Joint Committee On Human Rights Written Evidence


3  The case for further action

62. In this section, we review the practical implications of the meaning of "public authority" in the HRA and the concerns of service providers and users, in addition to those identified by the first MPA Report. Specifically, we consider whether service providers' concerns are likely to lead to an exodus of private providers from the public services market and whether the failure to address this issue has any wider implications for the creation of a positive human rights culture in the UK. In this context we assess the strength and urgency of the case for further change.

The "Private Sector" and Public Services

63. We stress that we do not endorse any particular policy view on the involvement of the private sector (including both commercial and not-for profit bodies) in the provision of public services.[59] As our predecessor Committee highlighted, it is not reliance on the private or voluntary sector that risks undermining the human rights protection offered by the HRA, but the failure of the law, as interpreted by the courts, to adapt to the reality of the involvement of those sectors in public service delivery.[60]

64. A number of witnesses highlighted the growth of private sector involvement in public service provision and the performance of public functions since the publication of the first MPA Report. For example, Liberty told us that expanded private sector involvement has been "particularly visible" in the context of law and order and anti-social behaviour functions.[61] Similarly, the Commission for Racial Equality ("CRE") highlighted the involvement of the private sector in prisons, the detention of asylum seekers and private hospitals.[62]

65. In our work on the scrutiny of legislation, we regularly find it necessary to raise with the Government the question of whether a private or voluntary sector body is considered by the Government to be a public authority for the purposes of the HRA.[63] We recently raised the question, for example, in the context of our scrutiny of the Offender Management Bill, currently before Parliament, which proposes to contract out many functions previously performed by the probation service.[64] In the course of our Report on that Bill we expressed our serious concern that the Government could not advise Parliament with any degree of certainty on the likely effect of legislation which provided for delegation of public functions or contracting-out of public services, but could only provide "expressions of hope" that its statements on status might assist the courts.[65]

66. We find it increasingly unsatisfactory to rely on the Government's view of whether a particular body is a "public authority" when there is a real risk that their views will not be reflected in the decisions of the courts. We consider that, in the preparation of legislation that provides for the delegation of public functions, or contracting-out of public services, the Government should be prepared to acknowledge that the position in law is currently uncertain. This uncertainty should inform parliamentary debate on whether delegation or contracting out is an appropriate means of dealing with the provision of the relevant services, and whether it is desirable to make it clear on the face of a Bill that a body is a public authority for the purposes of the HRA. While this uncertainty continues, we will continue to scrutinize closely the Government's assessment of the law and the human rights implications of any legislative provision for contracting-out. We will consider on a case by case basis whether to draw the attention of both Houses to any significant risk that the Convention rights of vulnerable people may be endangered as a result of the use of private providers to discharge public functions.

Continuing uncertainty for service providers and service users

67. Both service users and private providers continue to be disadvantaged by the uncertainty the current position creates about the status of individual service providers for HRA purposes. The Charity Commission continues to call for clear guidance to be issued on this issue for those in the charity and voluntary sector delivering services under arrangements with "pure" public authorities to help them to understand their responsibilities and the legal duties on the commissioning authority.[66] Lack of certainty for both providers and recipients of public services - created by the case law and identified by the first MPA Report - continues to lead to significant difficulties. It is unacceptable that service providers and commissioning authorities should continue to enter into contracts for the provision of essential public services without any clarity as to the legal position of the service provider under the HRA.

68. Uncertainty about the application of the law has a detrimental effect on the development of a positive human rights culture where respect for individual rights plays a fundamental role in the delivery of public services. Advocates for vulnerable people may be discouraged from raising human rights based concerns or arguments with any body other than a "pure" functional authority as a result of confusion over the proper application of the HRA. BIHR told us that in their experience, training individuals and organisations about the application of the Act was, under the current case law, "extremely challenging". They explained that a lack of confidence in their legal status affected service providers as well as service users:

    [A]dvocates who assist potential victims are unable to raise Convention rights issues with any confidence when negotiating on behalf of their clients. In addition where a body is unsure whether or not the Human Rights Act applies to it at all, it is more likely to ignore or resist any arguments based on human rights. As a result, vulnerable…individuals have not benefited from the protection which the Human Rights Act was intended to offer, and the agenda to foster a human rights culture has been severely frustrated.[67]

69. It is almost a decade since the passage of the HRA. We are seriously concerned that even now, the proper scope of its application remains unclear. We believe this ongoing uncertainty has a "chilling" effect and inhibits the development of a proactive approach to the mainstreaming of human rights standards in policy development and service delivery. It is unacceptable that providers of public services should remain uncertain about the scope of their responsibilities and obligations under the HRA, and that the HRA obligations required of contractors should be dependent on the willingness of a contractor to accept a particular degree of detail. We are deeply concerned that service users and their advocates may be inhibited in their use of human rights arguments in their dealing with private and other providers as a result of the continuing uncertainty in the law.

