Joint Committee On Human Rights Thirty-Second Report

3  The DCA Review


42. On 25 July 2006 the DCA published its Review of the Implementation of the Human Rights Act ("the DCA Review"). The Review is described as the first stage in the DCA's response to the Prime Minister's request to lead a review looking at problems with the implementation of the HRA. The most significant outcome of the Review is that the Government remains fully committed both to the European Convention on Human Rights and to the way effect is given to it in the UK by the Human Rights Act 1998. The Review rules out both withdrawal from the ECHR and repeal of the HRA. As we shall see, it does not rule out altogether the possibility of amending the Act to try to ensure that sufficient weight is always attached to public safety.

43. We welcome the DCA Review which in our view makes a very fair and balanced contribution to this important debate. In this part of our report we consider some specific aspects of the Review.

Impact of the HRA on UK law

44. The Review's account of the impact of the HRA on UK law is in our view a fair and balanced account of the legal impact of the Act. It concludes that decisions of the UK courts under the Human Rights Act have had no significant impact on criminal law or on the Government's ability to fight crime. In her evidence to us Baroness Scotland confirmed that the Home Office accepted that conclusion.[48] We welcome the Home Office's unequivocal acceptance that the HRA has not impeded in any way the Government's ability to protect the public against crime. We consider the significance of this later in this report in the context of the Home Office's proposals to "rebalance the criminal justice system in favour of the law-abiding majority".

45. The Review does conclude, however, that the HRA has had an impact on the Government's counter-terrorism legislation, mainly because of the decision of the European Court of Human Rights in Chahal v UK.[49] In his evidence to us the Lord Chancellor elaborated on this conclusion. Asked to what extent he thinks the ECHR is frustrating the ability of a democratically elected government to develop a public policy response to the problems of terrorism, he replied:

"I do not think it is. In the review that we published … we said yes, there have been some changes that the Human Rights Act has caused - for example, the Belmarsh case - but it has not significantly inhibited the state's ability to fight terrorism because the Human Rights Act has allowed proportionate measures to be taken to fight terrorism. Kofi Annan said not so long ago, "Human rights law allows a pretty robust response to terrorism even in the most exceptional circumstances." Human rights law is not some rigid doctrine that can never be broken; it is something where a balance needs to be struck. If the state is threatened, it will allow the necessary steps to be taken to protect the democratic society which those values serve. I do not accept it has had a significant effect on inhibiting the fight against terrorism." [50]

46. We welcome the Lord Chancellor's unequivocal conclusion that the HRA has not significantly inhibited the state's ability to fight terrorism and his acknowledgment that human rights law permits proportionate measures to be taken in order to counter terrorism. In our view human rights law does constrain to some extent the range of policy choices available to the Government to counter terrorism, but at the same time it not only permits but requires proportionate measures to be taken to protect life against the threat from terrorism. In our most recent report on Counter-Terrorism Policy and Human Rights we have attempted to address the problems identified by the Review and to demonstrate that other policy options are available to the Government which will enable it to counter the threat from terrorism in a way which we believe to be compatible with the UK's human rights obligations.[51]

47. The DCA Review does not state any conclusion as to whether the HRA has had any significant impact on the law in relation to immigration and asylum. In evidence to us, however, the Lord Chancellor rejected the suggestion that Article 3 of the ECHR, as it has been interpreted by the judges, is frustrating the Government's ability to deal with "mass immigration".[52] He pointed out that "Article 3 affects an extremely small number of people." Again, we welcome the Lord Chancellor's unequivocal acceptance that the HRA has not had any adverse impact on the Government's policy in relation to immigration and asylum.

48. In other areas, the Review concludes, the impact of the HRA on UK law has been beneficial, and has led to a positive dialogue between UK judges and those at the European Court of Human Rights.

Impact of the HRA on policy formulation


49. The DCA Review records a significant but beneficial effect on the development of policy by central Government, leading to better policy outcomes by promoting greater "personalisation" in the delivery of public services and ensuring that the needs of all members of the UK's diverse population are appropriately considered. It says that the HRA has exerted a powerful influence on policy formulation in three ways:

50. The Review also states that "human rights proofing" is not simply an exercise to be carried out after legislation has been drafted. Questions of proportionality, and the identification of policy options that produce the least interference with Convention rights, should be embedded in the policy development process. In his speech to the Human Rights Lawyers Association on 29 September the Lord Chancellor repeated the assertion that the Act has "significantly improved the development of public policy. Every area of policy development in central government has been affected by the Act. All government policy must assess the potential for human rights impacts at an early stage".

