Joint Committee On Human Rights

Joint Committee On Human Rights Written Evidence

1 Introduction

Bringing rights home for everyone: the problem

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 freedoms.

2. The HRA makes it unlawful for "public authorities" to act in breach of Convention rights.[1] 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".[2] 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.[3] 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 problematic".[4] Their 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]

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 functions;
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.[6]

7. The first MPA Report identified a number of principles of interpretation, key to a functional approach to the meaning of "public authority".[7] 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;[8]
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").[9]
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".[10]
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 functions".[11]
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".[12] 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.[13] 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.[14] 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.[15] 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 in case-law;
any practical implications of the restrictive meaning given to "public authority" in addition to those identified by our predecessor Committee; and
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 legislation.

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.

Acknowledgements

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

2 Section 6(3)(b) HRA. Back

3 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

4 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

5 ibid, paras 66 - 68. Back

6 ibid, paras 89 - 95. Back

7 ibid, paras 135 - 147. Back

8 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

9 "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

10 HL Deb, 19 October 2005, Col 876 (Baroness Ashton of Upholland). Back