Impact on Service Users

70. In our call for evidence, we specifically asked for updated evidence of the impact of the narrow interpretation of the meaning of public authority on vulnerable people. Our predecessor Committee highlighted the public service areas most likely to be affected and the relevant human rights standards likely to be engaged.[68]

71. Given the increasing use of delegated powers and contracting-out, the restricted ambit of the Act is most likely to have an impact in social housing, healthcare provision to the elderly and to mental healthcare provision and children's services.[69]

72. We also note that there is an increasing trend towards the provision of detention and other compulsory powers, usually reserved for "pure" public authorities, to those providing services under contract. For example, in immigration removal centres and in private prisons. Parliament has been repeatedly assured by the Government that it is their view that bodies exercising such compulsory powers would, in their view, be considered public authorities for the purposes of the HRA. We consider that, on the state of the current law, that it is unlikely that these service providers would not be considered public bodies for the purposes of the HRA. However, the status of these individual bodies, and the nature of their powers, are still to be assessed by the Courts. This will take place on a case by case basis. In the light of developments in the case-law on the meaning of public authority, we are not reassured by the Government's confidence that the Courts would treat bodies exercising compulsory powers automatically as public authorities. We would be deeply concerned if any organisation exercising compulsory powers, such as powers of detention or powers involving the use of force, were not considered subject to the s.6 duty to act in Convention compatible way.

73. It is clear that the provision of services in all of these areas regularly engages rights under Article 8 ECHR, including rights to respect for private life and home; the right to a fair hearing in the determination of civil rights and obligations under Article 6(1) ECHR; freedom from discrimination in the enjoyment of Convention rights under Article 14 ECHR and, in extreme cases, the right to freedom from inhuman and degrading treatment under Article 3. In some areas, the right to life (Article 2 ECHR), the right to liberty (Article 5 ECHR) and the right to the peaceful enjoyment of possessions (Article 1, Protocol 1 ECHR) may also be engaged. Our predecessors identified disparities and anomalies arising from the application of the case law in some sectors and stressed the vulnerability of the recipients of public services to breaches of Convention rights.[70]

74. We are concerned that these disparities appear to continue unchecked and may have a significant practical impact.[71] For many seeking to access public services, there will be no realistic alternative but to access those services through a private sector operator.[72] For example, ECCA told us that the "vast majority" of care homes are in the independent sector.[73] It is extremely unlikely that a recipient of services will be able to resist the transfer of a service from public to private provision based on arguments about the uncertainty of the application of the HRA to the private sector.

75. We agree with the assessment of the BIHR that the present situation sends a negative signal to front line providers about their crucial role in stimulating a culture in which human rights considerations are considered proactively rather than reactively.[74]

76. To raise a Convention complaint, a user of privately provided public services will need to incur the expense and anxiety involved in seeking legal advice about the status of his or her service provider. They will need to be prepared to pursue long and complex legal proceedings with a significant chance of failure. Against this background it is unsurprising that so few relevant legal challenges have arisen since the first MPA Report. The unfortunate question for many service users must be whether human rights are really worth the time, effort and expense involved in the process dictated by the current case-law on s.6(3)(b) HRA. This is entirely at odds with one of the intended aims of the HRA, to remove human rights from the province of lawyers and the courtroom and embed human rights principles in everyday service delivery. The current test adopted by the Court of Appeal means that in the case of most private providers, service users must invest significant time and effort to secure their Convention rights, with no guarantee of success. This is unrealistic in sectors that serve some of the most vulnerable persons in our society: the very young, the very old and those who lack mental capacity. This narrow approach seriously undermines the intention of Government - and, we believe, Parliament - that the HRA should provide an "ethical bottom line" for public authorities and should offer a framework for the resolution of problems and the improvement in the quality of services without resort to legal action.[75]

