Joint Committee On Human Rights

Joint Committee On Human Rights Written Evidence

2 The Developing Law: Closing the Gap?

13. Our predecessor Committee conducted a thorough review of the relevant legal background to this issue. What follows is a summary of their analysis.

14. The starting point for the consideration of this issue is the international human rights obligations which the Act is designed to "bring home", the rights guaranteed by the ECHR. Article 1 ECHR requires the UK to secure the benefit of each of the Convention rights for everyone in its jurisdiction. Article 13 ECHR obliges the State to provide access to an effective remedy for any alleged breach of Convention rights. It is well established that the State cannot evade its responsibility to safeguard Convention rights by delegation to private bodies and that, in some circumstances, the State must take active steps to protect an individual's rights from interference by others.[16] In our view it is clear that Parliament envisaged that the scope of s.6(3)(b), and the test for identifying a "functional public authority" should be based primarily on the nature of the function being performed by the private body, rather than the intrinsic nature of the body itself.[17]

15. Unfortunately, the consequences of the judicial interpretation of the law, and specifically, the restrictive interpretation adopted by the Court of Appeal in the Leonard Cheshire case,[18] is that, as the law stands, a private body is likely to be considered a "functional public authority" if:

Its structures and work are closely linked with the delegating or contracting out state body; or
It is exercising powers of a public nature directly assigned to it by statute; or
It is exercising coercive powers devolved from the State.

16. Beyond these categories, whether a body falls within s6(3)(b) remains extremely uncertain. Factors such as delegation from, or supervision by, a State body, public funding, the public interest in the relevant function or service being provided and the pursuit of the public interest as opposed to a pure commercial interest in profit are not in themselves likely to establish public authority status.[19]

17. In Aston Cantlow v Wallbank, the leading authority on "pure" public authorities, the House of Lords stressed that it was the nature of the function being performed that should determine whether a body was a functional public authority. Lord Nicholls of Birkenhead considered that there should be a "generously wide" interpretation of public function so as to further the statutory aim of promoting human rights protection whilst still allowing functional bodies to rely on the Convention rights themselves where they acted privately.[20] We consider that the approach of the House of Lords in this case would provide an effective basis for the protection of Convention rights. The analysis in this case is, we believe, preferable to that of the Court of Appeal in Leonard Cheshire.[21]

18. The tests applied by the courts to determine whether a function is a "public function" within the meaning of section 6(3)(b) of the HRA have been, in human rights terms, highly problematic. Their approach results in many instances where an organisation provides a public service on behalf of a local authority, yet does not have responsibilities to the recipients of the service under the HRA. Effectively, the protection of human rights is dependent not on the type of power being exercised, nor on its capacity to interfere with human rights, but on the relatively arbitrary criterion of the body's administrative links with institutions of State.[22]

19. In the first MPA Report, our predecessors considered whether it was arguable that the reach of the HRA, as interpreted by the courts was adequate as any delegating public authority would, itself, remain liable under the HRA for any breach of Convention rights that results from the actions of a private service provider. Our predecessors concluded that accountability of the contracting-out body for compliance with Convention rights by contractors (where and to the extent that it is available) is not an adequate substitute for direct accountability of the service provider under s. 6. It would provide only partial protection and it would be undesirable for the body directly providing services for which the Government had assumed responsibility to be able to shift responsibility for human rights compliance elsewhere.[23]

Interpretation by the Courts: Closing the Gap?

20. As noted, in paragraph 8, above, two cases in which the Government intervened are currently subject to appeal to the House of Lords. On the current state of the law, however, we conclude, with some significant concern, that there have been no developments during the past three years which have contributed towards filling the gap in human rights protection created by the narrow interpretation adopted by our Courts.

21. When we called for evidence in this inquiry these two cases were not sub judice and some evidence submitted to us refers to them. As the cases are now sub judice we cannot publish evidence referring to them in detail.

