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
- the incorporation of human
rights in departments' strategic business objectives
- scope for exploiting synergies
between human rights and equality/diversity
- delivery of basic human rights
training and awareness training
- arrangements for communications
about human rights matters within Departments, with associated
public bodies, and more widely
- arrangements for ensuring appropriate
awareness and practice in subsidiary public bodies such as NDPBs
- Departments' general commitment
to Convention rights as an integral part of public administration
and policy-making.
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