Conclusions and recommendations
Introduction
1. 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. (Paragraph 11)
The Developing Law: Closing the Gap?
2. 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. For example, Help the Aged has called
the results of the Government's interventions thus far "deeply
disappointing". 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. (Paragraph 22)
Guidance on the meaning of public authority
3. 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. (Paragraph 27)
4. 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. (Paragraph 31)
5. 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", 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.
(Paragraph 32)
Guidance on contracting for services in the light
of the HRA
6. 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. (Paragraph
45)
7. 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. (Paragraph 46)
8. We
consider the Guidance to be badly written, difficult to follow,
and to have suffered from a lack of publicity. (Paragraph 48)
9. 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. (Paragraph 49)
10. 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. (Paragraph
53)
11. 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. (Paragraph
56)
Procurement and human rights
12. 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. (Paragraph 58)
Guidance: conclusions
13. 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. (Paragraph 59)
14. 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. (Paragraph 60)
The "Private Sector" and Public Services
15. 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. (Paragraph 66)
16. 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. (Paragraph 67)
17. 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. (Paragraph
69)
18. 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. (Paragraph
72)
19. 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. (Paragraph 76)
20. 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". (Paragraph 81)
21. 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.
(Paragraph 83)
22. 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.
(Paragraph 95)
23. 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. (Paragraph 97)
24. 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. (Paragraph
101)
25. 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". (Paragraph 102)
26. 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. (Paragraph 103)
27. 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. (Paragraph 105)
Discrimination Law Review
28. 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. (Paragraph 108)
Creating a "Human Rights Culture"
29. 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. (Paragraph 109)
30. 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. (Paragraph 110)
The case for further action: conclusions
31. 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. (Paragraph 111)
32. 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. (Paragraph 112)
Contracts: Further Guidance?
33. We
recommend that the relevant Government Departments, in particular
the Department for Constitutional Affairs and the Department for
Communities and Local Government, work together to conduct an
urgent review of the impact of the existing Guidance. We recommend
that urgent attention be given to revising the existing Guidance
to incorporate practical, accessible advice to all commissioning
bodies. (Paragraph 119)
34. We
recommend that any new Guidance is prepared in consultation with
relevant NGOs, including representatives of service providers
and service users, and the Local Government Association. It should
be accessible and should provide practical examples of how human
rights may be engaged during the delivery of public services,
how the protection of human rights during the procurement and
commissioning stages can benefit service users and service delivery
and should be accompanied by adequate training for commissioning
authorities. (Paragraph 120)
35. We
recommend that the relevant Government departments take into account
the research completed by the Office of the Third Sector on the
use of template social clauses to assist and focus their use in
contracts for public services with voluntary and not for profit
bodies. We recommend that urgent attention be given to the development
of similar template clauses for the purpose of supplementing any
future guidance on human rights and contracting for public services.
(Paragraph 122)
36. We
stress that these measures will not be an effective substitute
for the direct application of the HRA as Parliament intended and
should not be treated as such. (Paragraph 123)
Further litigation and legislative solutions
37. We
are concerned that whatever decision is reached in the House of
Lords, it is unlikely to lead to an enduring and effective solution
to the interpretative problems associated with the meaning of
public authority. Waiting for a solution to arise from the evolution
of the law in this area through judicial interpretation may mean
that uncertainty surrounding the application of the HRA will continue
for many years. It could lead to a serious risk of discrepancies
across public service delivery. We consider that this is unacceptable.
(Paragraph 127)
38. We
consider that the Department for Constitutional Affairs together
with other relevant Departments (including the Department for
Communities and Local Government, who have responsibility for
the Government's Discrimination Law Review) should now bring forward
alternative legislative solutions for consideration by Parliament
shortly after the decision of the House of Lords. (Paragraph 132)
39. We
recommend that any consultation period should be short and limited
to the format and text of legislative proposals intended to give
effect to the principles for the identification of a functional
public authority which were identified by our predecessors in
the first MPA Report. (Paragraph 133)
40. We
consider that the starting point for any debate should be the
meaning of public authority as intended by Parliament during the
passage of the HRA and as reflected in the general principles
identified by our predecessor Committee. With this in mind, we
consider that the timetable for a legislative solution must be
identified as soon as possible. (Paragraph 134)
41. most
of our witnesses who recognised that the current position in law
was unsatisfactory either recommended some form of legislative
solution, or agreed that the time for a legislative solution was
very near. In our view the time has now come to bring forward
a legislative solution. We now consider the different forms such
a solution might take. (Paragraph 136)
42. We
would strongly resist the amendment of the HRA to identify individual
types or categories of "public authority" as either
"pure" or "functional" public authorities.
(Paragraph 137)
43. We
consider that a sector-by-sector approach, taken alone, could
lead to inconsistency in the application of the HRA. There is
a risk that taking this approach might lead to the courts questioning
whether any other functions were intended to be subject to the
application of the HRA. (Paragraph 140)
44. If
the Government continues to pursue its strategy based on litigation
in the long term without a more general legislative solution in
place, we recommend that urgent consideration should be given
to the amendment of existing statutes to identify clearly that
the sectors most seriously affected by the narrow interpretation
of "public function" are subject to the application
of the HRA. This should include an amendment to clarify that private
care home providers providing care further to s26 National Assistance
Act 1948 should be considered "functional public authorities".
(Paragraph 142)
45. We
consider that unless a more general solution is achieved in the
short term, it will be necessary for any Bill which provides for
the contracting-out or delegation of public functions to identify
clearly that the body which performs those functions will be a
public authority for the purposes of the Human Rights Act. (Paragraph
143)
46. We
consider that the direct amendment of the non-exhaustive definition
of "public authority" in s. 6 of the HRA should be considered
only as a matter of last resort. However, in light of the pressing
need for a solution, we think there is a strong case for a separate,
supplementary and interpretative statute, specifically directed
to clarifying the interpretation of "functions of a public
nature" in s. 6(3)(b) HRA. This interpretative statute could
provide, for example: "For the purposes of s. 6(3)(b) of
the Human Rights Act 1998, a function of a public nature includes
a function performed pursuant to a contract or other arrangement
with a public authority which is under a duty to perform the function."
(Paragraph 150)
47. This
statute could also aid the statutory definition for any statutory
gateway based on the performance of a public function, for example,
in the Environmental Information Regulations 2004. Section 6(3)(b)
HRA clearly would need to be identified in the interpretative
statute. However, it could be left open to the Secretary of State
to designate, by affirmative resolution, other statutory references
to "public function" which would also be subject to
the interpretative provisions of the supplementary statute. We
consider that this approach would provide a solution to the problem
whilst avoiding the constitutional implications of amending the
HRA itself. (Paragraph 151)
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