Bringing rights home for everyone:
1. The Human Rights Act 1998 ("HRA") was
intended to make the rights set out on the European Convention
on Human Rights ("ECHR") enforceable more swiftly and
directly, within the UK. The HRA was intended to bring the rights
guaranteed by the ECHR "home" for everyone and provide
effective domestic remedies for violations of ECHR rights and
2. The HRA makes it unlawful for "public authorities"
to act in breach of Convention rights.
The HRA does not define "public authority" but the duty
to act in a Convention compatible way applies to "pure"
public authorities, such as central government departments and
local authorities, and to "any person certain of whose functions
are functions of a public nature".
In this Report we refer to such a person as a "functional
public authority". The HRA does not define "public function"
but it was the intention of Parliament that a wide range of bodies
performing public functions, including the delivery of public
services, would fall within the obligation under s.6 to act in
a manner compatible with the Convention rights protected by the
Act. In the course of parliamentary debates on the passage of
the HRA, statements by the then Home Secretary and the then Lord
Chancellor made it clear that persons or bodies delivering privatised
or contracted-out public services were intended to be brought
within the scope of the Act by the "public function"
provision. In a series
of cases, however, our domestic courts have adopted a more 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. We consider
that this is a problem of great importance, which is seriously
at odds with the express intention that the HRA would help to
establish a widespread and deeply rooted culture of human rights
in the UK.
3. In their 2004 report, The Meaning of Public Authority
under the Human Rights Act (hereafter "the first MPA Report"),
our predecessor Committee concluded that the interpretation of
"public function" adopted by our courts was "highly
concern at the development in case-law on this issue was such
that they concluded that it had led to a "serious gap"
in the protection which the Act was intended to offer which would
be likely to lead to deprivation of avenues of redress for individuals
whose Convention rights were breached.
4. This gap is not just a theoretical legal problem
but has significant and immediate practical implications. In an
environment where many services previously delivered by public
authorities are being privatised or contracted out to private
suppliers, the law is out of step with reality. The implications
of the narrow interpretation of the meaning of public authority
are particularly acute for a range of particularly vulnerable
people in society, including elderly people in private care homes,
people in housing association accommodation, and children outside
the maintained education sector, or in receipt of children's services
provided by private or voluntary sector bodies.
5. Our predecessors considered several potential
solutions to the problem created by the interpretation of s6(3)(b)
by the courts. These were:
- Amendment of the HRA, in one
of a number of possible ways, to clarify the responsibility of
organisations to protect human rights when carrying out public
- Protection of human rights
through the terms of contracts between public authorities and
private providers of public services, and the publication of authoritative
guidance on when an organisation is likely to be a public authority
for the purposes of the HRA; and
- Development of the case-law
on the meaning of public authority along lines providing for a
more consistent and comprehensive protection of human rights.
6. Our predecessors concluded that:
- Amendment of the HRA would
be likely to create as many problems as it solved, and would be
too early in the experience of the Act's implementation.
- Guidance from the Government
on the formulation of contracts and other best practice would
be helpful, but could not provide a complete or an enduring solution.
- The Government should intervene
in the public interest as a third party in cases where it could
press for a broad functional interpretation of public authority.
7. The first MPA Report identified a number of principles
of interpretation, key to a functional approach to the meaning
of "public authority".
In summary, these were that functional public authorities should
be identified without reference to the nature of the organisation
itself. The key test for "public function" should be
whether the relevant "function" is one for which the
Government has assumed responsibility in the public interest.
Whether an organisation performs those functions under direct
statutory authority, or under contract, should not lead to a distinction
in the application of the HRA. A private body operating to discharge
a Government programme is likely to exercise a degree of power
and control over the realisation of an individual's Convention
rights which, in the absence of delegation, would be exercised
directly by the State. We adopt the interpretative principles
key to the identification of a "public function" set
out by our predecessor Committee and consider that any other interpretation
would lead to the perpetuation of gaps in the human rights protection
intended by Parliament during the passage of the HRA.
8. Since the publication of the first MPA Report,
there have been a number of significant developments:
- In February 2005, the Government
accepted our predecessor Committee's principal recommendations.
The then Minister for State at the Department for Constitutional
Affairs (DCA) indicated his Department's readiness to intervene
in any case at Court of Appeal level in which the meaning of public
authority was in issue. He also indicated that the Office for
the Deputy Prime Minister (ODPM) would produce suitable guidance
on the protection of human rights in contracts with private service
providers by March 2005;
- In November 2005, the ODPM
published guidance to local authorities on contracting for services
in light of the HRA ("the Guidance"). Responsibility
for the administration of this Guidance has since passed to the
Department for Communities and Local Government ("DCLG").
- During the Lords Report stage
of the Equality Bill, in October 2005, Baroness Greengross introduced
an amendment to that Bill which would have provided that all care
standards agencies covered by sections 1 to 4 of the Care Standards
Act 2000 would be considered public authorities for the purpose
of the HRA. Although she withdrew this amendment, the Government
accepted that it would be possible for the Government to look
"more closely and carefully at whether they might do more
to address the immediacy of the problem".
