R (Johnson and Others) v Havering London Borough Council; YL v Birmingham City Council

JurisdictionEngland & Wales
CourtHouse of Lords
Judgment Date20 June 2007
Neutral Citation[2007] UKHL 27
Date20 June 2007

[2007] UKHL 27


Appellate Committee

Lord Bingham of Cornhill

Lord Scott of Foscote

Baroness Hale of Richmond

Lord Mance

Lord Neuberger of Abbotsbury

YL (by her litigation friend the Official Solicitor) (FC)
Birmingham City Council

and others



David Pannick QC

Ian Wise

Naina Patel

(Instructed by Irwin Mitchell)

1st Respondent:

Andrew Arden QC

David Carter

(Instructed by Birmingham City Council Legal Department)

2nd Respondent:

Beverley Lang QC

Ivan Hare

(Instructed by Lester Aldridge)

3rd and 4th Respondents:

Helen Mountfield

(Instructed by Bailey Wright & Co)


Secretary of State for Constitutional Affairs

Philip Sales QC

Cecilia Ivimy

(Instructed by Treasury Solicitor)

Justice, Liberty and BIHR

Michael Fordham QC

Jessica Simor

Iain Steele

(Instructed by Liberty)

Help the Aged and the National Council on Ageing

Rabinder Singh QC

David Wolfe

Samantha Knights

(Instructed by Help the Aged and the National Council on Ageing)

Disability Rights Commission

Robin Allen QC

David Wolfe

(Instructed by Disability Rights Commission)


My Lords,


The issue in this appeal is whether a care home (such as that run by Southern Cross Healthcare Ltd), when providing accommodation and care to a resident (such as Mrs YL, the appellant), pursuant to arrangements made with a local authority (such as Birmingham City Council) under sections 21 and 26 of 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 and is thus in that respect a "public authority" obliged to act compatibly with Convention rights under section 6(1) of that Act.


For reasons more fully given by my noble and learned friend Baroness Hale of Richmond, with whose opinion I wholly agree, I would answer that question in the affirmative. Despite the contrary opinions of my noble and learned friends, and of the Court of Appeal in R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366, [2002] 2 All ER 936, I venture to think that the answer to the question is clear. For that reason, and because the issue is an important one, I give my reasons for reaching the conclusion I do. In doing so, I shall take as read, and will not repeat, Baroness Hale's survey of the facts, the legislation, the history and the authorities.


Public authorities in the United Kingdom must not act incompatibly with a Convention right of anyone in the country. That is the effect of sections 6(1) and 1(1) of the Human Rights Act 1998. The same prohibition applies to any body which is not a public authority but certain of whose functions are of a public nature, save in respect of a particular act if the nature of that act is private. That is the effect of section 6(1) of the Act, read with sections 6(3)(b) and 6(5). Thus the question to be resolved is whether Southern Cross, as the owners and managers of the registered care home in which Mrs YL is resident, is in material respects exercising functions of a public nature not involving acts of a private nature.


Section 6 is a provision in a domestic statute, to be construed as such. Its meaning is not to be found in the Convention. The provision is found in a measure intended to give effective domestic protection to Convention rights as defined in and scheduled to the Act. It is accordingly appropriate to give a generously wide scope to the expression "public function" in section 6(3)(b), as Lord Nicholls of Birkenhead observed in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37, [2004] 1 AC 546, para 11.


As Lord Nicholls also observed in the same case, at para 12, there is no single test of universal application to determine whether a function is of a public nature. A number of factors may be relevant, but none is likely to be determinative on its own and the weight of different factors will vary from case to case. Tempting as it is to try and formulate a general test applicable to all cases which may arise, I think there are serious dangers in doing so. The draftsman was wise to express himself as he did, and leave it to the courts to decide on the facts of particular cases where the dividing line should be drawn. There are, however, some factors which are likely to be relevant, as Lord Nicholls recognised in paragraph 12 of his opinion in Aston Cantlow.


It will be relevant first of all to examine with some care the nature of the function in question. It is the nature of the function - public or private? - which is decisive under the section.


It is also relevant to consider the role and responsibility of the state in relation to the subject matter in question. In some fields the involvement of the state is long-standing and governmental in a strict sense: one might instance defence or the running of prisons. In other fields, such as sport or the arts, the involvement of the state is more recent and more remote. It is relevant to consider the nature and extent of the public interest in the function in question.


It will be relevant to consider the nature and extent of any statutory power or duty in relation to the function in question. This will throw light on the nature and extent of the state's concern and of the responsibility (if any) undertaken. Conversely, the absence of any statutory intervention will tend to indicate parliamentary recognition that the function in question is private and so an inappropriate subject for public regulation.


Also relevant will be the extent to which the state, directly or indirectly, regulates, supervises and inspects the performance of the function in question, and imposes criminal penalties on those who fall below publicly promulgated standards in performing it. This is an indicator of the state's concern that the function should be performed to an acceptable standard. It also indicates the state's recognition of the importance of the function, and of the harm which may be done if the function is improperly performed.


It will be relevant to consider whether the function in question is one for which, whether directly or indirectly, and whether as a matter of course or as a last resort, the state is by one means or another willing to pay. The greater the state's involvement in making payment for the function in question, the greater (other things being equal) is its assumption of responsibility.


It will be relevant to consider the extent of the risk, if any, that improper performance of the function might violate an individual's Convention right. In some fields, such as sport, the risk of infringing a Convention right might appear to be small; in relation to certain of the arts, the potential impact of article 10, for instance, could obviously be greater.


Certain factors are in my opinion likely to be wholly or largely irrelevant to the decision whether a function is of a public nature. Thus it will not ordinarily matter whether the body in question is amenable to judicial review. Section 6(3)(b) extends the definition of public authority to cover bodies which are not public authorities but certain of whose functions are of a public nature, and it is therefore likely to include bodies which are not amenable to judicial review. In considering whether private body A is carrying out a function of a public nature, it is not likely to be relevant that public body B is potentially liable for breach of an individual's Convention right. The effect of the Act may be that both A and B are liable. It will in my opinion be irrelevant whether an act complained of as a breach of a Convention right is likely to be criminal or tortious: the most gross breaches of the Convention - the improper taking of life, inhumane treatment, unjustified deprivation of liberty - will ordinarily be both criminal and tortious.


It is necessary to stress that no summary of factors likely to be relevant or irrelevant can be comprehensive or exhaustive. The present question may arise in widely varying contexts and on widely varying facts. Other factors may then call for consideration.


The nature of the function with which this case is concerned is not in doubt. It is not the mere provision of residential accommodation but the provision of residential accommodation plus care and attention for those who, by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them.


Historically, the attitude of the state towards the poor, the elderly and the incapable has not been uniformly benign. But for the past 60 years or so it has been recognised as the ultimate responsibility of the state to ensure that those described in the last paragraph are accommodated and looked after through the agency of the state and at its expense if no other source of accommodation and care and no other source of funding is available. This is not a point which admits of much elaboration. That the British state has accepted a social welfare responsibility in this regard in the last resort can hardly be a matter of debate.


Sections 21 and 26 of the National Assistance Act 1948 confer statutory powers and impose a statutory duty. The duty is imposed on the relevant local authority. It may be discharged by arranging for the provision of residential care in a home run by itself, or by another local authority, or by a voluntary organisation (such as the Leonard Cheshire Foundation) or by a private provider such as Southern Cross. These are alternative means by which the responsibility of the state may be discharged. Counsel for the Birmingham City Council laid great emphasis on the fact that its duty under the Act is to arrange and not to provide. This is correct,...

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