Extending the vertical effect of the Human Rights Act 1998

Discussion in 'Finance, Property, Law' started by Iolis, Jul 7, 2009.

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  1. 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.

    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.

    However, a line of cases regarding the application of section 6(3)(b), most notably R. (on the application of Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366; [2002] 2 All E.R. 936 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 case law 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.

    During the 2008/2009 session of Paliament, Mr Andrew Dismore (Lab: Hendon) introduced a Private Members Bill to redress what he sees as the social injustice flowing from the Leonard Cheshire line of authority. The Human Rights Act (Meaning of Public Authorities) Bill was given its second reading on 3 July 2009: Hansard HC Deb 3 July 2009 cc 650 – 664WH. It is Mr Dismmore’s third attempt to have the Bill read a second time.

    Unnfortunately, through the use of that well known device known as ‘filibustering’ by the Parliamentary under-secretary of state for justice – Bridget Prentice (Lab: Lewisham East). The Bill was ‘talked out’ of the limited time allocated to the debate under Standing Order 14 by the government which opposes Mr Dismore’s Bill for reasons which they lack the moral courage to state clearly and openly.

    Nevertheless, the Bill has appeared on the order paper for the second reading to be resumed on 16 October 2007.

    My own view is that the government will ensure that the Bill is killed before it completes its Parliamentary passage and will not survive the General Election.

    Heaven forbid that the government should support a Bill the result of which may involve its lamentable treatment of those who are of no further use to the state being exposed as falling below any international rights-based standard.
     
  2. The tabloid Press in the United Kingdom have adopted a hostile attitude to the Human Rights Act. Indeed, the Conservative Party, under David Cameron have sought to capitalise on the public mood manufactured by newspaper editors by pledging to scrap the Human Rights Act . Mr Cameron wants to reform the Act to reflect what he sees as ‘uniquely ‘British values’

    It is suggested that, the following case, referred to in the Parliamentary debate, is an example of the way in which the Act is rather more limited than is generally realised. It illustrates perhaps why the Act needs to be broadened rather than abandoned or reformed to fit the view of it seen through the distorting lense of the newspaper editor.

    on 20th June 2007 the House of Lords handed down its judgement in YL (by her litigation friend the Official Solicitor)(FC)(Appellant) v Birmingham City Council and others (Respondents) [2007] UKHL 27 Their Lordships explored the definition of “public authority” under section 6 of the Human Rights Act 1998 (“HRA”). JUSTICE, Liberty, The British Institute of Human Rights, Help the Aged, Age Concern England (The National Council on Ageing), and the Disability Rights Commission all intervened in the case.

    By a majority of 3 to 2, the Law Lords held that that a private care home providing accommodation to elderly residents under contract with a local authority was not itself exercising “functions of a public nature” for the purposes of the Human Rights Act 1998.

    Consequently, the care home was not bound under section 6(1) of the HRA to act in accordance with rights protected by the European Convention on Human Rights.

    Nine out of ten care homes are privately run and local authorities are increasingly arranging for private companies to provide care and accommodation which the local authority has a
    statutory duty to provide. The impact is of particular significance given that residents in care homes are amongst those most vulnerable to human rights abuses.

    Facts

    YL is an 84 year old woman with Alzheimer's disease. In January 2006, she became a resident of a nursing home under the terms of an agreement signed on YL’s behalf by her daughter. The home is privately owned, although YL’s care and accommodation was arranged and largely funded by the local authority in accordance with its statutory duties to arrange accommodation under sections 21 to 26 of the National Assistance Act 1948.

    In June 2006, the company wrote to YL's daughter giving 28 days notice that the agreement would be terminated. This was prompted by concerns - which are disputed - about the conduct of some of YL's family during visits. There was evidence that YL would deteriorate clinically if she was transferred to an unfamiliar care setting. YL argued that the notice given by the care home was incompatible with her right to respect for her home under Article 8 of the European Convention on Human Rights and was therefore unlawful under section 6(1) of the Human Rights Act 1998.

    The Law

    Section 6 of the Human Rights Act 1998 provides that:

    (1) It is unlawful for a public authority to act in a way which is
    incompatible with a Convention right.
    (2) ….
    (3) In this section “public authority” includes
    (a) …..
    (b) any person certain of whose functions are functions of
    a public nature.

    The courts have considered the definition of ‘functions of a public nature’ and the interpretation and application of section 6(3)(b).

    The Issue

    This appeal considered the preliminary issue of whether a care home, when providing accommodation and care to a resident pursuant to arrangements made with a local authority under the National Assistance Act 1948, is performing “functions of a public nature” for the purposes of section 6(3)(b) of the Human Rights Act 1998. If so, the care home would, in that respect, be a “public authority” obliged to act compatibly with Convention rights under section 6(1) of the HRA and residents would be able to enforce their human rights directly against the private care home.