77. The majority of cases that have been considered by the courts, including Leonard Cheshire, have involved residential care homes. A significant number of our witnesses referred to the problems faced by those in residential care and how those problems might be compounded if residents were unable to rely directly upon the provisions of the Human Rights Act for the protection of their rights. [76]

78. Given the extreme vulnerability of residents in a care home, the potential for abuse and violation of their Convention rights is particularly acute.[77] For example, Age Concern told us that the imbalance of power between residents in residential care and providers "means that people who have a grievance or complaint are unlikely to pursue it for fear of losing their home".[78] Recent research shows that 62% of all care home residents are cognitively impaired.[79] Help the Aged told us that many people entering residential care homes, particularly those with dementia are unable to consent but do not resist care. They consider that there is a disparity between the detention of patients in private hospitals under the Mental Health Act 1983 - who benefit from the automatic application of the HRA - and the treatment of older persons with dementia in a private residential home - who would not.[80] They question this distinction:

    [T]he practical reality is that there is something more akin to a continuum from statutory compulsion at one end of the scale to a resident who makes a free and informed choice at the other.

79. This vulnerability highlights the need for an easily understood and accessible framework for the protection of human rights, where the principal responsibility for the protection of Convention rights is on the provider, not the user.

80. A resident in a care setting who is concerned about abuse, a breach of his or her dignity or a breach of the ECHR faces a number of challenges. First, the resident or their family must be capable of making a complaint to their service provider, the CSCI or the relevant local authority. Under the current law, it is difficult for both residents and the relevant public bodies to identify who, if anyone, should take responsibility for a complaint based upon the Convention. As Help the Aged told us:

    A recurrent problem that we come across in our contact with care home residents and their families is the lack of any effective remedy. There is no clear or accessible mechanism for raising issues of concern, including potential interference with Convention rights. Notwithstanding the requirement for local authorities to keep care plans under review, one of the impacts of resource and staffing pressures is that home residents have minimal contact with social work professionals once they are accommodated…contact with the authority currently charged with the protection of rights is minimal or non-existent.

    Typically, a resident or family member who makes a complaint to the care home has effectively nowhere to go if that complaint is not resolved at the level of the home. There are instances where a complaint can lead to the eviction of a care home resident so the implication can be very serious indeed. The majority of cases we come across then attempt to complain to the regulator, the Commission for Social Care and Inspection ("CSCI"). A complaint to CSCI may trigger an inspection of the home, but the complaint itself will not be investigated; CSCI refers complaints to the local authority.[81]

81. It is extremely uncertain, as our predecessors explained, whether a local authority will remain liable in domestic law for the actions of a contractor that lead to a breach of Convention rights.[82] The cumulative effect is that even a resident who is capable of making a complaint that their Convention rights have been breached is likely to be without an effective remedy in domestic law. This gives rise to a significant risk of incompatibility with Article 13 ECHR, which guarantees access to an effective remedy for violations of Convention rights. For the service user, it means that only the European Court of Human Rights may be able to properly determine their complaint. We believe this is entirely at odds with the aim of the HRA to "bring rights home".

82. We note that the BIHR believes that many voluntary and private sector providers take seriously their commitments to their clients and seek to apply human rights standards irrespective of whether or not they are considered a "public authority" for the purposes of the HRA.[83] However, we consider that the implications of the current gap in human rights protection, both for individual service users and for the development of an embedded human rights culture across both local authority and private providers of public services, are too serious to leave entirely to the discretion of individual service providers.

83. We consider that the practical implications of the current case law on the meaning of public authority are such that some service users are deprived of a right to an effective remedy for any violation of their Convention rights, with a significant risk of incompatibility with the United Kingdom's responsibilities under Article 1 and Article 13 ECHR. We consider that the practical implications of the current case law for vulnerable service users are particularly stark. In the absence of any compelling evidence that the public services market would be undermined by the application of the HRA, we consider there is an urgent need for action to ensure that the HRA is applied as in our view it was intended by Parliament.

