COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE FORBES
Strand, London, WC2A 2LL
B e f o r e :
Lord Justice Buxton
Lord Justice Dyson
| JOHNSON and others
|- and -
|THE LONDON BOROUGH OF HAVERING
THE SECRETARY OF STATE FOR CONSTITUTIONAL AFFAIRS
THE NATIONAL CARE ASSOCIATION
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Mr Roger McCarthy QC and Mr Jason Coppel (instructed by the London Borough of Havering) for the Respondent
Mr Philip Sales QC and Ms Cecilia Ivimy (instructed by The Solicitor to Her Majesty's Treasury) for the First Intervener
Ms Cherie Booth QC and Professor Aileen McColgan (instructed by Lester Aldridge) for the Second Intervener
Crown Copyright ©
Lord Justice Buxton:
The nature of the appeals
in providing care and accommodation for [Mrs YL]…exercising a public function for the purposes of section 6(3)(b) of the [1998 Act]
The form of this judgment
Johnson: does the transfer of care homes from Havering to the private sector engage the Convention in any event?
The argument for the appellant, and Forbes J's response to it
By transferring the Appellants out of their care into the hands of private carers, [Havering] would be removing or diminishing the rights that they formerly guaranteed to the Appellants. The Appellants would no longer be able to rely on direct breaches of their substantive rights as against either [Havering] or the private carer, for example breaches of their rights under Articles 2, 3, 8, 9, 10 and 14. The only enforceable rights they would have would be in relation to breaches of [Havering's] 'positive obligations' towards them. They would have no effective rights as against their carers. That constitutes a fundamental and material diminution (and indeed in certain cases, negation) of their existing rights. Accordingly, in discharging its statutory obligations to the Appellants under sections 21 and 26 of [the 1948 Act], [Havering] would be failing to ensure real and effective protection of their rights and so be acting incompatibly with the Convention and unlawfully under section 6 of the [1998 Act]
And the Grounds went on to contend that Havering's proposal to require care homes by contract to respect the residents' rights would be ineffective in any event.
the short answer to this particular issue is that after any such transfer, the claimants will still continue to enjoy the very same Convention rights as against the Council as they do at present. The Council, as a core public authority, has an obligation to act compatibly with the claimants' Convention rights (see Section 6(1) of the HRA 1998), which may be enforced by anyone who is a "victim" of any breach of those Convention rights. A transfer of the homes to the private sector does not absolve the Council of its duty under Section 6(1) to act compatibly with Convention rights, including the Convention rights of the claimants. Thus, if a transfer does take place, the Council will continue to be obliged to take appropriate steps (for example) to safeguard the lives of the claimants, to protect them from inhuman and degrading treatment and to safeguard their private and family life, home and correspondence. The real and effective protection of the claimants' rights will continue to be ensured by the Council and, if necessary, by the Courts. In short, transfer from local authority to private sector accommodation does not, in principle, lead to the residents' Convention rights being either diminished or removed. In effect, the residents will continue to retain their Convention rights' protection under the HRA 1998 in the same way and to the same extent as previously.
Article 8 in the present case
Some wider considerations
in the case of one or more provisions of…. primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights the authority was acting so as to give effect to or enforce those provisions.
But the argument for Mrs Johnson is and has to be that it is never open to a local authority to exercise its section 26 powers; so section 26 cannot be read or given effect compatibly with the alleged Convention rights. The local authority is accordingly protected from its alleged breach of the Convention by the fact that in privatising the homes it is giving effect to section 26. The only way out of that dilemma for the appellants, if their case is otherwise correct, would be a declaration of incompatibility in respect of section 26: which the appellants conspicuously did not seek from Forbes J.
YL: is the private care home a public authority under section 6(3)(b) of the 1998 Act?
The task of this court
any person certain of whose functions are functions of a public nature
and section 6(5) which provides that
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.