    Lower courts

    Both the High Court and the Court of Appeal followed the much criticised Court of Appeal authority R (on the application of Heather and others) v Leonard Cheshire Foundation [2002] EWCA Civ 366 in deciding that the private care home was not performing “functions of a public nature” under section 6(3)(b) of the Human Rights Act. This meant that YL was unable to enforce her human rights directly against the private care home.

    Leonard Cheshire

    The claimants in the Leonard Cheshire case were long term residents of a care home run by a charity (“LCF”). They had all been placed in the care home by local authorities exercising their statutory duties under the National Assistance Act 1948. The court rejected the argument that the provision of residential care by a private or voluntary sector provider in these circumstances was a “function of a public nature”. This meant that a decision by LCF to close the home and transfer the residents could be taken without any consideration of the impact on their human rights.

    The House of Lords

    By a narrow majority of 3 to 2, the House of Lords dismissed YL’s appeal. It held that the provision of care and accommodation by the privately owned care home in the circumstances described above does not constitute a “function of a public nature” for the purposes of section 6(3)(b) of the HRA. However, Lord Neuberger, one of the majority judges, admitted that there was “a sharp difference of opinion in the House.”

    The majority of the Law Lords took a narrow black letter law approach, relying heavily on private law principles and contractual remedies. By contrast, Baroness Hale and Lord Bingham, who issued strong dissenting judgments, took a purposive approach which is more in keeping with both the jurisprudence of the European Court of Human Rights and the interpretative principles of the HRA itself (section 3(1) imposes a statutory duty on the courts to read and give effect to all legislation in a way which is compatible with Convention rights).

    The Minority

    Baroness Hale and Lord Bingham both focused heavily in their judgments on the various factors which ought to be considered in the round when assessing whether a function is of a public nature. Baroness Hale said that relevant factors include whether the state has assumed responsibility for seeing that the task is performed, the public interest in having that task undertaken, public funding and the connection between the service and the core values underlying the Convention rights. She also made the important point that the use or potential use of statutory coercive powers is “a powerful consideration in favour of this being a public function”, noting that “provisions to safeguard incapacitated people who are deprived of their liberty will be inserted into the Mental Capacity Act 2005 by the Mental Health Bill [then] going through Parliament. These will apply to residents in care homes as well as in hospital.”

    It was her view that in this case, the factors that she identified, when taken together, “lead inexorably to the conclusion that the company, in providing accommodation, health and social care [for YL], was performing a function of a public nature. This was a function performed [for YL] pursuant to statutory arrangements, at public expense and in the public interest. I have no doubt that Parliament intended that it be covered by section 6(3)(b)”

    Lord Bingham agreed with Baroness Hale. “The performance by private body A by arrangement with public body B, and perhaps at the expense of B, of what would undoubtedly be a public function if carried out by B is, in my opinion, precisely the case which section 6(3)(b) was intended to embrace. It is, in my opinion, this case”.

    The Majority

    Lord Scott, however, decided that the private care home was simply providing a service for which it charges a commercial fee and that the manager’s duties to its residents are governed by private law (rather than imposed by public law). In his view, it was “a feature or consequence” of the regulatory framework relating to care homes that there is, in this case, an express term in the agreement between the Council and the care home obliging the care home to observe the Convention rights of residents, including YL. This term is incorporated into the agreement between the care home and YL so any breach by the care home of YL’s Convention rights would, Lord Scott reasoned, give her a cause of action for breach of
    contract under ordinary domestic law.

    Lord Scott rejected the suggestion that there was a need for the extra protection that potential liability of the care home under the HRA would provide.

    Lord Mance and Lord Neuberger also dismissed the appeal.

    Another of the factors that swayed the majority was the argument made for Birmingham City Council that, under the National Assistance Act 1948, the local authority has a duty to arrange accommodation, but only a power - rather than a duty - to provide It. There was also a clear concern, driven by public policy considerations, that the boundaries of the HRA would be drawn too wide as a result of allowing the appeal, and in particular, that this might undermine the contracting out of services.

    Comment

    Our highest domestic court confirmed that residents and their families are unable to use the Human Rights Act to challenge these care homes directly when basic human rights are denied. The decision was premised, in part, on an assumption that there is a clear-cut distinction in practice between patients who are admitted to mental health institutions under section and care home residents who are assumed, in the absence of statutory coercive powers, to exercise freedom of choice. Unfortunately the reality of the experience of most care home residents is very different.