Concerns of service providers: leaving the market

84. Service providers and their representatives told us that there was no need for "reform" or "extension" of the meaning of public authority.[84] Their support for the status quo was supported in some cases by claims that identification of private service providers as public authorities could force providers to leave the market for public services.[85] The Government supported this point of view in their evidence to our recent inquiry on the DCA and Home Office Reviews of the HRA and in the evidence of the Department for Communities and Local Government ("DCLG").[86] For example, DCLG have told us that they are concerned about any increase in the administrative burdens placed on Registered Social Landlords. They consider that any such burdens would "be likely to have an effect upon the availability of affordable housing for some of the most disadvantaged in society". The application of the HRA to social housing providers would create a disincentive for other private housing providers to enter the social sector.[87]

85. In the light of the Government's concerns, we specifically asked for evidence on the likelihood that service providers would leave the market if they were required to comply with the s.6 HRA duty to act in a manner compatible with Convention rights.

86. A number of reasons were identified as justification for the likelihood of market flight, including the risk of increased litigation, increased administrative burdens and the risk that providers with a particular religious ethos might be required to act in a manner incompatible with their beliefs and their freedoms guaranteed by Article 9 ECHR.[88] Some of these concerns are considered below.

87. The DCLG consider that the risk of litigation under the HRA may deter providers from remaining in the public service market.[89] However, there have been relatively few cases against "pure" public authorities in the context of the provision of services based on the HRA since it came into force.[90] There have been very few cases involving local authority care homes.[91] It is likely that many private providers responsible for the delivery of public services which engage Convention rights will already be subject to significant and close regulation and a significant risk of litigation or rebuke as a result of a failure to comply with relevant regulatory standards. For example, care home providers will be subject to the provisions of the Care Standards Act 2000 and the inspection powers of the Commission for Social Care and Inspection. ECCA and others suggest that good quality service providers will, without the express application of the HRA, operate in a way that effectively protects the Convention rights of service users.[92]

88. We are aware that threats to leave the market have followed a number of regulatory and consumer protection measures in other sectors.[93] On the other hand, we heard from the Mayor of London that the implementation of their recent Group Sustainable Procurement Policy and the use of equality standards by Transport for London as contract conditions have not led to a significant flight of private providers from the market.[94] It also appears that there has been no significant decline in those sectors where "functional" public authority status clearly applies to private providers, for example, independent hospital care (following the decision of Partnerships in Care).[95]

89. We accept that some smaller businesses or organisations may be concerned about the application of additional "administrative burdens"[96] and some religious bodies may refuse to provide services as a matter of principle.[97] It is however significant that none of the major service providers who gave evidence to this inquiry told us that they themselves would definitely be forced to leave the market if the HRA applied directly to them. We note that the National Care Forum, which represents not for profit residential care providers (their membership includes most of the large scale voluntary sector providers) believe that although a small number of private providers might leave the market if they were subject to the application of the HRA, "there would be no significant impact in care home provision and … the number of beds lost as a result would be negligible." They consider that the ECHR would provide a "useful baseline for ensuring that residents are treated with dignity and respect".[98]

90. A number of additional concerns were raised by service providers which were considered by the first MPA Report.[99] We consider two of these concerns below: whether application of the HRA is necessary and whether application of the HRA to private providers will be unlawful, as it will prevent individual businesses or organisations relying upon their own ECHR rights.

APPLICATION OF THE HRA IS "UNNECESSARY"

91. ECCA told us that there were two reasons that the application of the HRA to private care homes was unnecessary. First, adequate regulation in their sector meant that the rights guaranteed by the Convention were already protected. Secondly, residents and their relatives were not aware of the HRA and were not interested in human rights, but "quality of care" and cost.[100]

92. ECCA told us that "the principles enshrined in the European Convention (fairness, respect, equality and dignity) and the objectives of the Human Rights Act are complied with and delivered in adhering to the National Minimum Standards", which are applied by the Commission for Social Care Inspection ("CSCI") in their inspections.[101] The Government recently expressed a similar view.[102] This is at odds with the evidence of the CSCI that they themselves would welcome the extension of the provisions of the HRA to independent sector providers. They explain:

    Whilst the Commission's inspection work can go a considerable way in ensuring that people who use social care services are afforded dignity, respect and privacy, we are aware that the "Leonard Cheshire" judgment places some restrictions on the ability of CSCI to apply HRA principles in the majority of services that we regulate.[103]

93. ECCA consider that the real issue is "not about human rights, but about "tackling equality of access and quality in care". They explain:

    It is not our belief that residents, nor relatives, will be given more confidence in the system by extending the Human Rights Act. It is our opinion that the Human Rights Act is little understood and I have no evidence that it is a great concern for the majority of residents or their carers.[104]

