Session 2006-07, 23 November 2006
MEANING OF "PUBLIC AUTHORITY" UNDER THE HUMAN RIGHTS ACT
The Joint Committee on Human Rights (JCHR) intends to conduct a short inquiry into the meaning of "public authority" under the Human Rights Act, in light of the continuing trend towards the outsourcing of public services and the failure so far of other strategies to fill the gap in human rights protection which has been caused by the judicial interpretation of the phrase. It will follow up the work of the previous JCHR, which reported on this subject in its Seventh Report of Session 2003-04, The Meaning of Public Authority under the Human Rights Act, HL Paper 39/HC 382. The Committee intends to consider the matter on the basis of written evidence alone, without taking oral evidence.
The previous JCHR's report
Under section 6(1) of the Human Rights Act 1998 it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Under section 6(3)(b) the definition of "public authority" includes "any person certain of whose functions are functions of a public nature". In its Report the previous JCHR noted that ministerial statements during the passage of the Human Rights Bill indicated that the purpose of the section 6(3)(b) test was to make the Act comprehensive rather than restrictive in its application. It also noted that case-law in which the definition of public authority was at issue had left some uncertainty as to whether a range of private bodies undertaking public functions would fall within that definition. Of particular significance was the case of R (on the application of Heather and others) v Leonard Cheshire Foundation, where local authority funded residents of a care home wished to challenge a decision to close the home and disperse residents elsewhere. The Court of Appeal held that s.6(3)(b) did not apply to the managers of the care home, though it did suggest that contractual arrangements between a delegating public authority and a private service provider could include requirements to comply with Convention rights, and also considered that the local authority retained its obligation to the residents under Article 8 ECHR, regardless of the delegation to the Leonard Cheshire Foundation.
In its Report the previous JCHR concluded that the development of case-law on the meaning of public authority led to real gaps and inadequacies in human rights protection in the UK, including gaps that affect people who are particularly vulnerable to ill-treatment. The Committee considered various potential solutions to this problem.
Amongst other things, the Committee recommended that the Government develop guidance for public authorities on the protection of human rights through contracts with private service providers. It also called for the Government to intervene in the public interest as a third party in cases where it could press for a broad, functional interpretation of the meaning of public authority under the Human Rights Act. The Committee set out its own interpretation of the meanings of public authority and public function. The Committee also considered various possible ways of amending the HRA to address the matter, but did not recommend any of them be taken up.
Some developments since
On 3 November 2005 the Government published guidance to local authorities on contracting for services in the light of the Human Rights Act (available on the Department for Communities and Local Government website): www.communities.gov.uk/pub/372/GuidanceoncontractingforservicesinthelightoftheHumanRightsAct1998PDF124Kb_id1161372.pdf.
The Government has intervened unsuccessfully in the case of R (on the application of Johnson and others) v London Borough of Havering with the aim of ensuring that the meaning of "public authority" covers elderly and vulnerable people receiving care from a private provider on behalf of a public authority.
The Committee asked the Lord Chancellor about the subject during an oral evidence session on 30 October and commented on it in its 32nd Report of Session 2005-06, The Human Rights Act: the DCA and Home Office Reviews, HL Paper 278/HC 1716, pp 28-30 and Ev pp 7-9.[http://www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/278/278.pdf]. In his evidence the Lord Chancellor expressed a concern that widening the meaning of public authority might drive private providers of services such as residential care out of the market for such services and so be counter-productive.
Call for evidence
The Committee would welcome written evidence commenting on any significant developments in law, policy and practice in relation to the meaning of "public authority" since publication of the previous Committee's Report, including
the effectiveness of the Government's guidance referred to above
developments in case-law and their implications
any practical implications of the restrictive meaning given to "public authority" in addition to those identified in the previous Committee's report
whether private providers would leave the market if they were "public authorities" for the purposes of the Human Rights Act 1998
any other evidence relevant to the implications of the meaning of public authority on the protection of human rights, especially those of vulnerable people.
The Committee would also welcome views on potential means of addressing the problem, including by means of primary legislation. For those who advocate use of primary legislation it would be helpful if they could indicate in their written submission precisely how they think this would best be achieved.
The Committee would welcome written evidence from interested individuals or organisations on any of these matters, to reach the Committee by 15 December 2006.
Submissions should be addressed to Nick Walker, Commons Clerk of the Joint Committee on Human Rights, Committee Office, House of Commons, 7 Millbank, London SW1P 3JA. Electronic submission is acceptable, but a signed hard copy should also be sent. In any event, witnesses are asked wherever possible to accompany hard copy by an electronic version, preferably in Word format, and e-mailed to [email protected]
Evidence becomes the property of the Committee, and may be printed, placed on the Internet or circulated by the Committee at any stage. You may publicise or publish your evidence yourself, but in doing so you must indicate that it was prepared for the Committee. Evidence published other than under the authority of the Committee does not attract parliamentary privilege.