Joint Committee On Human Rights Eighth Report

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

previous page contents next page

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

© Parliamentary copyright 2008
Prepared 6 February 2008