Human Rights Act 1998 (Meaning of Public Authority)

Oral Answers to Questions — Health – in the House of Commons at 3:33 pm on 9th January 2007.

Alert me about debates like this

Photo of Andrew Dismore Andrew Dismore Labour, Hendon 3:33 pm, 9th January 2007

I beg to move,

That leave be given to being in a Bill to clarify the meaning of 'public authority' in section 6 of the Human Rights Act 1998.

It has been immensely important that the Human Rights Act brought home, so to speak, the rights set out in the European convention. Before the Act came into force, British people had to go to Strasbourg to redress breaches of their human rights. However, in one respect the protection afforded by the Act has been less comprehensive than intended by Parliament. The problem has arisen because of the development of case law interpreting the meaning of "public authority" in the Act.

Under section 6, it is unlawful for a public authority to act in a way that is

"incompatible with a Convention right".

The Act does not provide a list of public authorities to which the Act is applicable. Instead, it states in section 6(3)(b) that a "public authority" includes

"any person certain of whose functions are functions of a public nature".

During the passage of the Bill, statements by the then Home Secretary and Lord Chancellor made it clear that privatised or contracted-out public services were intended to be brought within the scope of the Act. The "public function" definition, we were told, emphasised the function rather than the institutional status of the body performing it.

So, for example, it was considered that a private security company would be performing a public function if it were running a prison under contract with the Government. It would be within the terms of the Human Rights Act. But when a private security company is providing a service to another private company, it does not come within the provisions of the Act.

Since the 1998 Act came into force, a series of court cases have turned on whether a particular private company or organisation providing services was within its ambit. The result has been to undermine, or even to overrule, the comprehensive and wide interpretation of "public authority" which was originally intended. One particular case has left utter confusion over that question—the 2002 case commonly known as the Leonard Cheshire case. The local authority-funded residents of a care home run by the Leonard Cheshire Foundation, a private charity, wanted to challenge the decision to close down the home and disperse the residents, who claimed that that broke their right to respect of their home under article 8 of the European convention on human rights. However, the Court of Appeal found that managers of the care home did not constitute a "public authority" within the definition of section 6(3)(b) of the Act, so residents could not enforce their human rights against the care home even though the council still held its obligations to them under article 8, regardless of its contract with Cheshire Homes.

In 2004, after reviewing that judgment and other cases that had turned on the definition of "public authority", the Joint Committee on Human Rights concluded that the test that was being applied by the courts was "highly problematic". That has resulted in many instances of an organisation standing in the shoes of the state but without responsibility under the 1998 Act, leading to a serious gap in the protection that the law was intended to offer. That gap is not just a theoretical legal problem, but a problem with significant and immediate practical implications. As many services previously delivered by public authorities become privatised or contracted out to private suppliers, so the law has failed to adapt to that reality. The implications of that failure extend across the range of especially vulnerable people in society, including elderly people in private residential care or nursing homes, tenants in housing association properties, children outside the maintained education sector, or looked-after children in receipt of children's services.

In its 2004 report, the JCHR examined several possible solutions, including: amending the 1998 Act to clarify the responsibility of organisations to protect human rights in carrying out public functions; protecting human rights through the terms of the contracts between public authorities and private providers of public services, backed by authoritative guidance on when an organisation was likely to be a "public authority" for the purpose of the Act; and the development of case law on the meaning of "public authority". The Committee's views were that amendment of the Act would be likely to create as many problems as it solved and would be too soon after the Act's implementation, and that guidance on the formulation of contracts and best practice would be helpful but could not provide a complete or enduring solution, so the Government should intervene in the public interest as a third party in cases where they could argue for a broad interpretation. Three years on from the JCHR's report, there have been a number of significant developments. In November 2005, the Government published guidance to local authorities on contracting for services in the light of the 1998 Act.

In my next remarks, I am grateful to you, Mr. Speaker, for your earlier ruling on sub judice. The Government intervened in the case of the Crown on the application of Johnson and others v. London Borough of Havering to argue that the meaning of "public authority" covers elderly and vulnerable people who are receiving care from a private provider on behalf of a public authority. The case considered whether local authority care homes that were transferred to the private sector remained public authorities in respect of local authority placed residents. The Government were unsuccessful, but the appeal will be heard later this week, on 11 and 12 January. In addition, the Government are consulting on the "public authority" question as part of their discrimination law review.

