Human rights protection: care services, marriage, chancel repairs . . . . . . .

The Care Bill [HL], which seeks to:

“[m]ake provision to reform the law relating to care and support for adults and the law relating to support for carers; to make provision about safeguarding adults from abuse or neglect; to make provision about care standards; to establish and make provision about Health Education England, [HEE]; to establish and make provision about the Health Research Authority; and for connected purposes”,

was given a second reading on 21 May. The Bill was carried over from the previous parliamentary session, during which the joint Bill Committee recommended [at #93] that as a result of the decision in YL v City of Birmingham Council, (2007) UKHL 27 [1],

“[t]he draft Bill should be amended to ensure that private and third sector providers of care services regulated by public authorities are deemed to be performing public functions within the meaning of section 6(3)(b) of the Human Rights Act 1998.”

In its response the government indicated its intention [1] to rely upon existing legislation rather than amend the Bill, and when questioned by Baroness Campbell of Surbiton during the second reading, [at col. 358], Lord Mackay of Clashfern, [at col.760], responded:

“[t]he noble Baroness, Lady Campbell, has already mentioned the human rights point. The Joint Committee suggested that this should be put in, and I adhere to this matter being looked at in Committee in due course.”


The YL case identified a specific lacuna in relation to health care, and the opportunity to close this loophole during the passage of the Care Bill has been explored by Sanchita Hosali and Helen Wildbore in a recent post on the UKHR blog. They explain that s6 Human Rights Act 1998 imposes a legal duty to respect, protect and fulfill certain ECHR human rights on public authorities and those performing “public functions”.  The Act does not define “public functions”, and as a consequence it has been difficult to identify which of the many private bodies, such as companies and charities undertaking activities formerly exercised by public authorities, are subject to the duty.  In YL v Birmingham City Council & ors, the court held by a majority of 3 to 2 that the private care home in question was not a functional public authority.

However, the issue of a non-governmental body performing “public functions” is not restricted to the care sector, and examples in the areas of law and religion include the case of Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank & or which addressed the issue of chancel repair liability. More recently the applicability of the duty was considered in relation to Baroness O’Cathain’s “prayer to annul debate” [HL Hansard 15 December 2011 Col 1408], on marriage and civil partnership ceremonies in religious premises. In an earlier post we considered this in the context of the proposed UK Bill of Rights.

In view of the issues raised by uncertainties in the application of the term, it has been considered on a number of occasions: by the Joint Committee on Human Rights in “The Meaning of Public Authority under the Human Rights Act” in 2003-04, here; 2006-07, here; the Ministry of Justice in its belated response to the latter in 2009, here; and in addition in an unsuccessful Private Member’s Bill in 2009-10, which sought to provide clarification, here.

Any future consideration would therefore need to address a wide range of issues and the associated case law.  Given the government’s unwillingness to address some of the thornier issues associated with same-sex marriage – non-consummation or breakdown through adultery – it seems likely that in the case of health care protection, it will fall back on its earlier position of reliance on existing legislation, and a more wide ranging examination of this problematic area will be avoided.

[1] “[t]he Government’s position has been that all providers of publicly arranged health and social care services, including those in the private and voluntary sectors, should consider themselves to be bound by the duty imposed by section 6 of the Human Rights Act 1998 not to act in a way that is incompatible with a Convention right. The CQC as the regulator is bound by the Human Rights Act 1998 and has a positive obligation to ensure that individuals are protected, which is reinforced by its enforcement powers in the Health and Social Care Act 2008. This obligation covers all individuals who receive care and support and not just those whose care is publicly arranged.”

“The Health & Social Care Act 2008 strengthened regulatory powers to ensure that the CQC can enforce regulatory requirements that are in line with the spirit of the relevant provisions of the European Convention. This applies to all providers of regulated care and all service-users, whether publicly or privately funded. These requirements should ensure that everyone receives care that conforms to the spirit of the Convention rights.”

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