22. While we welcome the steps taken by the Government to persuade the courts to adopt a more functional interpretation of the meaning of public authority, we note that this strategy has so far proved unsuccessful: both the High Court and the Court of Appeal have refused to depart from the analysis in Leonard Cheshire without further guidance from the House of Lords. A significant number of submissions to our inquiry expressed their concern at the continuing state of uncertainty in our law.[24] For example, Help the Aged has called the results of the Government's interventions thus far "deeply disappointing".[25] We are similarly disappointed that the more institutional approach taken by the Court of Appeal in Leonard Cheshire continues to dominate the public function test for the purposes of Article 6(3)(b) HRA.

23. We consider the likely effectiveness of continuing to pursue a resolution of this problem through further litigation in Chapter 4, below.

Public authorities and the Human Rights Act: Guidance

24. Our predecessor Committee considered two categories of guidance relevant to this issue: general guidance from Government on the meaning of public authority and specific guidance on the use of contracts to secure better protection of human rights in the delivery of public services in the private sector.[26] We consider each of these in turn, below.

GUIDANCE ON THE MEANING OF PUBLIC AUTHORITY

25. In evidence to our predecessor Committee, the Lord Chancellor indicated that guidance on this issue would be considered in the course of the revision of the Government's Human Rights Study Guide.[27] The Third Edition of the Human Rights Study Guide was published in October 2006. It gives examples of cases in which the courts have decided whether a particular type of body should be considered a public authority and notes that this is a "developing area". If people are concerned that a body has breached their Convention rights, the Study Guide suggests that they should take "specialist legal advice". Although this is an accurate statement of the position in law, it gives far from useful guidance to service users or would-be public authorities about their status. A study guide such as the booklet prepared by the DCA should reflect the legal position accurately. However, the advice that the booklet gives illustrates clearly the uncertainty caused by the judicial interpretation of the HRA.

26. The Gender Equality Code of Practice gives advice on the meaning of public authority for the purposes of the general gender equality duty in the Sex Discrimination Act 1975.[28] This duty, which comes into force in April 2007, is imposed on all public authorities and includes functional public authorities on the same basis as the HRA. We welcome the advice offered by that Code of Practice that authorities who may be carrying out functions of a public nature should safeguard their position by assuming that they are functional public authorities, and complying with the Gender Equality Duty. However, ultimately, that Code of Practice can only recommend that it is "advisable" to seek legal advice on this issue.

27. We are concerned that, as the law stands, the only guidance that can be given on the important issue of whether a body should be considered a functional public authority for the purposes of the HRA is to seek further "specialist legal advice". It is currently impossible for the Government, or any other body, to provide comprehensive and accessible advice on the application of the Human Rights Act. We consider that this represents a serious failure to achieve the aspiration of a human rights culture in which Convention rights are secured for individuals without the need for formal legal proceedings or the involvement of legal advisers.

28. In response to the first MPA Report, the Government committed itself to taking steps to "persuade the Courts to adopt a wider definition of public authority than exists at the moment (i.e. to take Lord Hope's line in Aston Cantlow rather than the Court of Appeal in Leonard Cheshire )".[29] We therefore noted with concern, the view expressed in the recent DCA Review of the HRA that a wider interpretation of "public authority" could

This argument is repeated in the evidence submitted by DCLG to this inquiry.[31] The Lord Chancellor also told us that widening the definition of public authority might drive a whole range of private providers out of a particular market, for example, residential care, so making it harder to provide residential care for people. He distinguished between those authorities that should "obviously" be considered functional public authorities and others which were "more difficult".[32] This was the first time that the Government had clearly articulated this reservation, and it did not offer any evidence in support of it.

