Public Sector contractors and the Human Rights Act - Issue to watch
In edition 16 of our newsletter, Partnership Prospects (published Spring 2008),
we discussed the case of YL v. Birmingham City Council and the increasingly blurred
line between the public and private sectors when it comes to their obligations under
the Human Rights Act (the “HRA”).
In that case the House of Lords decided by a 3:2 majority that the Human Rights
Act did not apply to a private care home that cared for publicly funded residents.
The Lords viewed the relationship between the residents and the care home as being
private in nature. The commercially operated care home did not come within the definition
of “public authority” under the HRA so therefore was not subject to the act’s provisions.
This issue has become topical again following certain sections of the Health and
Social Care Act 2008 coming into force on 1 December 2008; and again this year as
a new Bill received its first reading in the House of Commons on 26 January.
Under the Health and Social Care Act, providers of certain social care functions
are now considered to be within the scope of the HRA. This has closed the gap that
was left after the judgement in YL v. Birmingham City Council, and had been predicted
by many since that judgement was given.
The new Bill, the “Human Rights Act 1998 (Meaning of Public Authority) Bill”, seeks
to take the extension of the HRA introduced under the Health and Social Care Act
even further. The proposed wording of the Bill provides that a private sector individual
or body could be classed as a “functional” public authority for the purposes of
the HRA if it undertakes a function which is performed “pursuant to a contract or
other arrangement with a public authority which is under a duty to perform that
function.”
This could have far reaching implications for organisations that provide services
for public authorities and would not usually consider themselves public in nature.
Such organisations may now become subject to aspects of public law, not just the
ordinary commercial laws governing the relationships that they have entered into.
For example, in a situation such as that in YL v. Birmingham CC described above,
a private care home operator may now find their freedom to remove a disruptive resident
restricted due to the additional ability of the resident to make a claim under human
rights legislation.
This Bill comes at a time when public authorities are increasingly seeking to contract
out many of their services to both the private and third sectors in an effort to
improve service delivery and efficiency.
The second reading of the Bill is scheduled for Friday 3 July and we will be watching its progress with interest.
If you would like to discuss the implications of the legislation please contact
Matthew Wolton.
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For More Information Contact:
Matthew Wolton
TPP Law Limited
53 Great Suffolk Street
London SE1 ODB
t 020 7620 0888
f 020 7620 0778
e info@tpplaw.co.uk
Email:
Matthew
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