- In 2006, the Government announced
a review of the operation of equality law in the United Kingdom,
with a view to introducing a Single Equality Act. The Discrimination
Law Review will consider the wider implications of the application
of positive equality duties linked to the performance of "public
- In January 2007, our Chairman,
Mr Andrew Dismore MP, introduced a Private Member's Bill in the
House of Commons on this issue. His Bill has the support of a
number of our members in the House of Commons. In his speech on
the ten minute rule motion seeking leave to bring in that Bill,
he said "my Bill is in my name, not that of the JCHR, though
its supporters include Commons JCHR members from all three parties
represented on the Committee. I believe that the case for addressing
the issue through legislation is stronger now than ever".
That Bill, which is not yet printed, is listed for second reading
on Friday 15 June 2007. We hope that our recommendations, below,
will assist members of the House of Commons during the Second
Reading debate on this Bill.
- In early 2007, the Court of
Appeal considered two further cases raising this issue. The Government
intervened in both with the aim of ensuring that the meaning of
public authority is given a wide interpretation. In both cases,
the Government argued that "functional" public authorities
under s6(3)(b) should include private providers providing care
to the elderly on behalf of a local authority. In both of these
cases, the Court of Appeal refused to adopt a wider interpretation
of public authority, or "public function" without further
guidance from the House of Lords. 
These cases are listed for appeal in the House of Lords, and therefore
fall within the sub-judice resolutions of both Houses of Parliament.
We are therefore unable to comment on these cases in this Report.
9. Three years have passed since the publication
of the first MPA Report on this issue and the tenth anniversary
of the enactment of the HRA is fast approaching. Since the first
MPA Report, we have repeatedly commented on the practical and
other implications of this gap in the protection offered by the
HRA. Indeed, as contracting
out of the performance of public functions has continued apace,
we have frequently found it necessary in our legislative scrutiny
work to ask the Government to make clear whether it considers
bodies performing such functions to be public authorities for
the purposes of the HRA.
In November 2006 we called for written evidence on the subject,
including, in particular, on:
- the effectiveness of Government
guidance on local authority contracts and the HRA;
- the implications of developments
- any practical implications
of the restrictive meaning given to "public authority"
in addition to those identified by our predecessor Committee;
- whether private providers would
leave the market if they were "public authorities" for
the purpose of the HRA.
10. We specifically asked for views on potential
means of addressing the problem, including by means of primary
11. The purpose of this inquiry is to build upon
the valuable work of our predecessor Committee and to assess whether
any recent developments in law or practice have alleviated this
serious problem. We adopt our predecessor Committee's assessment
of the law and the implications of the gap in human rights protection
created by the narrow interpretation of the meaning of "public
authority" in s.6 of the Human Rights Act. We consider that
their previous recommendations were capable of resulting in an
effective solution. However, during the last three years, there
has been little evidence of progress towards an approach that
gives effect to what we consider to have been Parliament's original
intention to bring rights home for everyone, including those who
receive public services delivered by private bodies. In view of
the continuing trend towards the outsourcing of public services
and the continuing failure to fill the gap in human rights protection,
we consider that it has now become a matter of some urgency to
consider what action is necessary to bring about a solution.
12. We received written evidence from a wide range
of organisations and individuals, representing both the providers
and recipients of public services, as well as from NGOs and Government.
We are grateful to all those who helped us in our deliberations.
1 Section 6(1) HRA 1998. Back
Section 6(3)(b) HRA. Back
See for example: HC Deb, 16 February 1998, col 773 (Home Secretary);
HC Deb, 17 June 1998, cols 409-410, 433 (Home Secretary), HL Deb,
24 November 1997, col 800, 811 (Lord Chancellor). Back
Seventh Report of Session 2003-04, The Meaning of Public Authority
under the Human Rights Act, HL Paper 39/HC Paper 382 ("The
First MPA Report"). Back
ibid, paras 66 - 68. Back
ibid, paras 89 - 95. Back
ibid, paras 135 - 147. Back
Nineteenth Report of Session 2004-05, The Work of the Committee
in the 2001-2005 Parliament, HL Paper 12, HC 552, paras 146
- 149, Appendix 4. Back
"Guidance on contracting for services in light of the
Human Rights Act 1998", ODPM, November 2005 http://www.communities.gov.uk/index.asp?id=1161370. Back
HL Deb, 19 October 2005, Col 876 (Baroness Ashton of Upholland). Back
HC Deb, 9 January 2007, col 152. Back
Johnson and others v London Borough of Havering 
EWCA Civ 26; YL v (1) Birmingham City Council (2) Southern
Cross Healthcare and others  EWCA Civ 27. Back
See for example, Third Report of Session 2006-07, Legislative
Scrutiny: Second Progress Report, paras 3.6 - 3.10 (Offender
Management Bill); Second Report of Session 2006-07, Legislative
Scrutiny: First Progress Report, paras 3.28 - 3.32. Back