29. The Government response to our Report on the recent DCA and Home Office Reviews of the HRA stressed that the Government's position on this issue had "not changed":

30. Most recently, the Prime Minister has confirmed that, in relation to the application of the HRA and contracting-out of public services:

31. It is difficult to ascertain from this series of Government statements what circumstances the Government consider will make it "obvious" that a service provider should be considered a "functional public authority". We agree with our predecessor Committee that general guidance from Government on the meaning of public authority has very little potential to reduce the gap in human rights protection caused by the interpretation of "public authority" adopted by our domestic courts. However, we are concerned that inconsistent statements from central Government on the intended application of the HRA may create further uncertainty for service providers and others. Notably, we reiterate the view set out in our Report on the DCA and Home Office Reviews of the HRA, that the recent concerns expressed by the Lord Chancellor and DCLG about the effect of the application of the HRA on the social housing market represent a serious dilution of the original intention of Parliament when passing the HRA and the Government's view, more generally expressed, that providers of services which a public authority would otherwise provide are performing a public function and should therefore be bound by the obligation to act compatibly with Convention rights in s.6 HRA.

32. We note the most recent statements of the Prime Minister and other senior Ministers that appear to confirm that the Government considers that the HRA should apply more broadly to those providing a public service. However, the Government's inconsistency on this issue seems entirely at odds with its recent campaign for the HRA, "Common Values, Common Sense",[35] which makes a commitment to making the operation of the HRA accessible and straightforward and to making a positive case for the public's engagement with the HRA.

GUIDANCE, CONTRACTS AND HUMAN RIGHTS

33. Our predecessor Committee recognised that contract terms could not provide a substitute for the direct protection of Convention rights offered by sections 6 and 7 of the HRA. They recognised, however, that there might be some benefit in examining whether references to human rights responsibilities in public procurement contracts could be beneficial:

Although contractual terms may not be capable of providing a fully comprehensive solution, we do see some potential, as described in the preceding section, in the development of standard contractual terms that would be required to be applied consistently wherever public services were contracted out, even if only as a stop-gap measure.[

34. They recommended that both DCA and ODPM give urgent attention to the development of guidance on the protection of human rights through contract, taking into account the potential problems identified in their Report.[37] These problems included the limited potential for the recipient of services to enforce a contract between a local authority and a private provider, the limited effect of guidance on existing contracts and the difficulty of achieving consistency across contracts and between different local authority areas and the financial and other constraints imposed by the market.[38]

35. We note that the Government remains committed to partnerships with the private and voluntary sectors as a means of delivering public services on a contracted-out basis. We consider the continued involvement of the private sector in the provision of public services at paragraph 63, below.

36. The ODPM published their Guidance on contracting for services in light of the HRA ("the Guidance") in November 2005.[39] Its purpose is to meet the recommendations of our predecessor Committee. The Guidance explains that where a "provider that is not a public authority provides a service to the public under contract to a public authority, that service needs to be provided in a way that takes account of the content of the Human Rights Act 1998, relevant to that contract". So, the Guidance begins from the assumption that it is relevant only to contracts with bodies which are not public authorities. It provides no further advice to commissioning public authorities on when the Guidance is relevant.

37. The Guidance identifies some of the problems analysed by our predecessors in their Report, including "consistency, enforceability and enforcement" issues and the commercial difficulties of negotiating contractual terms with uncertain implications (i.e. higher bid costs). These are treated as barriers to the incorporation of clauses based on human rights into contracts with service providers. So, for example, considering the "creative use of the Contracts (Rights of Third Parties) Act 1999", the Guidance does not suggest how, or whether, a purchasing authority should seek to secure rights for the beneficiaries of the contract. However, it notes that the supplier market will often be resistant to the use of that Act to confer rights on third parties (noting all of the likely objections).

38. We note that the Gender Equality Code of Practice, which advises public authorities on the implications of the general gender equality duty for contracting and procurement, takes a less ambiguous and more positive approach. It gives advice to commissioning bodies on steps they are recommended to take to achieve this and suggests some model contractual terms. It advises public authorities clearly that they:

[W]ill need to build gender equality considerations into the procurement process, to ensure that all the public authority's functions meet the requirements of the statutory duty, regardless of who is carrying them out.