51. We welcome the Review's acknowledgment that important questions concerning compatibility with human rights standards arise in the course of policy formulation, prior to the drafting of legislation. We agree. In our recent Report on our Future Working Practices we explained that in future we will be reconfiguring our mixture of work in order to enable us to report on any significant human rights compatibility issues which arise at a much earlier stage in the policy development process.[53]

52. We also welcome the Review's acknowledgment of the importance of detailed and accurate guidance to ensure that questions of human rights compatibility are embedded in the policy development process at an early stage. In our view, however, the Review rather overstates the extent to which current guidance and practice have succeeded in achieving this objective. We deal with this elsewhere in this report in the context of the role played by the JCHR and the adequacy of the explanations provided to Parliament for the compatibility of a particular measure or policy with human rights.


53. We asked the Lord Chancellor whether the DCA sees itself as actively working with other departments to help them put policies they are developing in a human rights framework. He replied that the DCA does see its role as helping other departments and, if asked, local authorities and other public authorities, with how to give effect to the HRA.[54] The DCA sees itself as having both an advisory role, providing guidance for example, and a championing role in relation to human rights, particularly in central government:[55]

"we campaign actively now for human rights which we did not do before and we did not do before because perhaps we had not realised the extent to which human rights and human rights values had not been as embedded in the national and governmental consciousness as they perhaps needed to be."

54. We welcome the DCA's embrace of an explicitly championing role in relation to human rights, a role which both we and our predecessor Committee have been concerned is not adequately performed in the absence of a human rights commission.


55. The DCA review proposes a rigorous review by relevant Government Departments of all guidance and training programmes "to ensure that public safety is given its proper importance", extending beyond central government to agencies, sponsored bodies and local authorities, under the leadership of a Ministerial Group. It also proposes the production by the DCA of a "Human Rights Toolkit" offering "generic guidance to public sector managers in the application and implementation of the Convention rights and the Human Rights Act."

56. The DCA has acted swiftly on these proposals, producing two new guidance booklets for officials in public authorities, Human rights: human lives: a handbook for public authorities and Making sense of human rights: a short introduction. It has also produced a new (third) edition of its Guide to the Human Rights Act 1998.

57. We very much welcome the publication of this guidance. We wholeheartedly endorse the DCA's intention to improve the guidance and training on human rights which is available to both the public and public officials. However, given the nature of our work and expertise, we were disappointed not to have been given an opportunity to comment on such guidance when it was still in draft form. We have considered the guidance and although we commend its accessibility there are matters on which we would have wished to make comment if we had been given the opportunity, such as the focus on negative obligations, preventing public authorities from taking certain steps, to the relative neglect of positive obligations which may require them to take action in order to secure or respect a Convention right.

58. In evidence to us the Lord Chancellor agreed that the DCA should have consulted us but explained that on this occasion he was extremely keen to follow up the July review with positive action in order to demonstrate that the DCA Review was not merely a statement of good intention.[56] We welcome his commitment to consult us on draft human rights guidance in future and his indication that there is still scope to consider the content of the current guidance which he described as "but one stage on what is quite a long journey".

59. We also asked the Lord Chancellor to tell us more about the ministerial group monitoring the guidance and training being provided by individual departments. He told us that it will be chaired by the Lord Chancellor, will have representatives of each central government department on it, and will take a cross-government look at how to make sure that human rights values are inculcated into all that Government does, how to defend human rights and how to establish a human rights culture.[57]

Impact of HRA on constitutional balance between Government, Parliament and the Courts

60. The DCA Review concludes that the HRA has not significantly altered the constitutional balance between Parliament, the Executive and the Judiciary. This view is largely based on a review of court judgments which concern either the relationship between the Judiciary and the Executive or the relationship between the Judiciary and Parliament. Apart from a brief mention of this Committee in the context of a description of the formal procedures for ensuring ECHR compatibility, which are said to have improved transparency and parliamentary accountability, consideration of the impact of the Act on the relationship between the Executive and Parliament is largely missing from the Review. Given the central role accorded to Parliament in the scheme of the Human Rights Act, we consider this to be a significant omission from the Review.

