at 1.1.5)
that one difficulty in having regard to Strasbourg authority on
the liability of particular agencies is that the focus of the
international court is on the liability of the State itself. The
European Court may therefore be unclear as to which agencies amount
to "emanations of the State" (to borrow a phrase from
the context of the law of the European Union), and may in any
event hold that there has been a breach of the State's positive
obligations arising from article 1 of the Convention.
1.4.2 We suggest, however, that the approach
of the Strasbourg court has been to expand its jurisprudence in
relation to positive obligations so as to extend the responsibility
of the State into areas that would not in the past have fallen
within the ambit of the Convention. One useful example is the
continuing expansion in liability for breaches of the Convention
(and in particular article 8) in the context of environmental
issues. In this context the "shrinking state" approach
of the Leonard Cheshire definition, which effectively recognises
the privatisation of traditional public functions, creates a gap
between the potential liability of the State under international
law, and that which is recognised by the domestic courts. The
result is that the Human Rights Act will not have brought rights
"home", and will continue to necessitate a greater number
of applications to the Strasbourg court than was intended.
2. 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?
2.1 First, on a practical level, bodies
that have may hitherto have conceded the public authority point
and argued the case on its merits might now be inclined to pursue
a jurisdiction point from the outset. The courts have already
assumed without any real dispute that privately run detention
centres[335]
and water utility companies[336]
are public authorities for the purpose of section 6. [337]However,
if we measure their activities against Leonard Cheshire
test it is not obvious that they are exercising public functions.
Indeed, it is instructive to consider the list of public authorities
set out in Schedule 1 of the Race Relations (Amendment) Act and
to consider how many of these would now fall to be considered
public authorities under the test in Leonard Cheshire.
2.2. Secondly, the test of amenability to
judicial review could, notwithstanding Lord Woolf's comments in
Poplar that the concept of public authority was inspired by the
judicial review criteria, be wider than the test for amenability
to claims under section 7 of the Human Rights Act. Thus, although
Human Rights Act actions would have wider reach in respect of
pure public authorities, they could be unavailable to challenge
bodies that are otherwise answerable in public law. [338]
2.3 Thirdly, bodies that are emanations
of the state for the purposes of European Union law might nonetheless
have no direct responsibilities to respect citizens' human rights.
In Foster v British Gas[339]
the European Court of Justice held that a privatised utility was
an emanation of the state for the purpose of deciding whether
it was bound by an unimplemented directive. It is unclear the
extent to which British Gas would be public authority given the
views expressed by the courts so far, particularly the comment
in the Leonard Cheshire case that state regulation is, if anything,
a negative indicator of public authority status.
2.4 Fourthly, it is unclear whether public
authorities may be able to divest themselves of liability under
the Human Rights Act by contracting with private providers to
satisfy statutory duties. In Leonard Cheshire the court suggests
that any "protection gap" can be avoided by means of
contractual liability—and this is considered below. However,
it seems that it may nonetheless be possible for public authorities
to offload their own responsibility for acting in compliance with
Convention rights onto other agencies. [340]
3. What steps, if any, should be taken to
address any potential gaps in Human Rights Act protection and
accountability following the Leonard Cheshire case?
3.1 We would suggest that regard be had
to the approach taken in the Race Relations (Amendment) Act and
in the Freedom of Information Act and that a Schedule of public
authorities be provided. We accept that this would not wholly
clarify the issue of what amounts to a public function, but we
suggest that it would provide an essential "core" of
public authorities so as to avoid dispute in some cases.
3.2 We would suggest that an equivalent
to s.5(1)(b) of the Freedom of Information Act be added to the
Human Rights Act to make clear that the contracting out of public
functions gives rise to liability on both the public authority
and the service provider.
4. Whether any alternative means, apart from
section 6(3)(b), (such as contractual terms) could effectively
fill any potential gaps in human rights protection?
4.1 Our view is that while a contractual
terms cause of action might provide some protection for individuals,
it would do so only in a limited way.
4.2 Taking the facts of Leonard Cheshire
it is not easy to see how such a matter could be litigated had
the local authorities responsible for placements in the defendant
charity imposed a contractual term requiring compliance with each
individual's human rights.
(i)
First, would the charity be prepared to contract
on such a basis? Given the potentially uncertain ambit of the
Convention, could the charity be certain that its insurance would
cover all such claims? Would it be able to identify with certainty
the range of potential claims, and their potential costs? In particular
we wonder how ready the "sub-contracting" charities
would be to accept such an extra burden.
