Human rights law

Public authority

In R v Leonard Cheshire Foundation [2002] EWCA CIV 366 21 March the Court of Appeal (consisting of the Lord Chief Justice, Lord Woolf, and Lords Justices Laws and Dyson) gave further consideration to the difficult question of what is a 'public authority' under the Human Rights Act 1998.

Section 6 of the act makes it unlawful for a public authority to act in a manner which is incompatible with convention rights unless it is forced to do so by, or is giving effect to, incompatible primary legislation.

A public authority includes a body some of the functions of which are functions of a public nature (section 6(3)(b) of the Human Rights Act).

But such a 'hybrid' body is not a public authority in relation to its acts, which are private in nature.

The Law Society is an example - it is a public authority in relation to its regulatory and disciplinary functions, but not in relation to its functions of representing the interests of the solicitors' profession.

The Leonard Cheshire Foundation (LCF) is the UK's leading voluntary provider of care and support services for disabled people.

It runs several residential care homes.

Most of its residents are placed there by local authority social services departments, exercising functions under, for example, section 21 of the National Assistance Act 1948 (NAA).

Section 26 of that act empowers authorities to provide residential accommodation through arrangements made with voluntary organisations, as was done with the foundation.

The claimants were in a foundation home.

They claimed that its proposed closure by the LCF would breach their right to respect for their home under article 8 and was therefore a breach of the foundation's duty as a public authority under section 6 of the Human Rights Act.

At first instance, Mr Justice Stanley Burnton held, after a preliminary hearing, that the foundation was not a public authority.

The Court of Appeal confirmed this conclusion, applying its decision in Donoghue v Poplar Housing and Regeneration Community Association & another [2001] 3 WLR 183 (see [2001] Gazette, 21 June, 44).

According to the court, if a charitable body such as the LCF provides accommodation, in accordance with a section 26 arrangement, to people to whom a local authority owes a duty under the NAA, it does not follow that the charity is performing a public function.

The court rejected the appellants' arguments that the factors in this case made LCF a public body.

Although it received public funds for its services this factor, while relevant, was not determinative of whether its functions were public or private.

Furthermore, section 26 of the NAA provided statutory authority for the actions of the local authority but it did not bestow any powers on the LCF.

The court considered that the appellants' only real argument was that if the foundation was not performing a public function then they could not rely on article 8 against it.

However, for the court this argument was circular and could not create a public authority where in truth none existed.

The authority remained responsible, and it could not contract out of its obligations by using section 26 of the NAA.

Were it otherwise, '...then there would be a responsibility on the court to approach section 6(3)(b) [which creates hybrid authorities] in a way which ensures, so far as this is possible, that the rights under article 8 of the persons in the position of the appellants are protected'.

The court went on to suggest that, since the coming into force of the Human Rights Act, it would arguably be possible for a resident to require the local authority to enter into a contract which obliged its provider to protect residents' article 8 rights.

Such a contract could be enforced not only by the local authority but also by a resident as a person for whose benefit it was made.

The case provides further clarification of the difficult public/ private divide which section 6 of the Human Rights Act creates.

But it will be far from the last word on the subject.

Particularly helpful is the statement that the local authority cannot contract out of its Human Rights Act responsibilities, and clearly the courts will try to ensure that they do not find ways of doing so.

The court has also usefully suggested that public authority contracts should oblige private providers to comply with Human Rights Act obligations, and that members of the public may be able to force authorities to do so.

Thus there may be a public law duty on an authority to secure performance of its Human Rights Act duties, enforceable by individuals.

This would mirror the position in Strasbourg, where the UK has been held responsible under the European Court of Human Rights for the activities of private persons or bodies, such as private schools.

The Strasbourg court has made clear that a state cannot contract out of its obligations, bound as it is by article 1 to 'secure' the convention rights to everyone within its jurisdiction.

Section 6 of the Human Rights Act places the equivalent obligation on public authorities.

The court sought to avoid the procedural complexities which might arise from the uncertainties as to whether a body was a public authority or not.

Where a claimant advanced a bona fide contention that the defendant was performing a public function, it was appropriate to make a claim for judicial review.

Once that matter had been resolved, a decision could be made as to whether it was appropriate to use the powers under part 54 to transfer the case.

Finally, the case is notable for the fact that the Court of Appeal gave permission to the human rights campaigning organisation Justice to make written submissions on the appeal, which it regarded as being of general public importance.

The Justice material dealt with, among other issues, government statements on the issue made during the passage of the Human Rights Act and comparative material showing how the issue was approached in other convention jurisdictions.

By Stephen Grosz, Bindman & Partners, London