Local Authorities and the Human Rights Act 1998

IRISH HUMAN RIGHTS COMMISSION

AND LAW SOCIETY OF IRELAND

ECHR ACT REVIEW

16 October 2004

Local authorities and the Human Rights Act 1998

Charlotte Kilroy, Matrix Chambers

Introduction

In this talk, I will give a brief overview of how the Human Rights Act 1998 (HRA) affects the activities of local authorities in the UK, and will examine in particular the approach taken by the English courts[1] to the question of who falls within the definition of public authority in the HRA. The latter question remains a matter of lively debate and has assumed particular significance in the light of government policies of privatisation and contracting-out of public services.

The Human Rights Act 1998

Section 6 of the HRA provides:

(1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right…

(3)In this section “public authority” includes-

(a)a court or tribunal, and

(b)any person certain of whose functions are functions of a public nature,

…..

(5)In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

A: The impact of the HRA on local authorities

Since the HRA came into force on 2 October 2000, its impact on local authorities has been widely felt. Local authorities have faced challenges under the HRA in relation to almost every aspect of their activities, including the provision of healthcare, housing, education, community care and social assistance, possession proceedings, licensing and planning controls[2].

A few prominent examples may serve to give some indication of the range of issues raised by the introduction of the HRA.

Impact on the common law duties of local authorities

In the case of JD and others v East Berkshire Community Health Trust [2004] Q.B. 558 the Court of Appeal considered whether the local authority owed a common law duty of care to a child in relation to a decision whether or not to take the child into care. The Court of Appeal observed that facts which had given rise to the cases before it predated October 2000 when the HRA came into force, and no claim could therefore be brought under the HRA. The Court stated, however, that it was nonetheless necessary to consider whether the introduction of the Act had affected the common law principles of the law of negligence[3].

The starting point was the pre-HRA House of Lords decision of X v Bedfordshire County Council [1995] 2 AC 633 where the court had stated that a common law duty of care could not be imposed on a statutory duty if the observance of the common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance by the local authority of its statutory duties. The court had concluded that it would not be just and reasonable to impose a duty of care on the local authority in relation to its duties to provide protection for children in need of care because:

(1)It would be almost impossible to disentangle the respective liability for negligence of all the bodies involved in protecting children at risk (police, education bodies, doctors and others);

(2)The task of the local authority and its servants in dealing with children at risk is extraordinarily delicate;

(3)If there were potential liability for damages, it might well mean that local authorities would adopt a more cautious and defensive approach to their duties;

(4)The relationship between the social worker and the child’s parents is often one of conflict and a duty of care would be likely to breed ill-feeling and often hopeless litigation which would divert money and resources away from the performance of the social service for which they were provided;

(5)There were other remedies for maladministration of the statutory system for the protection of children in statutory complaints procedures and the power of the local authorities ombudsman to investigate cases;

(6)The development of novel categories of negligence should proceed incrementally and by analogy with decided cases. As there were no such close analogies, the court should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrong doings of others[4].

Having considered a number of cases which post-dated Bedfordshire, including the House of Lords decisions of Phelps v Hillingdon London Borough Council [2001] 2 AC 619 and Barrett v Enfield London Borough Council [2001] 2 AC 550, the Court of Appeal in East Berkshire concluded that the effect of Bedfordshire had now been restricted to one core proposition: that decisions by local authorities whether or not to take a child into care were not reviewable by way of a claim in negligence[5].

The question was: was there still a justification for preserving the rule that no duty of care was owed in negligence because it was not fair, just and reasonable to impose such a duty, when children whose causes of action arose from facts which post-dated October 2000 could now bring claims under the HRA?[6] The court examined what the position was in relation to claims made by children under Articles 3 and 8 of the European Convention on Human Rights (ECHR), by reference to a number of cases heard by the European Court of Human Rights[7] (ECtHR), and in particular the case of Z v UK (2002) 34 E.H.R.R. 3, in which the ECtHR concluded that rights of the claimants in the Bedfordshire case under Articles 3 and 13 (right to an effective remedy) had been violated. The court concluded that in the context of suspected child abuse, breach of a duty of care will frequently amount to a violation of Articles 3 or 8 ECHR.[8] Based on the Strasbourg jurisprudence in cases such as Z v UK and E v UK, it was clear that in such claims under Articles 3 or 8 ECHR the court is likely to have to examine whether the local authority knew or should have known that positive action was called for, which will necessarily involve consideration of the conduct of the individuals involved, and in claims under Article 8 the court will also be required to examine the conduct of the individuals involved to see whether on the particular facts the action was ‘necessary in a democratic society’. The court concluded therefore that since litigation involving factual enquiries of the nature considered above is now a potential consequence of the conduct of those involved in taking decision in child abuse cases since the coming into force of the HRA, the reasons of policy that led the House of Lords to hold in Bedfordshire that no duty of care towards a child arises would largely cease to apply. The court stated: “In so far as the risk of legal proceedings will inhibit individuals from boldly taking what they believe to be the right course of action in the delicate situation of a case where child abuse is suspected, we think this factor will henceforth be present, whether the anticipated litigation is founded on the Human Rights Act or on the common law duty of care.”[9]