 The fact that a body performs an activity which otherwise a public body would be under a duty to perform cannot mean that such performance is necessarily a public function. A public body in order to perform its public duties can use the services of a private body. Section 6 should not be applied so that if a private body provides such services, the nature of the functions are inevitably public. If this were to be the position, then when a small hotel provides bed and breakfast accommodation as a temporary measure, at the request of a housing authority that is under a duty to provide that accommodation, the small hotel would be performing public functions and required to comply with [the 1998 Act]….
 The purpose of section 6(3)(b) is to deal with hybrid bodies which have both public and private functions. It is not to make a body, which does not have responsibilities to the public, a public body merely because it performs acts on behalf of a public body which would constitute public functions were such acts to be performed by the public body itself. An act can remain of a private nature even though it is performed because another body is under a public duty to ensure that the act is performed.
i) While section 6 of [the 1998 Act] requires a generous interpretation of who is a public authority, it is clearly inspired by the approach developed by the courts in identifying the bodies and activities subject to judicial review. The emphasis on public functions reflects the approach adopted in judicial review by the courts and textbooks since the decision of the Court of Appeal in [Datafin  QB 815].
ii) Tower Hamlets, in transferring its housing stock to Poplar, does not transfer its primary public duties to Poplar. Poplar is no more than the means by which it seeks to perform those duties.
iii) The act of providing accommodation to rent is not, without more, a public function for the purposes of section 6.
iv) [(v) in the original] What can make an act, which would otherwise be private, public is a feature or combination of features which impose a public character or stamp on the act….The more closely the acts that could be of a private nature are enmeshed in the activities of a public body, the more likely they are to be public…
v) [(vi) in the original] The closeness of the relationship which exists between Tower Hamlets and Poplar. Poplar was created by Tower Hamlets to take a transfer of local authority housing stock; five of its board members are also members of Tower Hamlets; Poplar is subject to the guidance of Tower Hamlets as to the manner in which it acts towards the defendants.
While activities of housing associations need not involve the performance of public functions, in this case, in providing accommodation for the defendants and then seeking possession, the role of Poplar is so closely assimilated to that of Tower Hamlets that it was performing public and not private functions. Poplar is therefore a functional public authority, at least to that extent. We emphasise that this does not mean that all Poplar's functions are public. We do not even decide that the position would be the same if the defendant was a secure tenant. The activities of housing associations can be ambiguous. For example, their activities in raising private or public finance could be very different from those that are under consideration here. The raising of finance by Poplar could well be a private function.
In our judgment the role that LCF was performing manifestly did not involve the performance of public functions. The fact that LCF is a large and flourishing organization does not change the nature of its activities in private to public.
(i) It is not in issue that it is possible for LCF to perform some public functions and some private functions. In this case it is contended that this was what has been happening in regard to those residents who are privately funded and those residents who are publicly funded. But in this case except for the resources needed to fund the residents of the different occupants of Le Court, there is no material distinction between the nature of the services LCF has provided for residents funded by a local authority and those provided to residents fund privately. While the degree of public funding of the activities of an otherwise private body is certainly relevant as to the nature of the functions performed, by itself it is not determinative of whether the functions are public or private…. (ii) There is no other evidence of there being a public flavour to the functions of LCF or LCF itself. LCF is not standing in the shoes of the local authorities. S26 of the 1948 Act provides statutory authority for the actions of the local authorities but it provides LCF with no powers. LCF is not exercising statutory powers in performing functions for the appellants. (iii) In truth, all that [counsel for the claimants] can rely upon is the fact that if LCF is not performing a public function the appellants would not be able to rely upon art 8 as against LCF. However, this is a circular argument. If LCF was performing a public function, that would mean that the appellants could rely in relation to that function on art 8, but, if the situation is otherwise, art 8 cannot change to the appropriate classification of the function. On the approach adopted in [Donoghue] it can be said that LCF is clearly not performing any public function.