61. In our view, one way of "moving forward" which is not mentioned by the DCA Review is the provision by the Government to Parliament of better and fuller explanations of its reasoning as to why in its view a particular policy proposal or specific measure is compatible with human rights obligations. Just as fuller scrutiny by domestic courts makes it more likely that measures will withstand scrutiny in Strasbourg (a fact acknowledged by the Review), so will fuller scrutiny of compatibility issues in Parliament make it more likely that legislation will withstand human rights scrutiny in our own courts. There is therefore a very powerful democratic justification for requiring the Government to provide much more detailed information to Parliament in support of its view that a particular measure is compatible with human rights obligations, to enable Parliament to exercise a more meaningful scrutiny role with a view to reaching its own, informed decision about compatibility.

62. To this end we have been pressing the DCA since the beginning of the Parliament to provide a Human Rights Memorandum on presentation of each bill. The most recent letter in a lengthy chain of correspondence is from the Lord Chancellor dated 2 June 2006 which repeated the fairly consistent Government view that it would prefer to improve the consistency and quality of treatment of the human rights implications of legislation in Explanatory Notes rather than through a new mechanism of a Human Rights Memorandum. In that letter Lord Falconer said he would "now write without further delay to seek the views of my colleagues on your proposal".

63. The DCA Review refers to the ECHR Memorandum which is compiled for the Cabinet's Legislative Programme Committee, as an example of how assessment of ECHR compatibility is now embedded in the policy formulation process.[58] It says that the memorandum must set out the Convention rights likely to be engaged by the policy embodied in the Bill and explain how the proposed legislative scheme ensures that any interference with the identified right does not result in a breach, and that it will do this by demonstrating that the interference is legitimate, necessary, proportionate and non-discriminatory. This is precisely the analysis that we usually wish to see in relation to clauses in Bills which raise significant human rights issues. If it were available as a matter of course we think it likely that it would reduce the need for us to write to Departments asking so many and such detailed questions when we are scrutinising Bills.

64. We therefore asked the Lord Chancellor whether he was now in a position to say that we will be provided with this information. He said that he could not give us that commitment today, because it was still a matter of consultation across Government, but he was[59]

"sympathetic to the proposition which says it must be more helpful than simply making a section 19 statement to say, 'Here is where there was an issue on this Bill. This is the conclusion we came to. That is why we think it is compliant.'"

65. He also agreed that it should be possible to exclude matters of legal professional privilege and therefore to provide that information without going beyond what is proper.[60] He envisaged that it would be possible to say, for example, that "Clause 16 of this Bill raises this particular issue. We take the view that it is human rights compliant because A, B and C."

66. We welcome the Lord Chancellor's acknowledgment that it should be possible to provide fuller reasons explaining the Government's view on compatibility without infringing any claim the Government has to legal professional privilege. We see it as extremely important that Government bills introduced from the beginning of next Session are accompanied by much fuller explanations of their human rights impacts and justifications. Provided we obtain the information which we seek we are not concerned about the precise form in which these explanations are provided. However, we favour a free-standing Human Rights Memorandum over an expansion of the existing section in a Bill's Explanatory Notes because of the restriction that Explanatory Notes cannot contain argumentative material, a restriction which would inhibit the inclusion of the Government's full reasons for its view that any interference with a Convention right was justified in the sense of being necessary to meet a pressing social need and proportionate. We cannot see any reasons in principle why the existing ECHR Memoranda already compiled for the Legislative Programme Committee should not be made available to us, edited by a Government lawyer where necessary to protect the Government's legal professional privilege. We look forward to the Lord Chancellor following up our concern about this issue as a matter of some urgency.

Myths and misperceptions about the HRA


67. The DCA Review states that the HRA has been widely misunderstood by the public, and has also been misapplied by officials in a number of settings, both phenomena having been fuelled by a number of damaging myths about human rights which have taken root in the popular imagination. It concludes that deficiencies in training and guidance have led to an imbalance whereby too much attention has been paid to individual rights at the expense of the interests of the wider community.

68. The review addresses a number of myths and misperceptions, classifying them as:

69. In our view, the Review both correctly identifies and fairly addresses a number of common public misperceptions about the Act. However, as we made clear above, we are also of the view that Ministers must themselves take responsibility for ensuring that they do not create public misperceptions or reinforce them by the way in which they respond to newspaper headlines or campaigns which are themselves clearly founded on misunderstandings about the Act.

