Contracting out of the Human Rights Act 1998 Lord Bingham's and Baroness Hale's Dissents in YL v Birmingham City Council and Others (Secretary of State for Constitutional Affairs Intervening) [2007] UKHL 27

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CHAPTER 14

CONTRACTING OUT OF THE HUMAN RIGHTS ACT 1998

Lord Bingham’s and Baroness Hale’s Dissents in

YL v Birmingham City Council and Others (Secretary of State for Constitutional Affairs Intervening) [2007] UKHL 27

Christopher Costigan

14.1 Introduction 264
14.2 Legislative background 264
14.3 Early cases 266
14.3.1 Aston Cantlow 268
14.4 Facts 270
14.5 Decision of the majority 270
14.5.1 Intervention: Secretary of State for Constitutional Affairs 271
14.5.2 Framing the question 272
14.5.3 Contracting out 273
14.5.3.1 Comparators 276
14.5.4 Public funding 278
14.5.5 Public funding versus private funding 279
14.5.6 Conclusions 281
14.6 Lord Bingham’s and Baroness Hale’s dissents 281
14.6.1 Framing the question 281
14.6.2 Contracting out 283
14.6.3 Public funding 284 14.6.4 Conclusions 285
14.7 Conclusion 286

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264 Part IV – Public Law

14.1 INTRODUCTION

This chapter looks at the House of Lords’ decision of YL v Birmingham City Council and Others (Secretary of State for Constitutional Affairs Intervening)¹

and argues that the majority was wrong to hold that a private care home taking in patients through contracting out with the local authority was not a functional public authority for the purpose of the Human Rights Act 1998, s 6(3)(b).

The chapter begins by looking at the background to the Human Rights Act 1998, and in particular the government’s and Parliament’s intentions as to the term ‘public authority’ to show that it was always intended to be wide in scope. It then briefly turns to the pre-YL case law on the definition of ‘public authority’ to show that the courts took too narrow a view on the term before the case of Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and Another.² The chapter then turns to look at YL itself, analysing the majority’s opinions to show why they are wrong in principle, before turning to the minority opinions of Lord Bingham and Baroness Hale to show why they were correct.

14.2 LEGISLATIVE BACKGROUND

The White Paper to the Human Rights Bill was titled Rights Brought Home. In the foreword, the then Prime Minister, Tony Blair, set out his vision of the purpose of the Bill:

It [the Human Rights Bill] will give people in the United Kingdom opportunities to enforce their rights under the European Convention in British courts …

The lynchpin to being able to enforce Convention rights in the United Kingdom, and so to ‘bring the rights home’ was to be found in clause 6 of the Bill, which later became the Human Rights Act 1998, s 6. It stated in s 6(1) that ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right’. Although ‘public body’ was a term of art used in judicial review, the phrase ‘public authority’ was not a term known to English law and the government purposefully decided not to include a list or definition of the term, seeing this approach as too restrictive. In the White Paper, however, the

¹ YL v Birmingham City Council and Others (Secretary of State for Constitutional Affairs

Intervening) [2007] UKHL 27.

² Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and Another

[2003] UKHL 37.

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government gave an indication as to the scope of the phrase, and so the applicability of s 6. In it the government said:

The definition of what constitutes a public authority is in wide terms. Examples of persons or organisations whose acts or omissions it is intended should be able to be challenged include central government (including executive agencies); local government; the police; immigration officers; prisons; courts and tribunals themselves; and to the extent that they are exercising public functions, companies responsible for areas of activity which were previously within the public sector, such as the privatised utilities.³ (emphasis added)

