Public authority and the protection gap

As the courts continue to add to the uncertainty surrounding 'public authorities', Melanie Carter looks at the legislative changes required to clarify which bodies will be caught by the Human Rights Act 1998

With nearly three years of the Human Rights Act 1998 behind us, lawyers, campaigners and politicians have begun to discuss the ways in which the Act might need to be changed.

One of the first candidates may well be the vexed question of which bodies are 'public authorities'.

Section 6(1) of the Human Rights Act states that 'it is unlawful for a public authority to act in a way which is incompatible with a convention right'.

Section 6(3)(b) further provides that 'public authority' includes 'any person certain of whose functions are functions of a public nature'.

While it is clear which so-called 'pure' public authorities are likely to be caught by the Act - for example, government, police, NHS trusts - it is extremely unclear which so-called 'functional' public authorities are caught, that is, those bodies that only sometimes exercise public functions.

It has become apparent that the courts are interpreting section 6(3)(b) in a narrow fashion, leading to what has been called the 'protection gap' (R v Servite Houses and another, ex parte Goldsmith and another [2001] LGR 55).

What this refers to is the lack of protection for those persons in receipt of public services where a 'pure' public authority, such as a local authority, has contracted out the particular service (for example, residential care) to a private sector body.

In Poplar Housing and Regeneration Community Association Ltd v Donoghue (2001) 33 HLR 823-846, the Court of Appeal decided that a registered social landlord housing homeless persons on behalf of the London Borough Council of Tower Hamlets was a 'functional' public authority for the purposes of the Act.

Later the same year, the Court of Appeal in R v Leonard Cheshire Foundation [2002] HRLR 30, held that a charitable trust providing residential care to people with disabilities on behalf of local authorities was not carrying out public functions and, therefore, not caught by section 6(3)(b) of the Act.

The confusion around this issue has led to an inquiry by the Joint Committee on Human Rights.

The British Institute of Human Rights (BIHR) was invited to make a submission.

The BIHR submitted that the courts have narrowed the definition of 'public authority' for the purposes of section 6(3)(b) far beyond that which Parliament intended.

Moreover, it seems that a major impetus for this restrictive approach has been a reluctance to separate out the test for amenability to judicial review from the test for what is a public authority under section 6 of the Act.

In deciding whether a particular body is a functional public authority the courts have taken into account such things as the degree to which the nature of the body might be said to be private, whether it is exercising statutory powers, its purposes (namely, not for profit or private) and of course the nature of the function it is exercising.

The BIHR accepted that the test could not be purely function based.

Taking education to be a public function, a solely function-based test could lead to such anomalies as private music lessons in one's home being caught by the Act.

Thus it becomes necessary to develop a list of other indicators, inevitably bringing one back to considerations of the nature of the provider and the source of power.

The real question it seems is the relative weight to be given to the different indicators.

This was, in the BIHR's view, where the decision in Leonard Cheshire could be criticised.

The High Court could be said to have given too much weight to the nature of the provider, the absence of a statutory source of power and the degree to which that provider was or was not 'enmeshed' with the local authority.

The BIHR took the view that these considerations should have been given less weight, and greater weight should be given to the fact that the particular care home was assisting a local authority carry out a function which, if provided directly by the local authority, would unquestionably have been caught by the Act.

The Court of Appeal appears to have been greatly influenced by the fact that the function provided to private residents of the care home was not said to be any different to that provided to residents placed there by the local authority.

However, what the judges saw as a possible anomaly - that is, private residents receiving different protection to residents placed by the local authority in the same home - the BIHR viewed as a natural consequence of an individual exercising his choice to buy a private service.

Similarly, if a parent decided to pay for private music lessons, it could not sensibly be said that the teacher was carrying out a public function for the purposes of the Act, whereas such lessons provided by the education authority would be considered a public function.

The court in Leonard Cheshire expressed concern over there being a difference in protection afforded to residents within the same care home.

However, the BIHR said this was a logical and easily understandable difference.

What was not understandable or desirable was a difference in protection afforded to those residents placed by a local authority in a care home that it ran itself as against that afforded to those the local authority placed in privately run homes.

Convention case law has made it clear that states cannot shift responsibility through delegation to private bodies (Van der Mussele v Belgium (1983) 6 EHRR 163).

Moreover, state responsibility attaches to the acts of private individuals if the state has facilitated or colluded in such acts (Lopez-Ostra v Spain (1994) 20 EHRR 277).

Article 1 of the convention applies a doctrine of positive obligations under which states can be responsible for the acts of private individuals, quite apart from the positive obligations arising under the individual articles.

Thus, private contractors who undertake to carry out a service for a public authority should be expected to meet the standards that would otherwise be expected of that authority.

The BIHR suggested that a dual approach may need to be taken.

First, the courts need to afford greater weight to those indicators of 'public function' which lead to a generous interpretation.

Second, the government needs to consider legislative change.

What is not desirable is for the existing state of uncertainty to continue.

For human rights to be a reality, the public need to know - with certainty and without the need for litigation - which bodies are caught by the Act.

Melanie Carter is a senior solicitor in the public law group at the London office of Anglo-US firm Mayer Brown Rowe & Maw.

She drafted the BIHR submission