Consequently the court found that the decision in Bedfordshire could not survive the HRA and that “it will no longer be legitimate to rule that, as a matter of law, no common law duty of care is owed to a child in relation to the investigation of suspected child abuse and the initiation and pursuit of care proceedings.”[10]

Decision-making by local authorities- planning

The first three years following the coming into force of the HRA saw a flurry of cases challenging various aspects of the planning system on the basis that they violated Article 6(1) ECHR, which provides that in the determination of their civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal.

The first major target of the litigation was the Secretary of State’s role in the planning system, and in particular his power under the system to “call in” planning applications which would have been decided by local authorities and to determine them himself, and his power to recover certain types of appeals which would otherwise have been decided by a planning inspector[11]. It was argued that since the Secretary of State was responsible for devising and promoting the policy according to which the decisions were to be taken, and necessarily had political capital invested in those policies (in one case the Ministry of Defence had a financial interest in the outcome of the planning application), he was not an independent and impartial tribunal for the purposes of Article 6(1) ECHR. The Divisional Court found that the planning legislation was in violation of Article 6(1) and issued declarations of incompatibility under section 4 HRA. This decision appeared to sound the death knell for the Secretary of State’s role in the planning system, but following a leapfrogged appeal the House of Lords upheld the Secretary of State’s role in both instances.

The reasoning used by the House of Lords in reaching this conclusion, however, spawned a number of challenges to the decision-making of local authorities. In the House of Lords Lord Hoffmann had analysed the case-law of the ECtHR, and in particular the case of Bryan v UK[12]. In Bryan the ECtHR had decided that although the planning inspector who heard appeals from decisions on local authorities was not himself an independent or impartial tribunal, the procedure overall satisfied the requirements of Article 6, due to:

"the uncontested safeguards attending the procedure before the inspector: the quasi-judicial character of the decision-making process; the duty incumbent on each inspector to exercise independent judgment; the requirement that inspectors must not be subject to any improper influence; the stated mission of the Inspectorate to uphold the principles of openness, fairness and impartiality." (paragraph 46)

and because the decision of the inspector could be appealed to the High Court which, while it was not able to substitute its own findings of fact "had the power to satisfy itself that the inspector's findings of fact or the inferences based on them were neither perverse nor irrational", At paragraph 47 the ECtHR stated:

"Such an approach by an appeal tribunal on questions of fact can reasonably be expected in specialised areas of the law such as the one at issue, particularly where the facts have already been established in the course of a quasi-judicial procedure governed by many of the safeguards required by article 6(1). It is also frequently a feature in the systems of judicial control of administrative decisions found throughout the Council of Europe member states." :

Lord Hoffmann reached the following conclusions on the basis of Bryan:

117. If….the question is one of policy or expediency, the "safeguards" are irrelevant. No one expects the inspector to be independent or impartial in applying the Secretary of State's policy and this was the reason why the court said that he was not for all purposes an independent or impartial tribunal. In this respect his position is no different from that of the Secretary of State himself. The reason why judicial review is sufficient in both cases to satisfy article 6 has nothing to do with the "safeguards" but depends upon the Zumtobel principle of respect for the decision of an administrative authority on questions of expediency. It is only when one comes to findings of fact, or the evaluation of facts, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal. (emphasis added)