The first sentence gives a clear statement of intent: ‘public authority’ was meant to be a ‘wide term’ and the italicised part of the paragraph really gives the key as to the breadth of application that the government intended the Human Rights Act 1998 to have. The government did not expect legal actions under the Human Rights Act 1998 to be restricted only to actions against ‘the state’ itself. It was explicitly acknowledged that some organisations, although governed by private law, may exercise public functions, and in the exercise of those functions they should act in a Convention-compatible way. Although no definition of a ‘public authority’ was included in the Act, guidance as to the extent of the applicability of s 6 to the private sector was given in s 6(3)(b) and
(5). The Act stated in those provisions that ‘In this section “public authority” includes any person certain of whose functions are functions of a public nature’, but went on to say, ‘In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private’. This led to a distinction between two different types of public authority – core public authorities, created by the use of the term ‘public authority’ in s 6(1) itself; and hybrid or functional public authorities created by s 6(3)(b) and (5). Core public authorities are not relevant for this analysis, but difficulties developed as to when a function is public and, therefore, when a private body is a public authority within the meaning of s 6(3)(b).

During the Bill’s passage through Parliament, the sponsors (the then Home Secretary, Jack Straw, in the House of Commons and the then Lord Chancellor, Lord Irvine, in the House of Lords) both made statements about the breadth of the term ‘public authority’. Jack Straw said that:

The Bill had to have a definition of a public authority that went at least as wide and took account of the fact that, over the past 20 years, an increasingly large number

³ Rights Brought Home: The Human Rights Bill, Cm 3782 (The Stationery Office, 1997),

Chapter 2.2.

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266 Part IV – Public Law

of private bodies, such as companies or charities, have come to exercise public functions that were previously exercised by public authorities.⁴

This is an explicit acknowledgement that the private sector was intended to be caught by the Human Rights Act 1998, s 6 to the extent that it was performing public functions, and by referencing the time frame ‘over the past 20 years’ Jack Straw must be taken to have been singling out those organisations that had been privatised or those services that were now contracted out. Specific reference was made by Lord Irvine LC to contracting out during the debates when he said, ‘A private security company would be exercising public functions in relation to the management of a contracted-out prison but would be acting privately when, for example, guarding commercial premises’.⁵ This acknowledges that a contracted out service can fall within s 6, although not every aspect of the company’s activity would do so.

14.3 EARLY CASES

After the Bill was passed, the matter was then left to the courts to determine the scope of the term ‘public authority’ and to apply it in individual cases. Two key cases came before the Court of Appeal in which the question was whether the service provider was a public authority for the purpose of the Human Rights Act 1998. In both cases, the court was led by the then Lord Chief Justice, Lord Woolf. In the first, Poplar Housing and Regeneration Community Association Ltd v Donoghue,⁶ the court determined that Poplar Housing was a public authority because of the degree of ‘enmeshment’ between it and the local council. The second case, R (on the application of Heather and others) v Leonard Cheshire Foundation⁷ concerned the status of the charitable organisation the Leonard Cheshire Foundation, which provided accommodation to the elderly, a significant proportion through contracting out arrangements. The claimants’ accommodation was paid for by the local council pursuant to its obligations under the National Assistance Act 1948. Some residents were privately funded. This case is particularly important as it is factually almost identical to the case of YL. In it, Lord Woolf CJ delivering the judgment of the court said:

⁴ Hansard, HC Deb, vol 306, col 773, 16 February 1998.

⁵ Hansard, HL Deb, vol 301, col 811, 24 November 1997.

⁶ Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ

595.

⁷ R (on the application of Heather and others) v Leonard Cheshire Foundation [2002] EWCA

Civ 366.

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In our judgment the role that LCF was performing manifestly did not involve the performance of public functions. The fact that LCF is a large and flourishing organisation does not change the nature of its activities from private to public.

i) It is not in issue that it is possible for LCF to perform some public functions and some private functions. In this case it is contended that this was what has been happening in regard to those residents who are privately funded and those residents who are publicly funded. But in this case except for the resources needed to fund the residents of the different occupants of Le Court, there is no material distinction between the nature of the services LCF has provided for residents funded by a local authority and those provided to residents funded privately. While the degree of public funding of the activities of an otherwise private body is certainly relevant as to the nature of the functions performed, by itself it is not determinative of whether the functions are public or private ...

iii) ... On the approach adopted in Donoghue it can be said that LCF is clearly not performing any public function.⁸

This decision, it is submitted, was wrong, but as the case is almost identical to YL, the detailed analysis is...