THE LIABILITY OF 'FUNCTIONAL PUBLIC AUTHORITIES' FOR BREACH OF ECHR RIGHTS: THE HOUSE OF LORDS ENDORSES A PALPABLE GAP IN HUMAN RIGHTS PROTECTION

Abstract

In Y.L. and Others v. Birmingham City Council and Others (Secretary of State for Constitutional Afflairs intervening), the House of Lords had its first opportunity since the Court of Appeal decision in R. v. Leonard Cheshire Homes, ex parte Heather and Others (Leonard Cheshire) to consider whether the provision of residential care services by a privately owned care home constituted a ‘function of a public nature’ within the meaning of section 6(3)(b) of the Human Rights Act 1998 (HRA), thereby subjecting the care home to public law duties to act compatibly with rights in the European Convention of Human Rights (ECHR). In answering that question the majority in the House of Lords followed the restrictive approach of the Court of Appeal in the Leonard Cheshire case. Thus, focusing predominantly on the implications of a generous interpretation of section 6(3)(b) for local authority contractors in the residential care market, the majority refused to accept that in drafting section 6(3)(b) HRA, government had intended that providers of a wide range of publicly funded health and welfare services would be subject to positive obligations to act compatibly with the ECHR rights, whether services were provided in the private or public sectors.