94. We accept that in a number of areas the protection offered by existing regulatory frameworks may provide some protection for human rights. However, without the application of the HRA, the protection offered to the Convention rights of public service users in the independent sector will continue to be a diminished version of that offered to service users using services provided directly by State bodies. This may lead to a significant risk of incompatibility with Articles 1 and 13 ECHR, which require the United Kingdom to secure the Convention rights of every person within its jurisdiction and to provide access to an effective remedy for any breach. We note that ECCA consider that many residents are not aware of their Convention rights and the benefits of the HRA. We consider this unsurprising given the current judicial interpretation of the law. As the law stands, the HRA has no immediate relevance to residents in the independent sector, or their relatives. Similarly, until aware of the implications of the ECHR for their daily lives, individual service users may not be aware that the protection of their rights may overlap significantly with "quality of care" issues. We welcome the helpful examples provided by BIHR, and others, of the practical benefits which the application of the HRA may give to service users and advocates arguing for better service standards on the ground once they have been trained in the use of human rights dialogue.[105]

95. In their Report, Rights for Real, Age Concern conclude that "when exposed to the themes of the HRA, people could see ways in which it might help them, their family or their friends. However, prior to being exposed to the HRA, the tenor of the discussion had been very hostile to 'human rights'".[106] We do not accept the argument that application of the HRA to the delivery of public services by the private sector would add little to the protection of human rights of vulnerable service users. On the contrary, we consider that the direct application of the HRA to private service providers would improve the protection of the human rights of service users by placing a direct duty on such service providers to act in a Convention compatible way. While regulatory and inspection regimes clearly play a very important role in ensuring the rights of service users and the quality of public services, they cannot be treated as a substitute for directly enforceable Convention rights under Sections 6 and 7 of the HRA.

96. The benefits of the application of the HRA to the public services sector are not limited to service users.[107] In their review of the HRA, the DCA acknowledged that the operation of the HRA had a beneficial impact on policy and decision-making.[108] In a similar sense, we consider that the application of the HRA to functional public authorities could lead to positive benefits for service providers in relation to the efficiency and effectiveness of their operating and decision making processes.[109]

97. We are concerned that service providers are unaware of the operational benefits offered by adherence to Convention rights. A significant proportion of the evidence that we received on this issue from service providers and their representatives focused on the perceived administrative burdens and the risk associated with the application of the HRA to their activities. We are also concerned that the Government's recent change in approach to this issue has encouraged these fears in the private sector.

THE CONVENTION RIGHTS OF SERVICE PROVIDERS

98. In Aston Cantlow, the courts considered the question of how the application of the HRA to private service providers would affect the ECHR rights of private service providers themselves.[110] Similar concerns have been raised on behalf of service providers and their representatives and, particularly, by service providers who provide services on behalf of religious organisations. For example, the Archbishops Council argue that:

    [T]o the extent that a private body was treated as a public authority under the Human Rights Act, it would not be a 'victim' for the purposes of the Act and would therefore not be entitled to the protection of the Convention articles itself. This would be a highly unsatisfactory situation. It would, for example, put in doubt a charity's right to bring a claim to secure the peaceful enjoyment of its property under Article 1 of the First Protocol in the event of a threatened compulsory purchase…And a religious charity, to the extent that it was treated as a public authority, would not have the right to freedom of religion under Article 9, Article 14 rights protecting it from discrimination on the ground of religion in the enjoyment of its Convention rights more generally.[111]

99. We do not consider that these arguments carry much weight. First, it is unlikely that domestic courts would prevent "functional" public authorities" from relying upon their Convention rights. In Aston Cantlow, for example, Lord Hope indicated that "pure" public authorities might be considered "governmental organisations" with no standing in international law to bring a case under the Convention in the European Court of Human Rights at Strasbourg.[112] Lord Nicholls also stressed that "functional public authorities" would not be deprived of their rights to rely upon their Convention rights.[113] Importantly, both Lord Nicholls and Lord Hope clearly recognised that the meaning of "non-governmental" or "governmental" body for the purposes of bringing a claim under the ECHR (i.e. the victim test in Article 34 ECHR) has its own autonomous meaning and should not be equated with the test for a "public authority" of either type, "pure" or "functional".[114]

