Appendix 6: Letter dated 21 January 2008 from
the Rt Hon Jack Straw MP, Secretary of State for Justice, Ministry
of Justice
Thank you for your letter of 5 December 2007 about
the relationship of the Human Rights Act 1998 to contracted-out
provision of services in the Criminal Justice System, particularly
prisons, immigration detention facilities, secure training centres
and prisoner transport.
The Government considers that all non-governmental
bodies that provide the services you mention are functional public
authorities for the purposes of the Human Rights Act. For example,
contractors who run prisons will plainly have governmental functions
that involve the use of statutory coercive powers, that are extensively
regulated by statute, and which are provided at public expense.
These functions, and the statutory frameworks that
govern them, are clearly different to the function considered
in YL v Birmingham City Council and others.[57]
In that case, the local authority was obliged to "make arrangements
for providing"[58]
the residential accommodation in question. The provider of the
accommodation exercised no statutory powers itself and (as Lords
Scott and Neuberger observed) had no special or coercive powers
over its residents.
Therefore the judgment of the House of Lords in YL
has not affected the established legal position of the functions
in the Criminal Justice System about which you ask. As the Human
Rights Act applies directly to these functions, it would be otiose
to make specific reference to the Act in the contracts for the
provision of these services. Non-governmental bodies who exercise
governmental functions, such as the running of a prison, have
a duty to act compatibly with Convention rights and if they fail
to do so, proceedings may be brought against them under the Human
Rights Act
You also express concern that the drafting of contracts
for the provision of such services may undermine compliance with
human rights standards. In the example that you give, there is
no inherent inconsistency between human rights standards - specifically
the proportionate use of restraint - and the prevention of escapes
from custody. As you know, the Government firmly believes that
there is no inconsistency between the Human Rights Act and protection
of the public. The Government therefore expects that the providers
of these services should do so in compliance with all of their
obligations, including those as public authorities under the Human
Rights Act.
You ask whether more information could be made available
to Parliament and the public about the contracted-out provision
of such services. Subject to the necessary constraints of public
safety and commercial confidence, the Government acknowledges
the importance of making information available about the delivery
of public services. If your Committee is concerned about the unavailability
of specific information in this area, the Government would of
course consider whether to make it available.
I am copying this letter to the Home Secretary, to
whom you wrote in similar terms and on whose behalf I am also
replying.
57 [2007] UKHL 27 Back
58
s. 21(1) National Assistance Act 1948 (as amended) Back
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