Section 6 of the Human Rights Act makes it unlawful for public authorities to act in breach of Convention rights. In a series of cases relating to delivery of public services by private suppliers, notably the Leonard Cheshire case, the UK courts have adopted a restrictive interpretation of the meaning of public authority, potentially depriving numerous, often vulnerable people, such as those placed by local authorities in long term care in private care homes or living in accommodation rented from registered social landlords, from the human rights protection afforded by the HRA.
The previous Joint Committee on Human Rights considered this matter in its Seventh Report of Session 2003-04, and made a number of recommendations for addressing the problem. In this Report the current Committee expresses its agreement with its predecessors' analysis of the issue, and reviews developments since publication of their Report. The Committee says that there has been little evidence of progress in the last three years to close the gap in human rights protection arising from the narrow interpretation of meaning of public authority, and makes further recommendations to bring about a solution, which it says is now a matter of some urgency. (paragraph 11)
In Chapter 2 of the Report, the Committee examines developments in case-law since 2004 and, while welcoming interventions by the Government in cases in order to seek to persuade the courts to adopt a more functional interpretation of the meaning of public authority, concludes that this strategy has so far proved unsuccessful, expressing disappointment that the approach taken by the Court of Appeal in the Leonard Cheshire case continues to dominate. (paragraph 22)
The Committee also considers the effectiveness of the Guidance on contracting for services in the light of the Human Rights Act which was published by the Government in November 2005 in response to a recommendation from the previous JCHR. The Committee considers that the Guidance takes a very negative approach to the difficulties facing the use of contracts to secure better the protection of human rights (paragraph 45), and expresses concern that the Guidance lacks accessibility and is difficult to understand (paragraph 49), and has little or no influence on the procurement policies of local authorities (paragraph 53). The Committee concludes that without further significant joint efforts by the Department for Constitutional Affairs and the Department for Communities and Local Government the Guidance will continue to fail to have any significant impact on the protection of human rights (paragraph 59). The Committee also agrees with its predecessors that human rights cannot be fully and effectively protected through the use of contractual terms, and that the guidance cannot be a substitute for the direct application of the HRA to service providers. (paragraph 60)
In Chapter 3, the Committee considers the case for further action to overcome the problems arising from a narrow interpretation of public authority. The Committee notes that in its scrutiny of legislation it regularly finds it necessary to raise with the Government the question of whether a private or voluntary body will be considered to be a public authority for the purposes of the HRA, and says that it finds it increasingly unsatisfactory to rely on the Government's view of the matter when there is a real risk that this will not be reflected in the decisions of the courts (paragraph 66). In addition the Committee says it is unacceptable that contracts for the provision of essential public services are entered into without any clarity as to the position of the service provider under the HRA (paragraph 67), and that the ongoing uncertainty inhibits the development of a proactive approach to the mainstreaming of human rights standards in policy development and service delivery (paragraph 69). The Committee concludes that the practical implications of the current case law are such that some service users are deprived of a right to an effective remedy for any violation of their Convention rights (paragraph 83).
The Committee also considers the likelihood of service providers leaving the market if a wider interpretation were given to the meaning of public authority. The Committee expresses its concern that service providers are unaware of the operational benefits offered by adherence to Convention rights (paragraph 97). In addition, the Committee considers that a concern raised in evidence, that if private providers were treated as public authorities under the HRA they could not be considered to be a "victim" for the purposes of the Act and would therefore be precluded from relying on their own Convention rights, is not well founded (paragraph 102).
The Committee concludes that it has not seen any convincing evidence that providers would leave the public services market if they were subject to the duty to act compatibly with Convention rights, and expresses its deep concern that the Government continues to encourage trepidation about the application of the HRA amongst private providers by expressing premature and unsupported concerns about market flight (paragraph 105).
Welcoming the Government's new Common Sense, Commons Values campaign in support of the HRA and renewed commitment to the development of a "human rights culture" within the UK, the Committee points out that the campaign will be of limited value if it can only be directed to "pure" public authorities (paragraph 110). The Committee concludes, in view of the continuing trend towards the contracting out of public functions, that there is now a need for urgent action to secure a solution to the problem of the meaning of public authority in order to reinstate the application of the HRA in accordance with Parliament's intention when it passed the Act (paragraph 112).
In Chapter 4 of the Report the Committee considers steps which could be taken to resolve the problems identified by it and the previous JCHR.
In relation to guidance on contracting for public services and human rights, the Committee recommends that urgent attention be given to revising the existing Guidance to incorporate practical, accessible advice to all commissioning bodies (paragraph 119). The Committee recommends that this Guidance should be prepared in consultation with relevant NGOs and the Local Government Association (paragraph 120), and that template contract clauses should be developed to supplement the Guidance (paragraph 122).
In relation to use of further litigation , the Committee is concerned that it is unlikely to lead to an enduring and effective solution to the interpretative problems associated with the meaning of public authority. The Committee considers it to be unacceptable to wait for a solution to arise from the evolution of the law in this area through judicial interpretation (paragraph 127).
The Committee notes that the previous JCHR thought that it would be undesirable to consider a legislative solution to the problem, partly because they felt it was at that time too early in the implementation of the HRA to consider amending the Act. However, in the light of the continuation of the problem and of the evidence it has received, the Committee concludes that the time has now come to bring forward a legislative solution (paragraph 136).
The Committee examines several possible legislative solutions. It says it would strongly resist the amendment of the HRA to identify individual types or categories of "public authority" (paragraph 137), and it does not think that extension of the application of the HRA by service sector would lead to an enduring solution (paragraph 139). In the absence of a more general legislative solution, however, the Committee recommends that urgent consideration should be given to amendment of existing statutes to identify clearly that sectors most seriously affected by the narrow interpretation of public authority are subject to the HRA (paragraph 142), and without such a solution the Committee also considers that it will be necessary for Bills providing for the contracting-out or delegation of public functions to identify clearly that the body performing the functions will be a public authority for the purposes of the HRA (paragraph 143).
Finally, the Committee considers use of legislation to clarify the meaning of public authority in section 6 HRA. Arguing that the direct amendment of the Act should be considered only as a last resort, because of its status as a significant and important constitutional measure, the Committee concludes that there is a strong case for a separate, supplementary and interpretative statute, specifically directed to clarifying the interpretation of "functions of a public nature" in s.6(3)(b) HRA, and provides a possible form of wording (paragraph 150). The committee considers that this approach would provide a solution to the problem while avoiding the constitutional implications of amending the HRA itself (paragraph 151).