100. Second, identification in domestic law as a "public authority" for the purposes of the HRA (or any other domestic public law purpose) will not necessarily prevent the relevant provider from being capable of consideration as a "victim" for the purposes of bringing a claim under the ECHR (or under s6 - 7 of the HRA). The first "test" is a statutory one laid down by Parliament to determine the scope of application of the HRA, a domestic statute designed to ensure that the United Kingdom complies with its obligations in Article 1 and Article 13 ECHR. The second "victim" test is a test primarily based in international law to determine the breadth of a right of individual petition accepted by the State. This distinction is clearly recognised by the analysis of Lord Hope in Aston Cantlow, where he compares the position in the German Constitution, which provides that individuals should have a right of action against any public authority, including either of the two main churches, where their rights are violated by that public authority. Lord Hope notes that these churches remain "non-governmental organisations", capable of relying on their own Convention rights despite their public status in domestic law and compares them to "functional public authorities" for the purposes of the HRA.[115] The two tests have different purposes, are not mutually exclusive and both should be given a broad and purposive reading.

101. We received a significant amount of evidence based upon the implications for the Convention rights of service providers under Article 9 ECHR and Article 14 ECHR. We have recently reported on the implications of the Sexual Orientation Regulations for service provision in light of the right to manifest a religious belief.[116] These matters are of relevance for public policy in the light of the increasing interest in delivery of services by faith-based voluntary organisations. We re-iterate that the right to manifest a religious belief- in contrast with the freedom of conscience to hold a religious belief - is not absolute, and must be weighed against the individual rights of service users. Proportionate interferences are in principle possible to protect the rights of others. Any exemption from recognition as a functional public authority for religious providers would need to be justified as necessary to meet the more narrow right of religious organisations to freedom of conscience.

102. We note that service providers are concerned that they would be precluded from relying on their own Convention rights as functional public authorities. We consider that this concern is not well founded and should not affect any assessment of whether service providers would be motivated to leave the market should they be identified as "functional public authorities".

103. After giving it careful consideration, we find that the evidence from service providers and their representatives does not support the conclusion that a significant number of providers would leave the market if they were considered "functional" public authorities. We note that none of the service providers or their representatives told us that, should they be subject to the s.6 duty to comply with Convention rights, they would definitely leave the market.

104. Some of our witnesses argued that, even if providers do not leave the public services market, the additional burdens involved in the application of the HRA would divert resources from the provision of good quality services. The Archbishops' Council told us that the "imposition" of functional public authority status on voluntary bodies "would be likely to expose them to considerable challenge in their work, diverting resources away from the provision of vital services to those who most need them".[117] These concerns appear to treat the applicability of the HRA and the achievement of high standards as mutually exclusive. We consider that this is entirely at odds with the view expressed by the Government during the passage of the HRA and the experience of a number of NGOs that application of the HRA at the ground level can significantly improve service provision.[118]

105. We have 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. We are deeply concerned 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. General statements by Government departments on the risk posed by the application of the HRA to the provision of public services are entirely at odds with the aim of the Government's campaign to educate public authorities and the public in the benefits of the Act. We encourage the Government, in the course of their current work on the implementation of the HRA, to take steps to educate and inform all service providers about the service delivery benefits of the application of the Act, not only those which are "pure" public authorities.

The meaning of public authority: wider impact

106. A number of witnesses drew our attention to the wider impact of the interpretation of the meaning of public authority in the HRA. We consider these broader issues below. Firstly, we consider whether there may be a need for a consistent approach to the interpretation of "public authority" for the purposes of the Government's Discrimination Law Review and its use in any future Single Equality Act. Secondly, we consider the potential of the narrow interpretation of the meaning of public authority to undermine the creation of a positive human rights culture in the United Kingdom.

DISCRIMINATION LAW REVIEW

107. A number of existing anti-discrimination and equality provisions are based upon the definition of public authority used in s.6(3)(b) HRA[119]. The Discrimination Law Review is currently considering the meaning of public authority for the purposes of imposing both positive and negative duties in equalities law. The Discrimination Law Review is expected to report shortly; a Green Paper on a Single Equality Bill is expected early in 2007. The CRE noted that these provisions apply positive equality duties based on the "public function" test and that it is of great concern if a private body potentially exercising public functions and subject to a positive duty in respect of disability or gender might be unaware of its status.[120] The CRE understands that it is likely that the Discrimination Law Review, in respect of the equality duties of public authorities, will recommend a single general equality duty which will apply to all six strands of equality law. It is likely that this will mirror the test in s.6(3)(b) HRA (following the existing general disability and gender duties in the Equality Act 2006).[121] We note that this is the approach recommended by the Report of the Equalities Review.[122]

108. We consider that the timing of the Discrimination Law Review strengthens the need for urgent and clear action by the Government to reverse the narrow interpretation of "public authority" adopted by the courts in Leonard Cheshire. If Parliament is soon to be asked to consider the definition of a "functional public authority" in the context of positive duties in a new Single Equality Act, we consider that it is vital that the uncertainty surrounding the meaning of public authority for the purposes of the Human Rights Act is settled.