(ii)
Secondly, each time that the local authority entered
into a new contract (which would be each time that it entered
into a new placement, and each time that there was any variation
in terms, including cost variations), it would need to consider
whether any Human Rights Act indemnification clause was still
applicable and adequate. Equally the charity would need to do
so. In view of the very large number of contracts, and of the
regularity of their revision and consequent renewal, we question
whether this is practicable.
(iii)
Where a claimant wished to bring an action—for
example, as in Leonard Cheshire, arguing that article 8
was being breached by closure of the home—he would need
to bring the action against the local authority, and the local
authority would then need to join the charity, so involving two
defendants rather than one. The local authority might then conclude
that the actions of the charity amounted to a breach (or arguable
breach) of article 8, so that it wished to settle the case; the
charity might deny that any such breach arose, in order to avoid
indemnifying the local authority. It would in consequence be much
harder to achieve settlement in meritorious but marginal cases.
(v)
In a situation such as that in Leonard Cheshire,
where a charity was seeking to close a care home, the local authority
might require to be involved in the decision-making process of
the charity in order to ensure that it (the local authority) was
not going to be exposed to potential claims. Again, this raises
issues about whether the charity or other body would be prepared
to agree to permit the local authority this role.
4.2 We would also suggest that the contractual
approach gives rise to further complexity in relation to compliance
with positive duties arising under the Convention. Instead of
requiring each organisation which is providing the service to
consider its responsibilities, it adds an additional requirement
for the delegating public authority to keep under review all its
contractual relationships in order to ensure that each is Convention
compliant, and that each indemnification from the service provider
remains adequate.
4.3 Finally, we suggest that the natural
remedy for a breach of contract lies in damages. In contrast damages
will often not be the solution sought in a Human Rights Act case—and
indeed damages may be an exceptional remedy under the Act. If
(again relying upon the facts of Leonard Cheshire) a court
were to find that the closure of a local home amounted to a breach
of article 8, and that the appropriate remedy would be to prevent
the closure of the home, it is arguable that injuncting the local
authority would achieve little, since the local authority would
not be closing the home, and would have no power to prevent the
charity from doing so. At best the claimant could seek only damages
for the loss of his home, since this would be the only remedy
within the local authority's power.
4.4 In our view similar arguments apply
to the suggestion that any protection gap can be addressed by
way of the liability of the delegating public authority.
4.5 In relation to issues of horizontality,
we would argue that there remains considerable uncertainty about
the ambit of the horizontality principle. Additionally, it is
a principle which relies upon the claimant being able to identify
an existing cause of action, other than the Human Rights Act claim,
in order to be able to get the matter before a court in the first
place. Even where a claimant is able to use an existing common
law action in order to commence legal proceedings, he may also
be dependent on persuading the court that it is appropriate to
develop the common law in such a way as to provide protection
for his human rights.
5. A protection gap for non-State service
providers?
5.1 One argument which has been advanced
in favour of the narrow test for public function is that if service
providers are deemed to be public authorities for the purpose
of the Human Rights Act they will themselves cease to be able
to rely upon victim status under the Act. [341]A
narrow test therefore ensures that, for example, charitable organisations
are able themselves to rely upon the Human Rights Act against
the State.
5.2 This view relies upon established Strasbourg
jurisprudence—much of it in relation to local authorities
seeking to bring actions before the European Court of Human Rights
in relation to activities of the States of which they are part.
It is, we suggest, unsurprising that Strasbourg has developed
a doctrine which denies such emanations of the State victim status;
the European Court is an international court and is concerned
with the protection of the individual against actions of the State,
and not with remedying internal disputes of the State itself.
[342]
5.3 Our view is that the rationale for this
particular aspect of the victim status test in international law
does not apply in a domestic law context. While the Strasbourg
court may not wish to become embroiled in disputes between one
aspect of the State and another, these are matters which are frequently
litigated in domestic courts and there is therefore no reason
for the denial of victim status to the public authority. It is
therefore inappropriate to apply what amounts to an international
law doctrine within the domestic context.
5.4 Additionally, there is no direct equivalent
in Strasbourg jurisprudence of the "public functions"
test, since (as has already been suggested) Strasbourg will impose
liability on the State for failure to protect a Convention right,
and will not identify the particular agency of the State liable
for that breach. In the context of "hybrid" bodies—those
caught by section 6 only because they are carrying out functions
of a public nature—there is no reason why in domestic law
they could not be treated as retaining their victim status (ie
as not being part of the State) when carrying out all functions
that are not public in nature.
5.5 Accordingly we would argue that there
is no need to support a "narrow test" of public authority
under section 6 in order to preserve the protection of hybrid
bodies, such as a charities.
