Inept and Secretive

Well, if you're going to be inept it's probably best to be secretive about it, isn't it? It seems that certain people haven't been secretive enough and the Constitutional Affairs Committee has blown their cover, while saying that the role of the Attorney General is "not sustainable" in its present form. The full report is due next Thursday, by which time we should also have seen Baroness Scotland's consultation paper on the future of her office. Until then I can only speculate about whether it will call for a better grade of ineptitude, one that is even more secretive and thus better at cover-ups.

Head of Legal has already commented several times on possible reforms of the post of Attorney General, for instance Brown's constitutional package, Pat it is indeed, Goldsmith's injunction against BBC and David Pannick and Attorney General, so I won't add anything else until the consultation paper and report are published next week.

Update: By way of a brief update free from any attempt at analysis, here are the consultation document and report as promised, as well as few other vaguely relevant links.

Consultation Press Release
A Consultation on the role of the Attorney General
Constitutional Role of the Attorney General
Times article
The creation of the Ministry of Justice
Scrutiny of Constitutional Reform

Reflections and Musings on YL v Birmingham

Publawyer has been on his holidays with his lovely wife for a little while, so things have been even quieter here than usual (possibly even reaching tumbleweed levels), but between them Nearly Legal and Head of Legal seem to have covered pretty much all the interesting issues while I've been away. Nearly Legal's extensive Blawg review (I counted a bumper crop of 46 links, including one to this humble effort - Thanks NL!) is particularly worth checking. While I've been away I have been thinking a little bit about the recent YL decision. Head of Legal thinks it's quite correct, but I can't agree with that. This is a very important judgment, so this post should be a little bit more detailed and reasoned than normal, possibly with an eye on these guidelines.

Firstly, a bit of background for anyone new to the whole "public authority" debate. Section 6(1) of the Human Rights Act 1998 states that “[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right”, therefore the concept of a “public authority” is crucial to the reach and effectiveness of the Act. “Public authority” has never been adequately defined, but the HRA effectively recognises that there are two different types of public authority – core public authorities and hybrid public authorities, although this terminology is not used in the Act. A core public authority, such as a local authority or the police, must not act in a way which is incompatible with a Convention right, unless one of the section 6(2) exemptions applies (which is essentially when other primary legislation conflicts with Convention rights). A hybrid public authority is one which carries out some “functions of a public nature” (s.6(3)(b)), but is exempted for particular acts if they are private (s.6(5)). The meanings given to “functions of a public nature”, and to a lesser extent section 6(5)’s “private acts”, are key to determining the scope of the HRA. These questions have come before the courts several times, such as in Poplar Housing v Donoghue, Heather v Leonard Cheshire Foundation, Hampshire v Beer and Aston Cantlow and now most recently in YL v Birmingham. The 3:2 majority decision in YL is a clear blow to advocates of an expansionist approach to the HRA or one based on increasing its effectiveness rather than limiting its scope. The House of Lords held that a care home, operated by Southern Cross, providing care and accommodation to the elderly, which had been arranged by the local authority under the National Assistance Act 1948, was not carrying out functions of a public nature. While this has obvious implications for anyone in the same position as Ms YL (possibly as many as 300,000 people according to one BBC report), the effects will also be wider than this. While there is still no single definitive test of what makes a function public in nature the judgment must inevitably restrict the number of functions that can be considered to be so.

Whether this is correct can be examined from two perspectives, both of which are contentious, but one of which is probably clearer than the other.

Policy

Firstly, is this right as a matter of public policy? In other words, regardless of the legal correctness of the decision, is this the way things should be? The better view, as a matter of principle, is surely that Southern Cross is carrying out functions of a public nature and section 6(3)(b) therefore applies, although the section 6(5) exemption may still be relevant in certain circumstances. This conclusion is the only one that gives full effect to the HRA and is based on the simple premise that the provision of care and accommodation to the elderly, whether fully or partly funded by a local authority, is a public function. This is the view laid out in the opinions of Lord Bingham at para 19 and Baroness Hale at 61-72. Therefore, even though Southern Cross is operating as a profit making enterprise, residents placed in one of its homes by a local authority are entitled to the protection of the HRA. It has been suggested that protection for residents like Ms YL is best entrusted to a contractual approach, but this does not give an adequate level of protection for some of the most vulnerable members of society (see Paul Craig, ‘Contracting Out, the Human Rights Act and the Scope of Judicial Review’, Law Quarterly Review, 2002 and Catherine M Donnelly, ‘Leonard Cheshire Again and Beyond: Private Contractors, Contract and S.6(3)(B) of the Human Rights Act’, Public Law, 2005). As a matter of policy this expansionist approach to “public functions” is that preferred by the Joint Committee on Human Rights and seemingly the DCA. It also surely reflects Parliaments intentions in passing the Act in 1998.

