Since the Human Rights Act 1998 (the act) came into force, public authorities have been required to give effect to rights under the European Convention on Human Rights. It seems that the Government intended this to cover a multitude of bodies which were conducting functions that could be perceived as ‘public’.
The courts, so far, have taken a more restricted approach. But anyone whose clients include private providers of public services, churches, regulators or even processors of sensitive personal data should beware. A recently published report of the Joint Committee on Human Rights is highly critical of recent Court of Appeal decisions, which exclude from the ambit of the act many activities of such bodies. It calls for the wider approach of the House of Lords in the case of Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank (2003) to be more widely followed. If these calls are heeded, many more bodies could find themselves required to comply with human rights standards.
The ‘engine’ of the act is Section 6, which makes it unlawful for a public authority to act incompatibly with convention rights. The act provides an inclusive definition of ‘public authority’, which covers both ‘pure public authorities’ (such as government departments, local authorities and the police), and in Section 6(3)(b), ‘functional public authorities’ (organisations with a mix of public and private functions).
The joint committee report reached the strong and disturbing conclusion that the way in which the courts have interpreted the concept of functional public authority “leaves real gaps and inadequacies in human rights protection in the UK, including gaps that affect people who are particularly vulnerable to ill-treatment”. It went so far as to say that “this deficit in protection may well leave the UK in breach of its international obligations to protect the convention rights of all those in the jurisdiction and to provide mechanisms for redress where those rights are breached”.
The joint committee has called for a change in the law so that any provider of services for which the Government has assumed responsibility is clearly bound to respect the human rights of its clients. So concerned was the joint committee that it even entertained suggestions that the Government should intervene legislatively to amend the definition of ‘public authority’ in the act, or attach to the act a schedule of private service providers that act as public authorities.
These solutions were rejected in favour of possible government third-party intervention in a suitable case before the courts and detailed guidance from the joint committee as to how ‘functional public authorities’ should be defined. But the stark conclusion – that the current legal position cannot be left as it is – means the private and voluntary providers of public services who thought themselves beyond the obligations of the act no longer have the luxury of complacency.
When the Human Rights Bill was debated in 1997 and 1998, the Government’s intention was clearly to extend human rights protection to all ‘public functions’. The then Lord Chancellor, Lord Irvine, said the act was to apply “to a wide rather than a narrow range of public authorities, so as to provide as much protection as possible to those who claim their rights have been infringed”. This was why the legislation applied Section 6 of the act to all “functions of a public nature”, by service providers which would be judged to be ‘public authorities’ based on the nature of their functions rather than their legal personality. Then Home Secretary Jack Straw said the Government “wanted a realistic and modern definition of the state so as to provide a correspondingly wide protection against the abuse of human rights”.
According to the joint committee, this desire has not been realised.
In the caselaw to date, it found that 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 (in human rights terms) criterion of the body’s administrative links with institutions of the state”.
The error of approach started with the first detailed consideration of the definition of public authorities, in Poplar Housing and Regeneration Association Ltd v Donoghue (2001). Although the housing association in that case, which provided housing on behalf of a local authority, was found to fall within Section 6(3)(b), this was because it was institutionally “enmeshed” in the activities of the local authority. The Court of Appeal rejected a functional approach, Lord Woolf explicitly commenting that “the fact that a body performs an activity which otherwise a public body would be under a duty to perform cannot mean that such performance is necessarily a public function”.
This approach was followed in Callin, Heather & Ward v Leonard Cheshire Foundation (2002), where the Court of Appeal held that Section 6(3)(b) did not apply to the private charitable organisation that managed a care home. Even though it was performing functions under delegated statutory authority, was in receipt of public funding and provided care which would otherwise have been provided by the state, it was under no statutory obligation to give effect to the human rights of its residents. The court said a ‘public’ function in Section 6(3)(b) meant a ‘governmental’ function – the diametric opposite of the Government’s expressed intention in the human rights debates.
A slightly more functional approach was taken by the Administrative Court in R (A) v Partnerships in Care Ltd (2002), which found that the lack of various institutional elements discussed by the Court of Appeal did not preclude a finding that a privately-run mental hospital was a functional public authority. More importantly, the House of Lords emphasised the functional approach in Aston Cantlow v Wallbank. Lord Hope said the narrow category of “pure public authorities” should be counterbalanced by the “much wider reach” of “functional public authorities”, and that it is “the function that the person is performing that is determinative” of whether it falls under Section 6(3)(b).
The decision in Aston Cantlow has not restored the ambit of the act to its intended breadth, partly because the House of Lords did not expressly overrule the Poplar Housing or Leonard Cheshire cases. The Court of Appeal in R (Beer (t/a Hammer Trout Farm)) v Hampshire Farmers’ Market Ltd (2003) resurrected the question of the institutional relationship between a governmental authority and a private provider in deciding what amounted to a public authority.
The joint committee is concerned that, by failing to adapt to the contemporary reality of the ever-growing performance of public functions by private and voluntary sector bodies, the law leaves some of the most vulnerable members of society as ‘stranded victims’ of human rights abuses. It branded as “too phlegmatic” the Secretary of State for Constitutional Affairs’ response that the Government was keeping the current legal position “under close review”. It insisted that the immediate practical implications of the lack of certainty for both providers and recipients of public services requires “a more vigorous approach to re-establishing the proper ambit of the act”.
The committee examined, but dismissed as insufficiently workable, the novel idea hinted at by Lord Woolf in Leonard Cheshire that where a publicly-organised service was provided by a private or voluntary organisation, convention rights could be protected by the inclusion of contractual terms for the protection of those rights. Instead, the committee concluded by urging the Government “to intervene in the public interest as a third party in cases where it can press the case for a broad, functional interpretation of the meaning of public authority under the Human Rights Act”, and stated that “as a matter of broad principle, a body is a functional public authority performing a public function under Section 6(3)(b) of the Human Rights Act where it exercises a function that has its origin in governmental responsibilities… in such a way as to compel individuals to rely on that body for realisation of their convention human rights”.
In light of the joint committee’s critique, it is likely the courts will follow the functional approach set out in Aston Cantlow more consistently, and if they do, the range of organisations incurring obligations under the act will increase significantly. This report should be taken as a signal to private and charitable providers of public services that they may be unable to avoid the financial and organisational impact of ensuring respect for convention rights in their functioning and decision-making.
This will affect the organisational ethos of these companies, but will also protect the human rights of those dependent on such functional public authorities for the provision of services.
Helen Mountfield is a barrister practising in administrative law and human rights at Matrix Chambers