The Human Rights Act 1998 confers a range of protections against the infringement of so-called 'Convention rights' by a group of entities known under the Act as "public authorities". But what are public authorities for this purpose and how can we identify them in a society in which traditional concepts of the state and the public sector are increasingly irrelevant?
The question is far from academic, as a range of high profile cases brought before the UK courts (notably Poplar Housing (Popular Housing and Regeneration Community Association Ltd v Donoghue  EWCA Civ 595), Leonard Cheshire (R. (on the application of Heather) v Leonard Cheshire Foundation  EWCA Civ 366) and Aston Cantlow (Aston Cantlow and Wilmcote with Billesley Parochial Chuch Council v Wallbank  UKHL 37) have demonstrated. Whilst the situation is relatively clear as regards 'core' public authorities (such as central and local government, the armed forces etc) there remains significant uncertainty as regards other bodies, referred to as 'hybrid' or 'functional' public authorities, which are described by section 6(3)(b) of the Act as, "any person certain of whose functions are functions of a public nature".
Perhaps the area which has thrown up the most fraught questions under section 6(3)(b) is that of housing and social care, particularly where local authorities have sought to 'contract-out' the provision of these sensitive services to private companies. Users of such services are naturally concerned that such transactions may undermine the rights and protections they would otherwise enjoy (against the 'contracting-out' body) under the Act.
The joined cases of Johnson v. London Borough of Havering (R. (on the application of Johnson) v Havering LBC  EWCA Civ 26) and YL v. Birmingham City Council (YL v. Birmingham City Council  EWCA Civ 26  EWCA Civ 26) (decided by the Court of Appeal at the end of January 2007, represent an important step in the journey towards a clearer legal settlement for those involved in such situations, not least because the issues in the case will now be reviewed by the House of Lords, provided their Lordships with their first opportunity to provide definitive guidance on the application of section 6(3)(b) in the contracting-out context.
The facts and arguments in Johnson and YL
The two cases essentially concerned the contracting-out of care home provision by the relevant local authorities under the National Assistance Act 1948.
In Johnson, a resident of a local authority care home objected, on Human Rights Act grounds, to a private sector provider taking charge of her care. In essence, she argued that the transfer of responsibility to the private provider would entail the undermining or diminution of her rights under Article 8 ECHR.
In YL (YL v. Birmingham City Council  EWCA Civ 26  EWCA Civ 26), the resident of a private care home sought relief under Article 8 ECHR against the home in respect of certain aspects of her treatment. Her case depended on the assertion that the care home was a public authority under section 6(3)(b) of the Act. In making such an assertion, Mrs YL was challenging the Court of Appeal's previous ruling in Leonard Cheshire (R. (on the application of Heather) v Leonard Cheshire Foundation  EWCA Civ 366) which had held, in similar circumstances, that a private care home without statutory powers which did not 'stand in the shoes' of the relevant local authority under the 1948 Act could not be said to be exercising 'public functions' within the meaning of section 6(3)(b). The basis for this challenge was the House of Lords decision in Aston Cantlow (Aston Cantlow and Wilmcote with Billesley Parochial Chuch Council v Wallbank  UKHL 37) which, according to Mrs YL, had implicitly overruled the approach taken in Leonard Cheshire.
Disposal of the appeals
The Court of Appeal dealt, first, with the Johnson appeal by ruling that the mere transfer of the appellant's care from public to private sector could not amount to a breach of her Article 8 rights.
According to the Court, Article 8 did not require that any particular type or quality of care is provided by a local authority under the 1948 Act. Moreover, the Court found that the appellant's Article 8 rights had no fixed content against which to assess the quality of care provided in either public or private sector context. Finally, the Court pointed out that, notwithstanding the transfer of provider, the local authority remained accountable under Article 8 in respect of her ongoing care and protection.
Turning to YL, the Court carefully assessed the Leonard Cheshire ruling in light of Aston Cantlow, but concluded that it remained bound by its own previous ruling in the circumstances. That inevitably led to the dismissal of YL's challenge. Nonetheless, Buxton LJ offered a personal view of the position he would have taken had he not been so bound. In his opinion, private care home providers were so closely integrated into, and dependent upon, the work of their client local authorities (as well as being subject to stringent oversight by them) that they could well be seen to exercise public functions under the Human Rights Act.
However, he was not prepared to hold that, as a public authority, a private care home provider would be subject to the same Article 8 obligations as the relevant local authority. Some qualifications were necessary in his view to take into account the difficulty of applying Convention rights, devised for use against sovereign governments, against otherwise private entities. In his view, "[t]he question to be asked in any given case should, therefore, be whether it is necessary for the protection of the claimant's Convention rights that the body concerned should be held to be a public authority against which those rights can be directly asserted". In Article 8 cases, he suggested, the answer to this question might be difficult to answer.
Perhaps the most interesting aspect of this case is the suggestion by Buxton LJ of what might be described as a 'partnership approach' to the protection of Convention rights in the contracted-out context.
Under this approach, there may well be more than one public authority against whom a person might be able to assert his or her Convention rights. However, those authorities can be seen as sharing responsibility, in a dynamic sense, for the protection of those rights. Remedies awarded by the court in such cases should take into account the 'instrumental' nature of section 6 of the Human Rights Act and allocate responsibility amongst the relevant authorities to the extent necessary to protect the claimant.
Buxton LJ recognised that this approach might be "an unattractive invitation to further litigation", as to the proper allocation of shared Convention obligations. But perhaps this will eventually be seen as the inevitable price to be paid for drawing private providers into the public authority 'net'.