Human Rights Act 1998 (Meaning of Public Authority) Bill

I beg to move, That the Bill be now read a Second time. The purpose of the Bill is to clarify ““public authority”” in section 6 of the Human Rights Act 1998 to ensure that, when the private sector carries out public functions—for example, in contracted-out care for the elderly—the Act will apply. Although the Joint Committee on Human Rights, which I chair, has not formally endorsed the Bill, many members of the Committee support it. It implements one of the key recommendations in our recent report on the meaning of ““public authority”” under the Human Rights Act. It has been immensely important that the Human Rights Act brought home the rights set out in the European convention. Before the Act came into force, British people had to go to Strasbourg to tackle breaches of their human rights. However, in one respect, the protection that the Act affords has been less comprehensive than Parliament intended. The problem has arisen because of the development of case law interpreting the meaning of ““public authority”” in the Act. Under section 6, it is unlawful for a public authority to act in way that is incompatible with a convention right. The Act does not provide a list of public authorities to which it applies. Instead, it states that a public authority includes"““any person certain of whose functions are functions of a public nature””." During the measure’s passage, statements by the then Home Secretary and Lord Chancellor made it clear that privatised or contracted-out public services were intended to be brought within its scope. We were told that the public function definition emphasised the functions rather than the institutional status of the body performing them. For example, a private security company that ran a prison under contract with the Government would be deemed to perform a public function within the scope of the Act. However, when a private security company provides a service to another private company, the Act does not cover it. Since the Act came into force, a series of court cases have turned on whether a specific private company or organisation that provided services came within the ambit of the Act. The result has been to undermine and even overrule the comprehensive and wide interpretation of public authority that was originally intended. One specific case has left utter confusion about the matter. It is the 2002 case, which is commonly known as the Leonard Cheshire case. The local authority-funded residents of a care home run by the Leonard Cheshire Foundation, which is a private charity, wanted to challenge the decision to close the home and disperse the residents. They claimed that that broke their right to respect for their home under article 8 of the European convention. However, the Court of Appeal found that the managers of the care home were not a public authority under the definition in section 6. Residents could not, therefore, enforce their human rights against the care home, even though the council still had its obligations under article 8, regardless of its contract with Cheshire Homes. In 2004, after reviewing that judgment and other cases, which had turned on the definition of public authority, the Joint Committee on Human Rights concluded that the test being applied by the courts was ““highly problematic””. It resulted in many instances of an organisation"““standing in the shoes of the State””," but without responsibility under the Human Rights Act. That had led to a ““serious gap”” in the protection that the Act was intended to offer.