28 February 2003 Session 2002-03 No. 6
Call for Evidence
nquiry into the Meaning of Public Authority under the Human Rights Act
The Joint Committee on Human Rights is conducting a short inquiry into the meaning of “public authority” under section 6 of the Human Rights Act 1998.
One of the primary means of human rights protection under the Human Rights Act 1998 is the requirement, in section 6 of the Act, that all “public authorities” comply with the human rights standards the Act incorporates. This obligation of compliance extends to private organisations when (but only when) they exercise public functions. However, recent decisions of the courts interpret section 6 so as to exclude from responsibility under the Human Rights Act many of the increasing number of private or voluntary sector organisations active in the provision of public services. This inquiry considers the possible consequences of the courts’ interpretation of “public authority” for human rights protection in the United Kingdom, and explores how human rights accountability can be assured, in the context of increased delegation to the private and voluntary sectors.
Public Authorities under section 6(3)(b) of the Human Rights Act
Under section 6 of the Human Rights Act “pure” public authorities (such as government departments, local authorities or the police) are required to comply with Convention rights in all their activities, both public and private (e.g. including employment); under section 6(3)(b), other public authorities, those which exercise some public and some private functions, are required to comply with Convention rights when they are exercising a “public function” but not otherwise.
During the debates on the Human Rights Bill, Parliament took the view that responsibility to comply with Convention rights under section 6(3)(b) would depend, not on the status of the organisation concerned, but on the nature of the functions it performed. A broad and flexible interpretation of “public authority” was seen as necessary to take account of the increasingly large number of private bodies exercising public functions.
Interpretation of “Public Authority” in the courts
However, a line of cases regarding the application of section 6(3)(b), most notably Callin v Leonard Cheshire Foundation appears to reject this approach. It suggests that a private organisation, unless exercising statutory powers, or coercive or monopolistic powers delegated by the State, will fall within the ambit of section 6(3)(b) only where its structures and work are inextricably “enmeshed” with the delegating State body.
The likely consequence of the Leonard Cheshire line of caselaw is that many organisations that “stand in the shoes of the State” will not have responsibilities under the Human Rights Act. In particular, in the context of a system of public service provision where responsibility is divided between public and private or voluntary sector bodies, a narrow application of responsibilities under section 6(3)(b) may lead to gaps and inconsistencies in human rights protection.
Achieving human rights accountability
It may be argued that, in light of recent decisions of the courts, section 6(3)(b) will need to be revisited to ensure that the Human Rights Act satisfies the United Kingdom's obligation under Article 13 ECHR to ensure an adequate remedy for breaches of Convention rights. Beyond section 6(3)(b), however, there may be alternative means of filling any gap in Human Rights Act accountability.
1. Accountability of the delegating public authority
Failing redress from a private service provider, it may be that redress can be obtained from the delegating public authority, under section 6 HRA.
2. Inclusion of human rights protection in terms of contract
It was suggested by the Court of Appeal in the Leonard Cheshire case that the potential gap in accountability could be addressed in the future by contractual provisions designed to ensure protection of Convention rights.
3. "Horizontal" application of rights between two private persons
The current caselaw under the HRA suggests that the Act affords only a limited degree of horizontal application of rights between private persons. However it is arguable that the courts' obligations to take Convention rights into account in all cases (under section 6 HRA) could ensure human rights accountability against private organisations providing public services.
The Joint Committee on Human Rights would welcome written evidence on the following points.
1. Whether in your view the meaning of public authority under the Human Rights Act, as interpreted by the courts, it the right one?
2. What, in practice, might be expected to be the impact of the definition of public authority applied by the courts for the protection of human rights?
3. What steps, if any, should be taken to address any potential gaps in Human Rights Act protection and accountability, following the Leonard Cheshire case?
4. Whether any alternative means, apart from section 6 (3)(b), (such as contractual terms) could effectively fill any potential gaps in human rights protection?
Instructions to Witnesses
Evidence should be submitted to Paul Evans, Commons Clerk of the Joint Committee on Human Rights, Committee Office, House of Commons, London SWlA OAA. Fax 020 7219 6864. E-mail JCHR@parliament.uk. Electronic submission is acceptable to meet the closing date, 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 or WordPerfect format. Evidence should if possible arrive by 21 April 2003; evidence submitted later may not be able to be taken into account in the Committee's deliberations.
Shorter submissions (of fewer than 5000 words) would be preferred. Longer submissions should include a one-page summary.
Evidence must be clearly printed or typed on single sides of A4 paper, unstapled. Paragraphs should be numbered. If drawings or charts are included, these must be black-and-white and of camera-ready quality. Evidence should be signed and dated, with a note of the author's name and status, and of whether the evidence is submitted on an individual or corporate basis. Only one copy is required. All submissions will be acknowledged.
Evidence becomes the property of the Committee, and may be printed 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.
Further information on the Joint Committee is available on its website at the address shown below.