    Approximately 62% are cognitively impaired and have little or no choice as to where they live. The majority decision also took no account of the fact that very many care home residents are receiving nursing care funded by the NHS on one of three bands. In that sense, the care home is standing in the shoes of the NHS as well as the local authority.

    Whilst the decision of the House of Lords does not affect the responsibility of local authorities to protect the human rights of those they place in residential care, this will be of little comfort to those, like YL, who are placed by authorities in care homes run by the private or voluntary sector. Residents and their families should be able to challenge human rights abuses ‘at source’. The decision meant that instead, complaints must be taken all the way to the local authority. This will almost certainly be a disincentive for those already frightened by the prospect of ‘speaking out’ against poor treatment. In practical terms, an individual’s rights in these circumstances will be of lesser value than if they existed against
    the care home itself. In some cases - notably in home closure situations - a remedy against the local authority will be worthless.

    In addition, any contractual term imposed on the care home to observe residents’ Convention rights is not an adequate substitute for potential liability of the care home under the HRA.

    Where behaviour is incompatible with a Convention right, such treatment needs to be seen in those terms and not merely as a matter of private law. A finding that the HRA has been breached would send a strong signal to all care homes that such behaviour is a violation of fundamental human rights and cannot be tolerated in a democratic society. Crucially, it would also help to encourage the development of a positive culture in which respect for fundamental rights is placed at the heart of care home service provision. A court action in contract law would not have the same impact. In any event, despite guidelines on procurement, there is no guarantee that contractual terms relating to HRA compliance will be in place in every case where a breach may occur, nor that any existing contract terms will be enforceable by the care home resident as a matter of contract law.

    Those in care homes are often amongst those most vulnerable to human rights abuses and therefore they have an especially acute need for the protection provided by the HRA. Indeed, Examples of abuses in care homes in the United Kingdom include persistent rough handling, unjustified evictions, residents being left for hours in soiled sheets, older couples being split up from one another and residents being routinely overmedicated to keep them docile.

    Convention rights of particular importance and relevance are the right to life (under Article 2), the right to be protected from inhuman or degrading treatment (under Article 3), the right to liberty (under Article 5) and the right to respect for private and family life (under Article 8). The importance of the problem regarding the meaning of public authority is highlighted by the fact that so many organisations decided to intervene in the YL case. JUSTICE, Liberty and BIHR jointly intervened, as did Help the Aged and Age Concern England (National Council on Ageing). The Disability Rights Commission and the Secretary of State for Constitutional Affairs also made separate intervention submissions. All of the interveners argued that the Human Rights Act should directly bind private and voluntary care homes providing residential care under contract to a local authority to people such as YL.

    Interestingly, the care home in this case has now decided not to terminate the contract relating to YL’s care and is discussing arrangements for visits by her family. Somewhat ironically, the commencement of legal proceedings on behalf of YL was an impetus for the parties to sit down and find a solution in a manner consistent with a human rights approach.

    The Legislative Response

    In the final paragraph of his judgment, Lord Neuberger observed that “it may well be thought to be desirable that residents in privately owned care homes should be given Convention rights against the proprietors. ….If the legislature considers such a course appropriate, then it would be right to spell it out in terms…” Without doubt, the decision by the House of Lords in YL increased the pressure on the Government to plug the ‘legal loophole’ that means that people in private and voluntary sector care homes - effectively, the vast majority of care home residents in Britain - continued to be denied effective human rights protections until the enactment of section 145 Health and Social Care Act 2008 which came into force on 1 December 2008. Under section 145(1) care and accommodation which is publicly arranged under the National Assistance Act 1948 (or similar provision in Scottish and Northern Irish legislation) is now subject to the Human Rights Act 1998 as if it were a function of a public nature within the meaning of Section 6(3)(b) of that Act. It therefore reverses the effect of the judgment of the Appellate Committee of the House of Lords in YL v Birmingham City Council on care homes, in respect of individuals whose care is publicly arranged.

    In this case, the Human Rights Act provided no remedy at all for those in private care homes for the elderly - the owners presumably practicing the traditional British view of human rights to which Mr Campbell refers. In the event, the government relented on this particular issue and brought care homes for the elderly within the ambit of the Human Rights Act.

    Many other areas remain outside. An example, is where a local authority contracts-out to a private provider the responsibility for children placed in Local Authority care where, having been removed from an abusive or potentially abusive home environment, the potential exists for a child to be abused by a paid professional!

    The government argues that placing private enterprise under such restrictions would deter many from tendering for contracts in the first place. This argument is hardly compelling – The purpose of the government is to achieve 'best value', which in practice, means the cheapest tender which is usually won by a provider who is driven to maximise his profit by paring his service to the bone and in so doing, creating the very environment in which human rights violations are at risk of occurring by negligent omission.