70. We think it is worth pausing to consider why misunderstandings about the Human Rights Act continue to be widespread. A number of such misunderstandings exist. It is often assumed, for example, that the Human Rights Act introduces new rights which did not exist before, whereas in fact the Act gives easier and more direct access to the rights which people in the UK already enjoyed under the European Convention on Human Rights, which has been binding on the UK for more than 50 years. It is also widely assumed in public discourse that the rights contained in the European Convention on Human Rights are a foreign import, foisted on our legal system from without. Many even believe, quite wrongly, that it is a product of the European Union. In fact, the European Convention on Human Rights was largely drafted by British lawyers, and for the most part contains rights which are in any event recognised in our English common law. A further common misunderstanding is that the Human Rights Act gives the courts the power to strike down Acts of Parliament. In fact the Act carefully preserves the central place of Parliament in our democracy by giving courts only a limited power to declare statutes incompatible with human rights, leaving it to Parliament to decide whether and how to legislate in response.

71. Most damagingly, it seems to us that there clearly exists a widely held public perception that the Human Rights Act protects only the undeserving, such as criminals and terrorists, at the expense of the law-abiding majority. Views differ as to whether responsibility for this perception rests with certain sections of the media, for inciting hostility to a statute to which they are opposed for reasons of self-interest; with our politicians for failing to provide the leadership necessary to demonstrate the benefits or potential benefits of the Human Rights Act to everyone; with lawyers and judges for appearing to suppose that the meaning and content of human rights are for exclusively legal rather than political decision; or with public authorities for failing to embrace the change of culture which the Act intended.

72. It is not for us to determine who is responsible for this negative public perception. Whatever the reasons for it, we start from the premise that it exists and we are concerned that, unless efforts are made to address it, there is a real risk that the Human Rights Act, and indeed the very language of human rights, will become permanently discredited in the eyes of the public. On our recent visit to Canada in connection with our inquiry into counter-terrorism policy and human rights, we were struck by the contrasting perception of Canadian citizens of their Charter of Rights and Freedoms: as a Justice of the Canadian Supreme Court described it, the Charter was seen by the Canadian people as their part of the Constitution. We hope that this shows that the current negative public perceptions of the Human Rights Act are not necessarily immutable.


73. We welcome the Review's proposal to take a proactive approach to debunking myths and misperceptions about the HRA, and we hope that the DCA's communications strategy will promote the positive realities about the Act as vigorously as it debunks the myths.

74. We note however that the Review is thin in providing clear examples of ways in which the Human Rights Act has beneficially affected the development and implementation of policy. Indeed, three out of the four examples given of the impact of the Act on the delivery of policy are negative (delay caused in a court about installation of a video camera for a magistrate with sight difficulties; over-cautious decisions being made by local authorities; the Anthony Rice case). We therefore asked the Lord Chancellor if he was able to provide any better evidence of the claims he made for the Act's beneficial effects. He gave three examples:

"A couple who have been married for 50 or 60 years: the local authority seeks to separate them into two care homes when they cannot look after themselves. The Human Rights Act says they cannot be separated. Secondly, the adult children of the woman who is fed her breakfast while sitting on a commode say that is contrary to her human rights and that mistreatment stops. Thirdly, the practice of the state in making anybody who wished to apply to be released from compulsory detention in a mental hospital wait eight weeks, not before the application could be heard, not because there was any reason for the eight-week delay but simply because it was convenient administratively for there being an eight-week delay. Those are three specific examples of the hugely beneficial effects of the Human Rights Act. Very many of the beneficial effects come from the fact that the state, whether it be central government departments or local authorities, now have to consider things in the context of, "Does what I do affect people to the minimum in terms of infringing their human rights?", and human rights in the examples that I have given means people's basic entitlement to dignity."[61]

75. In our view, the public's commitment to human rights, and to the Human Rights Act, depends on the wider dissemination of such positive examples of the difference the Human Rights Act is making in practice. Without a wider appreciation of that fact, we are as concerned as our predecessor Committee that the ambitious goal of achieving a human rights culture in the UK will not be achieved. We therefore draw together here a few examples of tangible benefits which have accrued to groups such as the elderly, the disabled, carers and council tenants as a result of court decisions under the Human Rights Act. We think it is important to point out that by addressing this question we are not suggesting that the Human Rights Act does not have an important role to play in protecting the rights of unpopular minorities and vulnerable or marginalised groups, such as prisoners, those suspected of crime or terrorism, Gypsies and Travellers, gay people, transsexuals and others. We hope that our reports speak for themselves in demonstrating that in our view the Act benefits such vulnerable and often unpopular people or groups. But we also think that there is a danger that the ways in which the Act benefits ordinary people in their everyday lives, which is an important part of the overall picture of human rights protection, does not attract the same public attention, with the result that the public often perceive that only the undeserving benefit from the protection of the Act, at the expense of the deserving majority. We think that the legitimacy of our human rights machinery in the eyes of the public depends on this part of the picture also being known.