CONCLUSION
In our view the development of a narrow test
for public authority status was not anticipated by Parliament,
and will amount to a substantial narrowing of the ambit of the
Human Rights Act. As such it is likely to inhibit the development
of recognition of human rights in the domestic arena, and to require
that continued reliance on access to the European Court of Human
Rights which the Human Rights Act sought to reduce.
22 April 2003
324 Philip Plowden, BA, LLM, Barrister-at-law, Solicitor,
Associate Dean; Kevin Kerrigan, BA, Solicitor, Principal Lecturer. Back
325
[p2002] 2 All ERR 936. Back
326
(2001) 22 HLR 823. Back
327
See in particular the statement of the Lord Chancellor at the
second reading of the then Bill HL Deb 3 November 1997 col 1231,
see also the statement of the then Home Secretary, at HC Debs
16 February 1998, col 775. Back
328
Op cit. paragraphs 58-59. Back
329
Jack Straw, Home Secretary HC Debs 16 February 1998 col 775. Back
330
See the comments of Stanley Burnton J in the Divisional Court
in Heather v Leonard Cheshire [2001] EWHC Admin 429 (2001) 4 C.C.L.
Rep. 211, and of the Court of Appeal in Aston Cantlow and Wilmcote
with Billesley Parochial Church Council v Wallbank and another
[2002] Ch. 51 (at para 29): "The phrase "public authority"
is not a term of art; nor is its application always obvious or
easy. This, however, is some distance from Miss Asplin's submission
that resort may be had to Hansard for help in interpreting it
. . ." The Court of Appeal in Leonard Cheshire did
have regard to written submissions from JUSTICE which referred
to the Parliamentary statements, but it is not clear to what extent
these were considered applicable. Back
331
"Examples may vary, but I believe that the courts will have
in mind changing social, economic and cultural conditions when
they come to consider particular decisions on particular aspects
of a public authority." Lord Williams of Mostyn HL Debs 24
November 1997 col 758. Back
332
Thus for example the BBC in Hilton v United Kingdom (App.
Number 12015/86 , 57 DR 108), or British Rail in Young, James
and Webster v United Kingdom (2000) 29 EHRR 38. This arises
from the fact that there is no obligation on the Strasbourg court
to specify to which national authority a violation is attributable:
Zimmermann and Steiner v Switzerland (1984) 6 EHRR 17. Back
333
See again Young, James and Webster, op cit, at para 45. Back
334
In particular there must be some doubt whether the listed "educational
authorities" would all be Leonard Cheshire public
authorities. Back
335
Quaquah v Group 4 (Total Security) Ltd and another [2001]
All ER (D) 279 (May). Back
336
Marcic v Thames Water Utilities Ltd [2001] 3 All E.R. 698
(High Court); [2002] 2 W.L.R. 932 (CA). Back
337
There was no dispute about the status of a university in R (on
the application of Mitchell) v Coventry University and another,
[2001] EWHC Admin 167, 2 March 2001, although the case focused
on alleged fee discrimination under the Education Fees and Awards
Act 1983 as opposed to any particular action by the University. Back
338
In Clark v University of Lincolnshire and Humberside [2000]
3 All ER 752 Sedley LJ said of challenges to "new" universities,
"That judicial review is available in such a case seems plain
on first principles. A number of such applications have been reported-for
example R v Manchester Metropolitan University, ex parte Nolan
[1994] ELR 380-in none of which has any challenge been offered
to the court's jurisdiction." (at page 756) His Lordship
described the relationship as ". . . A contractual relationship
which happens to possess a public law dimension." (at page
757). Back
339
[1990] 2 CMLR 833. Back
340
In R (on the application of Beer) v Hampshire Farmers Market
Ltd. [2002] EWHC Admin 2559-a case which sits uneasily with
the restrictive view of public authority in Leonard Cheshire-the
court seems to have taken the view that there was sufficient public
element in the decision to exclude the claimant from the Farmers
Market to render the decision amenable to judicial review-and
that this in consequence meant that the Farmers Market company
fell within s.6 of the Human Rights Act. This, however, suggests
that any damages should be awarded against that private company,
and that the local authority can avoid liability. It may be argued
that provided that the company is solvent and so long as the courts
are prepared to take this more generous approach to public authority
status, a protection gap is avoided. But it is dependent on the
solvency of the private company and suggests an abrogation of
responsibility by the State that sits uneasily with the positive
duties imposed by the Strasbourg court. Back
341
See for example Dawn Oliver, The Frontiers of the State: Public
Authorities and Public Functions under the Human Rights Act 2000
PL 476. Back
342
See among other authorities the recent decision in Hatzitakis,
and Thermaikos and Mkra Borough Councils v Greece nos.
48391/99 and 48392/99, 18 May 2000, unpublished. Back
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