39. The Guidance does not recommend that contracts should routinely include an obligation, for example, to comply with the HRA as though the supplier were a public authority. It reasons that these clauses would be "likely to be resisted". Nor does it identify any useful standard or model contract terms. It explains:

[S]ince the HRA deals with a number of concepts whose application in particular circumstances could be a matter of legitimately differing views, suppliers may object that they cannot fully ascertain the nature of the obligations that they are being asked to undertake.

40. The Guidance explains that this uncertainty would be likely to result in higher bid costs and might lead to an increased unwillingness on the part of suppliers to bid for public service contracts, "since suppliers might feel unable to price risk".

41. The Government, in the Guidance, advises that the "most fruitful" way for public authorities to proceed when "attempting to contract to secure the protection of human rights for service users" is by the specification of services and outcomes which are most likely to protect service users' rights. This means identifying the human rights implications of any contract and the services that would need to be specified, including any "output specifications", in order best to secure the protection of the relevant rights. Although the Guidance argues that "it is critical to get the specification right", it acknowledges that detailed specifications will vary from contract to contract according to the service being provided and according to the willingness of the contractor to accept a particular degree of detail. It provides no examples of types of contract specification, or how a contract specification might practically be used to secure human rights protection.

42. The Guidance adds, "where a significant degree of certainty is provided to suppliers as to the scope of their obligation, they may be more willing to accept some residual contractual powers of direction from public authorities in 'grey areas' at the margins." It does not explain what these 'grey areas' are, but indicates that if public authorities are able to secure residual powers of direction in their contracts, a public authority's ability to "ensure that service delivery reflects the public authority's view as to what is necessary to secure compliance with the HRA will be increased." The Guidance does not give examples of how local authorities might use powers of direction to secure the protection of human rights.

43. As part of the Government's specification-based approach, local authorities are advised to develop a pre-tender "checklist and sign-off" procedure to consider whether the delivery of a particular service is likely to engage the HRA, what steps are needed to ensure that the relevant rights are respected and to identify contract monitoring and enforcement mechanisms that are likely to be necessary. No model process is recommended and no guidance is given on how to identify whether a particular service is likely to engage the HRA.

44. The Guidance does not explain that it was the intention of Parliament that any body performing a "public function" should themselves be subject to the duties and obligations of the HRA. Nor does the Guidance explain when and how the HRA may be relevant to a specific contract. Instead, it explains that "providing a service in a manner which" takes account of the HRA will "assist in the provision of an optimised service". It does not however provide any concrete examples of the service delivery benefits of securing human rights protection through contracts.

45. We are concerned that the Guidance on contracting for services in the light of the HRA takes a very negative approach to the difficulties facing the use of contracts to secure better the protection of human rights. It appears to have been drafted very much from the perspective of securing maximum flexibility for public procurement, by securing the best price or by ensuring that providers, including small and medium sized businesses, stay in the public services market. This approach dissuades procurement officers from taking a positive approach to the protection of human rights.

46. Furthermore, we are concerned that the Guidance suggests that HRA obligations required of contractors are dependent on the willingness of the contractor to accept a particular degree of detail, that no model process is recommended and that no guidance is given on how to identify whether a particular service is likely to engage the HRA.

47. Service providers and their representatives told us that the Guidance represents a "satisfactory approach".[40] However, a significant number of witnesses consider that there are major problems with the Guidance.[41] It was criticised as inaccessible and under-publicised, difficult to understand, and unable to meet the concerns raised by the first MPA Report, principally on enforceability by third parties and consistency. Some witnesses were concerned that the Guidance had not fed into other procurement and contracting guidance. The British Institute of Human Rights ("BIHR") concluded that the Guidance could not "protect the human rights of service users in any meaningful way".[42]

ACCESSIBILITY AND PUBLICITY

48. We consider the Guidance to be badly written, difficult to follow, and to have suffered from a lack of publicity. BIHR told us that although the Guidance is published on the DCA and DCLG websites, it was "not otherwise proactively publicised".[43] We note that the principal means of distributing the Guidance remains through the DCLG website.[44] The Charities Commission is concerned that the guidance is designed primarily for "public authorities" without any clear expression of view on whether a court will consider a relevant service provider a functional public authority. They note that the Guidance "assumes knowledge of the Human Rights Act and is written in quite complex language".[45] This clearly casts doubt on the usefulness of the document from the perspective of service providers seeking to understand the priorities of those commissioning services.