76. Older people living in residential care homes run by local authorities have secured much better protection against home closure decisions which involve risks to their life, health, dignity or psychological well-being, or which disproportionately interfere with their right to respect for their home. As a result of the Human Rights Act, not only must residents of such care homes for the elderly be properly consulted about proposed closures, but the authorities running such homes must conduct proper investigations into the likely impact of closure on the elderly people in the home and be able to demonstrate that they have carried out a proper balancing exercise between the human rights of the affected residents and the reasons relied on to justify closure.[62]

77. Disabled people who were having difficulty accessing a wide range of care services because of the effect of restrictive policies on manual handling which prevented their being lifted manually, for example on and off the toilet, have benefited from a judicial reinterpretation of the Manual Handling Regulations to make them human rights compatible.[63] The court read the regulations in such a way as to make blanket "no lifting" policies unlawful, and to require providers of services to disabled people to draw up more carefully balanced policies which seek to ensure that the rights of disabled people to dignity and to participate in the life of their community are not unduly interfered with.

78. Carers of other family members have obtained recognition of the importance of receiving assistance in the home of the person receiving care, rather than taking them from their home when the carers are no longer able to provide for all their needs.[64] Foster carers who were family members of the child being cared for have also secured recognition of their entitlement to benefits from the local authority at the same rate as non-family foster carers.[65]

79. Council tenants have established that there is a positive obligation on local authority landlords, arising from the state's duty to ensure respect for the right to home and family life, to maintain the condition of their housing stock in such a condition that they do not let out properties which are unfit for human habitation or prejudicial to health.[66] A disabled council tenant has successfully used the Act to establish that a local authority is under a positive obligation to enable her to lead as normal a family life as possible, and to secure her physical integrity and human dignity, by providing the specially adapted accommodation which she was assessed as requiring.[67]

80. As these examples show, litigation under the Human Rights Act has already brought very tangible benefits to ordinary people in their everyday lives, but these very seldom attract public attention.

Possible amendment of the HRA

81. The DCA review rules out withdrawing from the ECHR or repealing the HRA. It does not, however, rule out the possibility of amending the HRA in future, e.g. by requiring particular regard to be paid to the right to life in Article 2 in the same way as sections 12 and 13 of the Act already require in relation to freedom of expression and freedom of religion. In fact, sections 12 and 13 of the Act have made no difference in practice to the way in which the courts have interpreted those Convention rights, since the courts are still required to reach a Convention-compatible conclusion, so it is doubtful whether this would achieve what the Government appears to intend. We therefore asked the Lord Chancellor why it would make any difference to impose a new duty to have special regard to the protection of the public.

82. The Lord Chancellor agreed that there was no evidence that sections 12 or 13 of the HRA have in any way affected the courts' construction of the Convention.[68] In his view the value of such a provision would only be to send a message to officials or people working for public authorities dealing in a particular area, rather than to change the meaning or effect of the Convention. He thought that if it would help in relation to officials getting the balance right, because the legislature was in effect underlining the importance of public protection in those sorts of cases, then it might be worth doing. He did not think it inappropriate to use legislation to "send messages" in this way,[69] but on current evidence he was not persuaded that it was necessary: "we would need some evidence that it was worth doing on that basis."[70]

83. We welcome the fact that the Lord Chancellor does not, on current evidence, see the need to amend the HRA in the way contemplated in the DCA Review. However, we do not agree that it would be an appropriate use of legislative power to introduce a duty to have regard to public safety solely in order to "send a signal" to officials about the law which already applies. In our view, legislation should be used to change the law, not to send messages about it. If there is evidence that officials are getting the balance wrong and giving too little weight to public safety considerations when making human rights decisions, the proper way to deal with such a problem would in our view be by way of improved guidance and training to ensure that the misunderstanding of the law is rectified.