CREATING A "HUMAN RIGHTS CULTURE"

109. We welcome the Government's new Common Values, Common Sense campaign for the HRA and their renewed commitment, following the recent DCA and Home Office reviews, to the development of a "human rights culture" within the UK. We reiterate our view that the protection of individual human rights will be best attained by the creation of a mature, considered culture of respect for human rights within our society. By this "culture" we mean a society in which human rights principles are central not just to the design of policy and legislation but to the delivery of public services. Respect for basic concepts such as a right to respect for private life, family and the home and to freedom of religion, thought and belief should not be limited to those with access to legal advisers, but should be accessible to everyone. Human rights principles should provide an ethical framework within which all public authorities, whether "pure" or "functional", should operate.[123]

110. As we have commented above, there are many reasons why the current interpretation of the meaning of public authority undermines efforts to create a positive and enduring human rights culture within the United Kingdom. We agree with the assessment of the BIHR that the current approach compounds uncertainty for public service providers and users alike and adds to confusion about the implications of the HRA for people in their own lives.[124] We consider that the Government's campaign to educate public authorities in their responsibilities under the HRA will be of limited value if it can only direct its efforts towards "pure" public authorities. We consider that the current approach of the courts to the meaning of public authority will inhibit the development of a positive human rights culture in the United Kingdom. In so far as it prevents the direct application of the HRA to significant numbers of vulnerable people, such as the residents of privately-run care homes, this approach helps to perpetuate the myth that the HRA creates no real benefits for "ordinary people" in their day to day lives.

The case for further action: conclusions

111. There is nothing in the evidence that we have seen which diminishes our support for the need for further action to ensure that the application of the HRA extends as far as Parliament in our view intended when it passed the HRA. On the contrary, the evidence which we have seen reinforces our predecessor Committee's conclusion that the disparities in human rights protection that arise from the case law on the meaning of public authority are unjust and without basis in human rights principles.

112. The continuing adoption of a narrow, institutional approach to the meaning of public authority has created a situation where some vulnerable persons may be denied the full benefits of the HRA as a result of a decision by a local authority, or the Secretary of State, to utilise the resources of the private sector to fulfil the responsibilities which Parliament has imposed upon them. We consider that the current situation is unsatisfactory and unfair and continues to frustrate the intention of Parliament. It creates the potential for significant inconsistencies in the application of the HRA and denies the protection of the rights it guarantees to those who most need its protection. In view of the continuing trend towards the contracting out of public functions, there is now a need for urgent action to secure a solution and to reinstate the application of the HRA in accordance with Parliament's intentions when it passed the HRA.


59   As in the first MPA Report, for the purposes of this Report, we will refer to both the voluntary and not for profit sectors (or the Third Sector), taken together with commercial operators, as the "private" sector. This definition therefore includes religious organisations which provide public services. Back

60   First MPA Report, para 51. Back

61   Appendix 11, para 7. Back

62   Appendix 19, paras 3.1 - 3.4. Back

63   Thirty-second Report of Session 2005-06, op. cit., para 91. Back

64   Third Report of Session 2006-07, Legislative Scrutiny, Second Progress Report, paras 3.6 - 3.10. Back

65   ibid, para 3.10. Back

66   Appendix 22. Back

67   Appendix 17, para 14. Back

68   First MPA Report, para 66. Back

69   ibid, para 66. Back

70   ibid, paras 69 - 74. Back

71   See for example, Appendix 5, para 5.1 - 5.6 (Age Concern); Appendix 15 (DRC), Appendix 17, para 14 (BIHR). Back

72   Appendix 14, paras 6 - 7. Back

73   Appendix 3. Back

74   Appendix 17, para 5. Back

75   First MPA Report, para 48 - 49. See Appendix 17, para 14. Back

76   See for example, Appendix 5 (Age Concern), Appendix 9 (Help the Aged), Appendix 11 (Liberty), Appendix 15 (Disability Rights Commission "DRC"). Back