A number of challenges were brought were brought against local authorities on the basis of this paragraph[13] alleging inter alia that failure to allow oral representations by objectors[14], and the failure to hold a public inquiry before reaching a decision[15] was a violation of Article 6 ECHR because local authorities were called upon to make findings of fact in reaching their decisions and did not have the safeguards which Lord Hoffman had described as essential. In the case of Adlard the Court of Appeal rejected the appellant’s arguments, stating that judged as a whole the statutory scheme which underpins the planning process lay towards that end of the spectrum where judgment and discretion, rather than fact-finding played the predominant part and that in these circumstances the court would be inclined to be satisfied with a form of inquisition at first instance at which the decision-maker was more of an expert than a judge, combined with a second instance appeal in the nature of a judicial review. The court concluded therefore that there was no requirement in relation to planning decisions that a statutory scheme should provide a right to an oral hearing at the initial stage of the proceedings, although it did not rule out that, exceptionally, on the facts of an individual case, a failure to allow an oral hearing might constitute a violation of Article 6 ECHR.[16]

Leaving aside the systemic challenges to planning procedures, decisions taken by planning authorities frequently have an impact on people’s family, private lives and homes. Consequently there have been a number of challenges to planning decisions on the basis that they violate the right to respect for family and private life and home in Article 8 ECHR[17]. One recent decision deserves mention as the latest in a long line of cases which address decisions taken by local authorities against unlawfully established gypsy sites[18]. In First Secretary of State and Doe and others v Chichester District Council [2004] EWCA Civ 1248 the Court of Appeal held that the decision of the local planning authority to bring enforcement proceedings and refuse planning permission for a gypsy site was a violation of the applicants’ rights under Article 8 ECHR. Although the applicants in that case had developed the land without planning permission, the court decided that the local authority’s decision to evict them was a disproportionate interference with Article 8(1) ECHR due to the limited harm to the environment caused by the presence of the caravan site and the fact that the local authority had failed to pursue the national planning policy objective of seeking to meet the accommodation needs of gypsies.

Adapting policy- Community care

In the case of R (A, B, X, Y) and East Sussex County Council [2003] EWHC 167, Munby J considered the lawfulness of East Sussex County Council's (ESCC) policy of not permitting care staff to manually lift the applicants, A and B, who were both severely disabled. This policy had been developed in order to protect the care staff from injury, and was rooted in health and safety at work regulations. Munby J embarked upon an extensive review of the case-law of the ECtHR on Article 8 ECHR, concluding that ESCC had positive obligations under Article 8 ECHR to respect A and B’s right to private life. That right was to be understood as including both the right to human dignity, a right which was particularly enhanced when the applicants were so disabled as to be critically dependent on the help of others for even the most basic and simple tasks of day-to-day living, and the right of the disabled to participate in the life of the community and have access to essential economic and social activities and to an appropriate range of cultural and recreational activities.

Munby J found that due to ESCC’s positive obligation to ensure that the Article 8 rights of disabled people for whom it is responsible are respected, a policy which imposed a blanket prohibition on manual lifting was likely to be unlawful. Munby J also set out a number of circumstances in which it was likely to be unlawful for carers to refuse to carry out manual lifts even where those lifts are hazardous to the carer’s physical safety.[19] In issuing protocols on manual lifting under the health and safety regulations, Munby J stressed that Article 8 ECHR must be taken into account, and that a balancing exercise between the rights of the carer and the rights of the disabled person must therefore be carried out by the employer.[20] Munby J stated that ESCC should indicate the outcome of this exercise in detailed guidance in the protocols governing the kinds of situations which might arise[21].

B: The definition of a public authority

All of the examples given above concern what are known as ‘pure’ public authorities, bodies whose public nature is unquestioned[22]. Section 6 HRA makes clear that these authorities (government departments, local authorities and the police) are required to comply with Convention rights in all their activities, whether in their contractual relations with staff or private contractors, or in the provision of public services.

The HRA, however, does not limit the obligation to comply with the Convention rights to “pure” public authorities. Section 6(3)(b) HRA, provides that a public authority includes ‘any person certain of whose functions are functions of a public nature.’ Section 6(5) provides that those bodies who are public authorities for the purposes of section 6 of the HRA because certain of their functions are functions of a public nature, will not be public authorities if the nature of the act complained of is private.

Section 6(3)(b) and section 6(5) of the HRA therefore create a category of public authority which is obliged to comply with the Convention in relation to those functions which it carries out which are of a public nature, but not in relation to acts whose nature is private.