At the end of May, I wrote about an important report released by the (UK) Joint Committee on Human Rights, on the definition of ‘public authority’ for the purposes of human rights law. A Bill had been introduced that would clarify the definition, and overturn the Cheshire decision (more on all this complete with links at the original post).
The Bill began its second reading on Friday 15th, but the elephant in the room was an upcoming House of Lords case. The Government was relatively sceptical about the Bill, arguing that it was best to wait and see what the Lords said. And now, we know what they said. On a split of three to two, they have decided, in short, that the providers of contracted-out services will not be subject to the Human Rights Act as public authorities. Cheshire stands. So I assume that when the Bill returns to the House later this month, everyone will be in favour, no?
As it happens, the paragraph below represents my view of the matter (or alternatively, what the position should be):
When the 1998 Act was passed, it was very well known that a number of functions formerly carried out by public authorities were now carried out by private bodies. Section 6(3)(b) of the 1998 Act was clearly drafted with this well-known fact in mind. 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. (Lord Bingham, in dissent)
Update 1: Eoin has written about how this week is Say No To Ageism Week, and links to various bits of news and information related to the topic. Obviously, a significant feature of the above case is its impact on those persons who are in the position of relying upon the State for nursing home and post-retirement care – so seeing it in the context of work for older people (he is too modest to mention it, but Dr. O’Dell edited a book on Older People in Modern Ireland which contains various interesting essays), today’s decision is at odds with a trend towards a greater understanding of human rights and older people (although of course the House of Lords did not have that question before it).
Update 2: For some general information on the question of contracting out and human rights, try this conference paper (PDF) by Tony Prosser, or this persuasive argument made by Catherine Donnelly (now in TCD), where she concludes that:
It has been argued here that there are often good reasons for holding private contractors subject to human rights obligations. It has also been shown that this cannot be achieved effectively through contract, and that it would be preferable if s.6(3)(b) HRA were used to achieve this aim. Unfortunately, however, given the current s.6(3)(b) jurisprudence, it is difficult to envisage private contractors being considered to fall within the scope of s.6(3)(b). This leaves a huge lacuna in human rights protection. Going forward, it is to be hoped that, if applying Lord Nicholl’s criteria, the judiciary will not do so restrictively. It is also to be hoped that the judiciary will not place excessive emphasis on the presence of the contract–unlike Lord Woolf, in Leonard Cheshire, in finding that the contract severed the link to the statute. Contract is no more and no less than a mechanism for transferring a function from a governmental to a private actor. In this era of contracting-out and privatisation, it is important to keep this in mind. ( Public Law 785, Leonard Cheshire Again and Beyond; Private Contractors, Contract and s. 6(3)(b) of the Human Rights Act– only available through Westlaw or in print AFAIK
I cannot imagine that Dr. Donnelly approves of today’s outcome. Furthermore, in a recent paper at the Constitution At 70 conference in TCD last weekend, she presented a paper (which will in time be published) dealing with the Irish situation; she concludes that the development of the ‘constitutional tort’ (a notable feature of Irish constitutional law) may be necessary in a climate of privatisation and contracting-out. Indeed, given the limited incorporation of the ECHR in Irish law (where public bodies are defined even more narrowly than in the UK), it may be the only way to provide for the enforcement of rights in the brave new (economic) world.