Law

Even if we accept that in a perfect world the public good and public policy are best served by Southern Cross being viewed as carrying out functions of a public nature, the second question to be asked of the YL judgment is whether it is correct as a matter of law. As the HRA did not define “functions of a public nature” the courts are effectively being asked to decide what can be considered to be public on a function by function basis, as recognised by Lord Nicholls at para 12 of Aston Cantlow and Lord Bingham at para 5 of YL. Lord Neuberger acknowledges at para 128 that the test applied in any individual case will be constructed to justify a policy based decision. The majority have clearly reached a view on the policy and they don't agree with me. Be that as it may, have they reached the legal decision within the loose framework that the legislation and previous decisions have defined? On the face of it the judgments appear to acknowledge the criticisms of earlier decisions which concentrated too much on the nature of the institution in question. Instead they appear to analyse the function concerned. However, on closer inspection the majority appear to have been too influenced by the nature of Southern Cross as an institution, reflecting their opinions on the policy forces behind this issue. So in all three opinions of the majority it is possible to detect a thread running through them which is concerned with Southern Cross as an institution, and a profit-making institution at that. This is most noticeable in Lord Scott's speech at para 26 and Lord Mance's at para 117, but it runs deeper in the majority's thinking than simply those two paragraphs. That is why Lord Neuberger can list seven factors that suggest Southern Cross was performing a public function (para 154) and still discount them all. While he rightly states that none of these factors are on their own sufficient (at least with the HRA as it currently is), he is, with respect, not giving them sufficient weight when considered together. This is how this judgment has effectively raised the bar for other functions. Despite this it is difficult to say, when no prior definition exists, that they have got this completely wrong. As a matter of law it seems that this function could have quite easily been public or private (or perhaps there's a third category - non-public) and it all comes down to the circularities inherent in a policy-driven definition which is supposed to prove that policy.

It is tempting to draw the conclusion that the majority are basically saying that both interpretations may be valid, but because they don't like one of them the legislation should have been more explicit (as an aside here, notice that Lord Bingham praises the draftsman's wisdom at para 5, while Lord Neuberger criticises the drafting at para 130). In defence of the majority here, that is perhaps not a wholly unreasonable stance to take. Prior to the HRA Ms YL would clearly have had no domestic action against either Southern Cross or Birmingham in defence of her Convention rights. The HRA would clearly give her rights against Birmingham if they were accommodating her, but as the position is not clear with regards to Southern Cross then perhaps the pre-HRA position can be viewed as unaltered. Still, this only works if you don't see care and accommodation for the elderly as a public function.

Solutions?

The problem still remains though - how can this be phrased in the HRA or what else can be changed? This of course is only relevant if you accept my proposition that YL runs counter to the prevailing policy. I have already mentioned my support for the Human Rights Act 1998 (Meaning of Public Authority) Bill and I still believe that this would be a useful clarification to support the underlying policy, but it wouldn't actually have helped Ms YL in this case. The minimum requirement on Birmingham CC under the 1948 Act is simply to arrange her accommodation and they haven't contracted out the arrangement, so unless there is to be an incredibly semantic debate about whether "provision" necessarily includes "arrangement" we probably haven't advanced very far, at least in terms of care homes. Some situations were hinted at in passing in YL which this Bill would affect, so I still believe it has its merits. Beyond that, the Joint Committee on Human Rights has looked into this twice before, in the 7th report of 2003/04 and the 9th report of 2006/07. They considered four possible ways forward:

• Amending legislation
• A contractual approach
• Guidance
• Judicial interpretation

Their preferred solution in 2004 was to allow the interpretation of section 6 to develop in the courts, but that die has been well and truly cast now. This possibility was recognised at para 116 of the 2007 report and the more recent report concluded that new legislation would be necessary. If there is a strong feeling that this particular case is wrong then a simple amendment to the National Assistance Act stating something like "acts carried out in accordance with these sections shall be considered to be functions of a public nature for the purposes of the Human Rights Act". This then causes a knock-on problem in that roughly similar acts which don't have any such statement about them may well be considered not to be public functions precisely because they will be seen to have been excluded and then we're into the problem of having to list every single public function or authority, which is awkward for a concept which Lord Mance rightly regards as not being immutable. This approach has been ruled out by the Joint Committee in terms of listing all public authorities, but they have given some limited support to the possibility of amending specific Acts to state that a particular function is public. My tentative suggestion is a combination of a broader definitional clarification, such as the Chairman's bill, coupled with specific amendments for oddities such as the arrangement of care and accommodation under the National Assistance Act. This may then provide appropriate guidance and framework for the courts to re-examine the concepts and ensure that the original intention of Parliament in 1998 is not frustrated.

Apologies if that wasn't all quite as considered and structured as first promised, it's been a long while in the typing.

There is also a very worthwhile commentary from 1 Crown Office Row here (registration might be needed, I get straight in, but that might be because of cookies).

A few other random links:

• BICL is hosting a seminar on Al Skeini for anyone who is interested.
• Clare Short has shared some thoughts on Gordon Brown's proposed constitutional reforms.
• Constitutional Affairs Select Committee has been very critical of new FOI proposals.
• The Joint Committee of Human Rights has published its 16th report, 'Monitoring the Government's Response to Court Judgments Finding Breaches of Human Rights', and also made the Government's response to the report on Asylum Seekers available.
• The Grand Chamber of the European Court of Human Rights has begun hearing Saadi v Italy.
  
• Finally, researchers might be interested in the Nuffield Foundation's relatively new research initiative on Administrative Justice.