77   Appendix 9, paras 24 - 29 (Help the Aged); Appendix 15, pages 5 - 13 (DRC). Back

78   Appendix 5, paras 5.1- 5.3. Back

79   Appendix 9, para 17. Back

80   Appendix 9, para 16. Back

81   Appendix 9, paras 25 - 29. Back

82   First MPA Report, para 83. Back

83   See for example, Appendix 17, para 16. Back

84   See for example, MPA 1 (Evangelical Alliance); MPA 8 (Archbishops Council). Back

85   Appendix 1, page 3, Appendix 3, Appendix 7, paras 24 - 27, MPA 9. Back

86   Appendix 20; See also DCA Review of the Implementation of the HRA, July 2006, page 28. Back

87   Appendix 20, paras 9 - 12. See also para 16 - 18 (on the provision of temporary housing by the private sector) and paras 25 - 27 (on the new deal for Communities). Back

88   Appendix 1 (Evangelical Alliance). Back

89   Appendix 20, para 18. Back

90   See for example, quantitative study by Public Law Project,2003, impact of the Human Rights Act on Judicial Review, Chapter 5, http://www.publiclawproject.org.uk/downloads/HumRghts_JRRep03.pdf; and Appendix 5, para 6.1 (Age Concern). Back

91   Appendix 5, para 6.1 (Age Concern). Back

92   See for example Appendix 3. Back

93   See for example, the evidence of Legal Services Providers and their representatives on the draft Legal Services Bill (Joint Committee on the Draft Legal Services Bill Report, Volume II: Evidence HC 1154-I, HL Paper 232-I). Back

94   Appendix 2, para 7. Back

95   [2002] 1 WLR 2610. See First MPA Report, paras 34 - 35. In this case, the Court considered that a private hospital exercising powers under the Mental Health Act 1983 to detain patients, was a functional public authority. Back

96   Appendix 3, Appendix 9, para 31. Back

97   See for example, Appendix 1, Appendix 9, paras 23-24, 33, Appendix 8. Back

98   Appendix 9, para 31. Back

99   For example, MHA told us that they were concerned that identification as a "functional public authority" would compromise their independence from Government. The First MPA Report deals with this issue at paragraphs 60 - 63. Back

100   Appendix 3. Back

101   Appendix 3. Back

102   During a debate on abuse in Care Homes, Lord Hunt of Kings Heath was asked what the Government intended to do to ensure the application of the HRA to privately run care homes. He confirmed that if there were gaps in the legislation, that "needs to be looked at". However, he told the House that, more generally, in order to avoid abuse, the Government "very much rely on the Commission for Social Care Inspection inspecting standards." HL Deb, 22 February 2007, Col 1170 (Lord Hunt of King's Heath). Back

103   Appendix 13. Back

104   ibidBack

105   Appendix 17, para 5.  Back

106   Rights for Real, Age Concern England, May 2006, Annex 1. Back

107   Appendix 5 para 6.2 (Age Concern); Appendix 17, para 15 (BIHR). Back

108   DCA Review, Chapter 3. Back

109   Appendix 5, para 6.2 (Age Concern). Back

110   Aston Cantlow [2003] 3 WLR, paras 46 - 47. Back

111   Appendix 7, paras 32 - 33; See also Appendix 1 (Evangelical Alliance) and Appendix 8 (Salvation Army). Back

112   [2003] 3 WLR, para 47. Back

113   ibid, para 9 -12. Back

114   ibid, paras 12 and 51 - 52. Back

115   ibid, paras 62 - 63. Back

116   Sixth Report of Session 2006-07, Legislative Scrutiny: Sexual Orientation Regulations, HL Paper 58/HC 350, Chapter 3. Back

117   Appendix 7, para 26. Back

118   See for example, First MPA Report, para 48. Back

119   See Appendix 19, para 4.2 (CRE). For examples see section 49B Disability Discrimination Act 2005, section 76A Sex Discrimination Act 1975. Back

120   Appendix 19, para 4.2. Back

121   ibidBack

122   Fairness and Freedom: The Final Report of the Equalities Review, February 2007, pages 115-116. Back

123   First MPA Report, para 48. Back

124   Appendix 17 para 5. Back


 
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