I welcome those developments, but there remains an urgent need to ensure that our human rights law clearly protects vulnerable people. The British Institute of Human Rights has reported on treatment of residents of residential care homes that clearly amounts to a breach of their human rights. Cases include the circumstances of home closures or notice to individuals to leave homes, and inhuman and degrading treatment such as elderly residents being fed breakfast while on the commode. When such poor treatment occurs in privately run residential care homes, it is not satisfactory for residents to have to rely on interpreting a contract between a local authority and a home's managers: they should be able to enforce their human rights directly.

In this Parliament, the Joint Committee on Human Rights, which I chair, has continued to take a close interest in the matter. We asked the Lord Chancellor about it during an evidence session on 30 October. In his Department's July 2006 review of the Human Rights Act, which was repeated to us in his evidence, the Lord Chancellor put forward the extraordinary proposition that "widening" the definition of public authority could have the effect of driving private providers out of the market.

That was extraordinary because the proposal would not widen the definition, but be exactly on "all fours" with what the then Lord Chancellor told Parliament was intended when the Bill was introduced. Moreover, the appalling implication is that those in private sector care homes, who are probably more vulnerable to abuse than those in "in-house" facilities, are not to have a right to challenge that abuse in our courts, thus making them second-class citizens. Their numbers are growing as local authorities continue to contract out. The contractors' commercial interests are put before the decent treatment of the elderly and vulnerable.

The JCHR raised the possibility of legislation to make it clear that

"any person or body providing goods, services or facilities to the public, pursuant to a contract with a public authority, is a public authority for the specific purposes of the Human Rights Act".

My Bill is in my name, not that of the JCHR, though its supporters include Commons JCHR members from all three parties represented on the Committee. I believe that the case for addressing the issue through legislation is stronger now than ever.

The purpose of my Bill is unambiguously to reinstate the wide and functional interpretation of "public authority" that was understood by Parliament and Government alike to be the meaning of section 6 when the Human Rights Act was passed. The intention behind my Bill is to ensure that human rights protections apply comprehensively, directly and consistently to all those who receive public services from private providers, including the most vulnerable members of our society. I hope that the House will support the motion.

Photo of John Redwood John Redwood Conservative, Wokingham 3:41 pm, 9th January 2007

I oppose the Bill, which illustrates the trouble into which a well intended Government get when they decide to rely on the courts and human rights legislation instead of Parliament and representative democracy.

It is good of Mr. Dismore to highlight the gross inadequacies in the drafting of the original Bill and the way in which the Government's intentions have miscarried. I can understand why he is helpfully trying to get the Government out of their hole. It is instructive that Ministers, with all their access to legal advice and help, have not come forward with a similar measure, properly drafted by parliamentary draftsmen. They clearly believe that it is a treacle well into which they could sink deeper.

I want to make a simple point. The hon. Member for Hendon is attacking the actions of several elected councils—quite a few of them are probably Labour councils. He claims that they do not stand up for the most vulnerable in their community. Surely we, in the senior representative democratic forum in the country, should believe in the democratic system and in putting right such problems in provision by democratic challenge in the council chamber and through the intervention of councillors over their officers and over the supervision of contracts. If too many councillors have consented to too many bad contracts and vulnerable people are being damaged, that is a disgrace and it should be sorted out in the normal democratic way. If the councillors responsible cannot sort it out, I hope that their electors will take the necessary action at the ensuing council elections to change the management.

Surely the hon. Member for Hendon must accept that the matter illustrates only too well that reliance on the law and the human rights panoply does not work and that we need to get a vibrant democracy again so that, in each council chamber as well as in this Chamber, we can get justice for people and action from Ministers and ruling councillor groups who otherwise are not doing their job.

Question put, pursuant to Bills and nomination of Select Committees at commencement of public business">Standing Order No. 23 (Motions for leave to bring in Bills and nomination of Select Committees at commencement of public business), and agreed to.

Bill ordered to be brought in by Nia Griffith, Mary Creagh, Dr. Evan Harris, Mr. Douglas Carswell, Ms Karen Buck, Clive Efford, Angela Eagle, Joan Ruddock, Mr. Paul Burstow and Mr. Andrew Dismore.