Public functions and private services: A gap in human rights protection

Abstract

Private organizations are deeply entrenched in fulfi lling the responsibilities of government through the provision of public services. In this context, we must question the conceptual coherence of drawing sharp distinctions between public and private functions. In YL v Birmingham City Council, however, the House of Lords had to determine which of the various functions contracted out by public authorities retain their public character for the purposes of the United Kingdom’s Human Rights Act 1998. This article analyzes the complex public/private division set up by the Human Rights Act and argues that the decision of the House of Lords has led to a gap in human rights protection and has weakened public accountability. Public functions and services traditionally carried out by public entities have been transferred increasingly to the private sector. 1 In the United Kingdom, policies such as privatization, outsourcing, and public/private projects under the Private Finance Initiative 2 have altered dramatically the way in which public services are delivered. Although these policies cover a variety of activities and varying arrangements, they typically share three features: the transfer of public functions, with the associated delivery risk, to private entities; the use of market-style competition to select the supplier; and a shift in the measurement of performance — from a concern with process to the achievements of outputs. “ Internal markets ” have been introduced into the provision of such fundamental public services as health and education, organized around a separation between “ purchasers ” and “ providers ” and governed by sophisticated commercial contracts. 3 Prisons and immigration centers are managed by