The case concerned a seven-year-old boy receiving corporal punishment from the headmaster of an independent school. The [ECtHR] made it clear that the state cannot absolve itself of its Convention obligations by delegating the fulfilment of such obligations to private bodies or individuals, including the headmaster of an independent school. However, if a local authority, in order to fulfil its duties, sent a child to a private school, the fact that it did this would not mean that the private school was performing public functions. The school would not be a hybrid body. It would remain a private body. The local authority would, however, not escape its duties by delegating the performance to a private school. If there were a breach of the Convention, then the responsibility would be that of the local authority and not that of the school.
I turn next to consider whether a [PCC] is a hybrid public authority. For this purpose it is not necessary to analyse each of the functions of a [PCC] and see if any of them is a public function. What matters is whether the particular act done by the plaintiff council of which complaint is made is a private act as contrasted with the discharge of a public function…..If a [PCC] enters into a contract with a builder for the repair of the chancel arch, that could hardly be described as a public act. Likewise when a [PCC] enforces, in accordance with the provisions of the Chancel Repairs Act 1932, a burdensome incident attached to the ownership of certain pieces of land: there is nothing particularly "public" about this. This is no more a public act than is the enforcement of a restrictive covenant of which church land has the benefit.
In similar vein, Lord Hope of Craighead said at §§ 63-64:
As for the question of whether [the PCC] is a "hybrid" public authority, I would prefer not to deal with it in the abstract. The answer must depend on the facts of each case. The issue with which your Lordships are concerned in this case relates to the functions of the PCC in the enforcement of a liability to effect repairs to the chancel. Section 6(5) of [the 1998 Act] provides that a person is not a public authority by virtue only of subsection (3) if the nature of the act which is alleged to be unlawful is private. The Court of Appeal said that the function of chancel repairs is of a public nature:  Ch 51, 63, para 35. But the liability of the lay rector to repair the chancel is a burden which arises as a matter of private law from the ownership of glebe land…..The nature of the act is to be found in the nature of the obligation which the PCC is seeking to enforce. It is seeking to enforce a civil debt.
Can Cheshire stand with Aston Cantlow?
a subsequent case in the House of Lords is found either expressly or by implication to overrule an earlier decision of the Court of Appeal
If that statement is taken literally, it is very difficult to see how Aston Cantlow could have impliedly overruled the decision in Cheshire, because the issue that had to be decided in the one case was different from the issue that had to be decided in the other. And if that is thought too pedantic an objection, at the very least Lord Greene's understanding of the rule requires a closeness of subject-matter and a clear inconsistency of approach between the first case and the second that does not stand out from a comparison of Aston Cantlow with Cheshire.
It is the function that the person is performing that is determinative of the question whether it is, for the purposes of that case, a 'hybrid' public authority
The reference to the function under scrutiny picks up the terminology of section 6(3)(b). This point was addressed in detail in §§ 40-45 of Mr Sales' skeleton, but I have to say that the criticism in those terms of the general approach in Cheshire is very difficult to understand.
their Lordships emphasised that there was no single test of universal application; the question of whether or not a body exercises public functions will turn on the facts of each case: see Lord Nicholls at , Lord Hope at , and Lord Scott at 
What, then, is the touchstone to be used in deciding whether a function is public for this purpose? Clearly there is no single test of universal application. There cannot be, given the diverse nature of governmental functions and the variety of means by which these functions are discharged today. Factors to be taken into account include the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service.
It is very difficult to contend that that general analysis, and the factors to which it makes appeal, differs in clear terms, or indeed at all, from Lord Woolf's view of the relevant factors that is set out in the passage from his judgment cited in §35 above. In a later section of the judgment I will venture to suggest that some aspects of Lord Woolf's application of those factors may be open to question: but that is very different from saying that his understanding of the questions that the law required to be asked was wrong in itself.
the decided cases in the amenability of bodies to judicial review have been made for purposes which have nothing to do with the liability of the state in international law. They cannot be regarded as determinative of a body's membership of the class of 'core' public authorities….Nor can they be regarded as determinative of the question whether a body falls within the hybrid class. That is not to say that the case law on judicial review may not provide some assistance as to what does, and what does not, constitute a 'function of a public nature' within the meaning of section 6(3)(b). It may well be helpful.