84. In any event, public safety is already at the heart of the Convention on Human Rights. The Convention recognises that a person's right to liberty can be taken away for a number of reasons, including their detention following conviction of a criminal offence, or pending their deportation or extradition.[71] The qualified rights in the Convention, such as the right to respect for privacy and family life, can be subjected to proportionate limitations in the interests of national security, the prevention of disorder or crime, and the rights and freedoms of others.[72] Moreover, the Convention, as interpreted by the European Court of Human Rights, imposes positive obligations on the State to take various steps to protect people against crime, including by having adequate laws to protect people against threats to their life and physical integrity,[73] and by taking active steps to protect individuals whose life or physical integrity may be at risk from the criminal acts of somebody else.[74]

85. We are therefore clear that there is no need either to amend the HRA or introduce specific legislation to clarify that public safety comes first. Properly understood, the Convention, as given effect by the Human Rights Act, already makes that abundantly clear. Misunderstanding of the requirements of the Act, if it exists, would not therefore require any amendment of the Act itself, or any other clarificatory legislation. What would be required, if such misunderstanding were demonstrated to exist, would be better training and guidance.

The meaning of "public authority"

86. The DCA review refers to the Government's intervention in the case of R (on the application of Johnson and others) v London Borough of Havering to seek to clarify the law following the Leonard Cheshire case on the meaning of "public authority" in the Human Rights Act. That intervention failed to achieve the Government's objectives: the High Court upheld the approach in Leonard Cheshire, refused permission to "leapfrog" to the House of Lords, and refused permission to appeal to the Court of Appeal.

87. In light of the failure so far of the Government's strategy to intervene in an appropriate case, we asked the Lord Chancellor whether the Government will now consider primary legislation to clarify the interpretation of "public authority" under the HRA. He said:

"Possibly. My own inclination is that this is the sort of thing that could be dealt with on a case-by-case basis. Every time you try and define what is meant by "public authority" you simply, as it were, spawn more litigation. The fact that we did not get into the London Borough of Havering case does not necessarily mean that there will not be another case in which the thing is looked at. I just feel that legislating to try and solve the problem may not work at the end of the day. I think the right thing to do is to try and get the courts to come to a decision. It is the sort of thing, frustrating as it is, where dealing with it on a case-by-case basis might be the right way to deal with it." [75]

88. He went on to say that the Government would be looking for another opportunity to intervene in an appropriate case.[76]

89. We also asked the Lord Chancellor about concerns expressed in the DCA Review that a wider re-interpretation of "public authority" could "increase burdens on private landlords, divert resources from this sector and deter property owners from entering the market to provide temporary and longer term accommodation to those owed a duty by the local authority under housing legislation". These are concerns we do not recall having heard expressed by the Government before in relation to this question. The Lord Chancellor explained that widening the definition of "public authority" might drive a whole range of private providers out of the particular market, for example for residential care, and so make it harder to provide residential care for people.[77] He distinguished between private prisons which, in his view, "obviously" should be public authorities, and other areas such as housing and residential care where he thought the issue was more difficult. Before extending the definition of "public authority" he thought that the effect on who comes into the market for providing the service and who does not should be looked at.[78]

90. We are extremely disappointed by the Government's new concern about driving private providers out of the market by widening the definition of "public authority". This was not a concern which the Government had at the time of our predecessor Committee's report on The Meaning of Public Authority.[79] In our view it represents a serious dilution of the Government's consistent position since the enactment of the Human Rights Act, that private providers of services which a public authority would otherwise provide are performing a public function and should therefore be bound by the obligation to act compatibly with Convention rights in s. 6 of the HRA. The more the trend to outsourcing the provision of public services increases, the greater the importance of private providers of such services being bound by the obligation to act compatibly with Convention rights. We find the Government's position on this question to be seriously at odds with its avowed intention elsewhere in the DCA Review and in the Lord Chancellor's evidence to make a positive case for the Human Rights Act: the more public services are outsourced, the less will people be able to enforce their human rights directly against those providing care or other services for them.

91. In our work on the scrutiny of legislation we increasingly find it necessary to raise with the Government the question of whether a private or voluntary sector body which will be exercising a power formerly exercised by a public body will be considered by the Government to be a public authority for the purposes of the Act. We also find it increasingly unsatisfactory to have to rely on the Government's view on that question when there is a very real risk, in light of the Leonard Cheshire case, that the courts will take a different view.