49. We are concerned that the Guidance prepared by the Government on contracting and the HRA lacks accessibility and is difficult to understand. The Guidance is written in highly technical language. It is hard to find, hard to follow and does not give any practical examples of how purchasing authorities can engage with contractors to protect human rights.

50. There is little qualitative or quantitative evidence available on the awareness of this Guidance and its application by "pure" public authorities. A number of witnesses indicated that in their experience awareness of the Guidance was rare, even among local authority legal staff.[46] For example, the BIHR told us that:

51. This view is supported by Help the Aged, who undertook an informal survey of senior staff in six local authorities for the purpose of this inquiry:

52. In those two cases, the clauses concerned would not have operated to extend the application of the HRA to the service providers, nor did they follow the approach suggested by the Guidance. This suggests that even commissioning authorities are unaware of the Guidance, or that the Guidance has had very little impact upon local authority practice.

53. The Guidance on contracting and human rights is now over a year old. It does not appear that there are any mechanisms in place to monitor whether the Guidance has any impact on procurement practice. We are concerned that early indications show that local authorities are generally unaware of the Guidance and that the Guidance has had little or no influence on their procurement policy.

EFFECTIVENESS OF THE GUIDANCE

54. A number of witnesses doubted the ability of the Guidance to provide a valuable "stop-gap" measure for the protection of human rights through individual contracts, as envisaged by the first MPA Report. JUSTICE told us that they consider the specification-based approach of the guidance "questionable":

[W]hen looked at closely, the guidance seems to us to provide little practical guidance to public bodies other than eschewing 'conceptual' provisions in favour of those which specify particular steps, procedures to be taken by private providers, and the possible use of output measurements. In and of themselves, recommendations of signing off procedures and checklists seem sensible instances of good practice. However, this emphasis on greater specificity seems only to beg our earlier question: if private providers fear public liability, why is it reasonable to believe that they will be more prepared to assume the same obligations (e.g. towards individual recipients of community care) by way of private agreement?[

55. BIHR told us that a contract specification was incompatible with the effective protection of human rights and the creation of a positive human rights based approach within individual service providers:

56. Although, for reasons we explain below, we do not think that human rights can be effectively protected through the use of contractual terms, we consider that, in principle, advice on check-lists and procedures to ensure that human rights are considered during the tender and procurement process could help those responsible for commissioning services to take their duties under the HRA seriously. Unfortunately, as drafted, we consider that the ODPM guidance does not give clear guidance to commissioning authorities on how to identify when human rights are relevant, or how to design contract specifications to meet human rights needs. Whilst a specification based approach could secure some protection for human rights, it is unlikely to have any impact without clear and practical guidance on the types of specification that may be valuable. The principal failing of this approach is the lack of encouragement to greater consistency in public service procurement. Without the use of model, or standard, contract terms, we consider that any Guidance on contracting will not produce a more consistent approach to public services commissioning and human rights.

PROCUREMENT AND HUMAN RIGHTS: AN INTEGRATED APPROACH?

57. References to the Guidance and to human rights in general have notably been omitted in other Government documents on public services and procurement. For example, BIHR notes that there is no mention of the Guidance in the Care Services Improvement Partnership Guide to Fairer Contracting, for local authorities and joint commissioning bodies on care placements and care services.[51] The Charities Commission referred us to the written Compact between Government and the voluntary sector on procurement.[52] The Compact Code of Practice on Funding and Procurement makes no reference to this issue, to the ODPM Guidance or to human rights. We note that there is no reference to public procurement and Human Rights in the new "handbook" for Public Authorities, Human Rights, Human Lives, nor is there any cross reference to the DCLG Guidance.[53] There is no reference to human rights in the Treasury vision for public procurement Transforming Public Procurement,[54] or in the Guidance Note on Social Issues in purchasing, issued by the Office of Government Commerce.[55] Similarly, there is no reference to human rights or the implications of the judgment in Leonard Cheshire in the recent Government Action Plan for Third Sector Involvement in Public Services, Partnership in Public Services, which aims to simplify processes which apply to the commissioning and procurement of services from the voluntary and not-for-profit sectors.[56] We note that a proposed model contract developed by the Department of Health's Third Sector Commissioning Task Force, which proposes a standard model for use across health and social care commissioning,does not refer to the ODPM Guidance, to human rights or the responsibilities of the contracting parties under the HRA.[57]