92. In our view, although we do not seek to discourage the Government from pursuing its strategy of intervening in an appropriate case, the failure of that strategy to date and the growing urgency of the problem mean that it is now time to give serious consideration to whether or not to introduce legislation to reverse the effect of the Leonard Cheshire decision and to seek to give proper effect to Parliament's intention at the time of the passage of the HRA. We do not think it would be advisable to try to prescribe a comprehensive list of persons or bodies who are public authorities for the purposes of the Human Rights Act, and we recognise that seeking to define "public authority" generally would not be desirable because of the knock-on effect on other areas of law. However, we think there may not be insuperable obstacles to drafting a simple statutory formula which makes clear that any person or body providing goods, services or facilities to the public, pursuant to a contract with a public authority, is itself a public authority for the specific purposes of the HRA. This is an issue to which we expect to return before long.

The DCA's 2004 strategic review

93. Partly as a result of the previous JCHR's Sixth Report of Session 2002-03, in May 2004 Sir Hayden Phillips, the then Permanent Secretary of the DCA, initiated a "strategic review" of the Departments' arrangements for implementing the Human Rights Act. He asked Departments to review a number of issues, including

94. Sir Hayden asked for initial responses from Departments by 1 July 2004. We have repeatedly asked the DCA about the fate of this review and when it would be published. However, no outcome of the strategic review has so far been announced. Giving oral evidence to us in January 2006, the then Human Rights Minister Harriet Harman said "we are conducting a strategic review to inform ourselves of the progress".

95. We asked the Lord Chancellor about the conclusions reached by the 2004 review, whether it would be published and how it has informed the DCA review in July of this year. The Lord Chancellor told us that the 2004 review was not intended to be published and will not be published.[80] It had been drawn upon to some extent in the July DCA Review, but their purposes were very different. The purpose of the 2004 review had been to work out how human rights had been given effect across central Government departments and the response in 2004 indicated that some departments were on top of implementation while others were not really focused on it at all.

96. We were very surprised to learn that the 2004 review will not be published. We have been chasing the DCA for a very long time for the outcome of this review and we have never before been told that it was conducted on a confidential basis and that the outcome will not be published. We welcome the Lord Chancellor's promise to "think about" making a copy confidentially available to this Committee and we urge him to do so to inform the work we do in monitoring the Government's implementation of the HRA.

48   Q31. Back

49   (1997) 23 EHRR 413. Back

50   Q59. Back

51   Twenty-fourth Report of 2005-05, Counter-Terrorism Policy and Human Rights: Prosecution and Pre-charge Detention, HL Paper 240/HC 1576 Back

52   Q60. Back

53   Twenty-third Report of 2005-06, The Committee's Future Working Practices, HL Paper 239/HC 1575 Back

54   Q36. Back

55   Q37. Back

56   Q64. Back

57   Q66. Back

58   DCA Review, p. 20. Back

59   Q70. Back

60   Q71. Back

61   Q32. Back

62   See e.g. R (Coughlan) v North East Devon HA [2001] QB 213; Cowl v Plymouth City Council [2001] 1 WLR 803; and Goldsmith v London Borough of Wandsworth [2004] EWCA Civ 1170. Back

63   A and B, X and Y v East Sussex County Council [2003] EWHC 167 (Admin) Back

64   Rachel Gunter (by her litigation friend and father Edwin Gunter) v South West Staffordshire Primary Care Trust [2005] EWHC Back

65   R (L and others) v Manchester City Council [2002] 1 FLR 43. Back

66   Lee v Leeds City Council [2002] 1 WLR 1488. Back

67   R (Bernard) v Enfield London Borough Council [2002] EWHC 2282 Admin. Back

68   Q57. Back

69   Q58. Back

70   Q57. Back

71   Article 5 ECHR. Back

72   Articles 8(2), 9(2), 10(2) and 11(2) ECHR. Back

73   X and Y v The Netherlands (1986) 8 EHRR 235; Oneryildiz v Turkey (2004) 39 EHRR 12. Back

74   Osman v UK (2000) 29 EHRR 245: Edwards v UK (2002) 35 EHRR 19. Back

75   Q39. Back

76   Q44. Back

77   Q40. Back

78   Q41. Back

79   Seventh Report of Session 2003-04, The Meaning of Public Authority under the Human Rights Act, HL Paper 39/HC 382 Back

80   Q20. Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2006
Prepared 14 November 2006