58. We are concerned that major Government initiatives on human rights and on procurement for the provision of public services continue without reference to the implications of the HRA for private sector bodies performing public functions. We do not consider that any Guidance on contracting for public services and human rights can have any significant positive impact on the protection of human rights if it is not mainstreamed.

CONCLUSIONS

59. We consider that, as drafted, it is highly unlikely that the Guidance issued by the Government will enhance the protection offered to the human rights of service users when public services are contracted out. We are disappointed that the Guidance fails to grapple with the issue of standard or model contract terms. We recognise that the Guidance tries to balance the public interest in securing best value services and ensuring, in accordance with the intention of Parliament, that those providing public services under contract respect the Convention rights of service users. Unfortunately, the Guidance appears to be based on the assumption that the public interest is principally served by ensuring that service providers remain willing to contract at a competitive price, with any agreed measures for the protection of human rights being an additional bonus. We consider that without further significant joint efforts on the part of the Department for Constitutional Affairs and the Department for Communities and Local Government, this Guidance will continue to fail to have any significant impact on the protection of human rights.

60. In a recent debate on the Government's Common Values, Common Sense campaign for the HRA, the Parliamentary Under-Secretary of State for Constitutional Affairs, Vera Baird MP, told the House of Commons that the Government recognised that the protection of human rights through contract was a "poor substitute" for the direct application of the HRA to functional public authorities, as intended by Parliament. However, she stressed that the Government consider that there is "little doubt" that human rights can be enforced in this way.[58] We reiterate the conclusions of the first MPA report. Human rights cannot be fully and effectively protected through the use of contractual terms. While Guidance may be useful as a "stop-gap" to reduce the adverse impact of the narrow interpretation of the meaning of public authority on service recipients, this Guidance cannot be a substitute for the direct application of the HRA to service providers. In any event such Guidance cannot provide any valuable protection to service users if it is not based on a clear commitment to mainstreaming human rights, written in accessible language and accompanied by practical guidance to commissioning authorities.

61. We consider the potential for further Government guidance on procurement to alleviate the practical implications of the current gap in the law, in Chapter 4, below.

16 First MPA Report, paras 14 - 17. Back

17 ibid, paras 18-20. Back

18 [2002] EWCA Civ 366. This case involved the challenge by residents of the closure of a private care home run by a charitable organisation. The Court of Appeal held that the organisation, Leonard Cheshire, was not sufficiently "ensmeshed" in the activities of the Local Authority commissioning its services to be considered a public authority for the purposes of the HRA. A further summary of this case and the relevant legal background is provided in the First MPA Report, paras 31 - 33 and 39 - 40. Back

19 First MPA Report, paras 39 - 40. Back

20 [2003] 3 WLR 283. In this case, the Court held that a parochial church council was not a "pure" public authority. Back

21 We adopt the conclusion of our predecessor Committee. First MPA Report, para 42. Back

22 ibid, para 41. Back

23 ibid, paras 78 - 85. Back

24 See for example, Appendix 9 (Help the Aged), paras 11 - 12; Appendix 2 (Mayor of London), paras 2 - 3; Appendix 6 (Baroness Greengross). Back

25 Appendix 9, para 12. Back

26 First MPA Report, paras 110 - 134 (Sections 6 - 7). Back

27 ibid, para 133. Back