[counsel has not] advanced any reasons peculiar to the public authority issue in support of the submission that, even if [the body's] decision is amenable to judicial review, nevertheless it was not made by [the body] in the exercise of a public function. In my judgment, she was right not to do so. On the facts of this case, and I would suggest on the facts of most cases, the two issues march hand in hand: the answer to one provides the answer to the other.
Authority in the ECtHR and section 6(3)(b)
A purposive construction of a public authority is that it carries out a function of government which would engage the responsibility of the United Kingdom before the Strasbourg courts
and at the end of the quotation set out in §49 above Lord Hope said
the domestic case law must be examined in the light of the jurisprudence of the Strasbourg Court as to those bodies which engage the responsibility of the State for the purposes of the Convention.
Under section 6 of the 1998 Act the court, as a public authority, is required not to act "in a way which is incompatible with a Convention right". The court is able to achieve this by absorbing the rights which articles 8 and 10 protect into the long-established action for breach of confidence. This involves giving a new strength and breadth to the action so that it accommodates the requirements of those articles.
On that basis, a transaction between private parties may be brought before the ECtHR on the basis that the domestic judicial organs, as an emanation of the state, have failed to accord respect to article 8 rights. It may be noted that that was the route whereby the ECtHR found itself adjudicating on the essentially private argument between Princess Caroline and Bunte that was pursued in Von Hannover v Germany (2005) 40 EHRR 1.
The Court observes that the respondent State has decided to delegate its obligations arising out of the international agreements to a body operating under private law. In the Court's view, such an arrangement cannot relieve the Polish State of the responsibilities it would have incurred had it chosen to discharge these obligations itself, as it well could have (see, mutatis mutandis, [Van der Mussele v Belgium] and [Costello-Roberts]).
There are three aspects which could engage Germany's responsibility under the Convention for the applicant's detention in the private clinic in Bremen. Firstly, her deprivation of liberty could be imputable to the State owing to the direct involvement of public authorities in the applicant's detention. Secondly, the State could be found to have violated Article 5 § 1 in that its courts, in the compensation proceedings brought by the applicant, failed to interpret the provisions of civil law relating to her claim in the spirit of Article 5. Thirdly, the State could have breached its positive obligation to protect the applicant against interferences with her liberty by private persons.
And in more detailed discussion the court referred again to Van der Mussele and Costello-Roberts.
[Counsel] submitted that [Donoghue and Cheshire] have been 'superseded' by the Aston Cantlow case. If by 'superseded' she means that the two earlier decisions are to be taken as having been overruled, then I do not agree. As I have said, apart from what Lord Nicholls said, at p 288, paras 11 and 12, the Aston Cantlow case contains no guidance as to what amounts to the exercise by a hybrid public authority of functions of a public nature. Provided that it is borne in mind that regard should be had to any relevant Strasbourg jurisprudence, then the passages which I have quoted from the judgments in the two earlier cases will continue to be a source of valuable guidance, indeed para 12 of Lord Nicholls's speech is redolent of the flavour of that guidance.
Sir Martin Nourse agreed with the whole of Dyson LJ's reasoning, and Longmore LJ specifically agreed with §25 quoted above.
Apart from authority, what is the correct answer to the preliminary point?
The issue here can…be refined by asking, is LCF, in providing accommodation for the claimants, performing a public function?
That reference to accommodation, with a comparison with a small hotel providing bed and breakfast, was repeated in §58 of the judgment in Donoghue, quoted in §30 above. That, with deference, undervalues what the care home does, and what the local authority seeks from it. The home is not just a hotel, but a care home. It would not adequately perform the local authority's duties to place persons where only accommodation was provided. In their range of provision, which is subject to stringent standards, the homes can indeed be argued to stand in the shoes of the local authority as it discharges its public duties under section 21. This is another factor that might be thought to point towards the care functions of the homes being of a public nature.
in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or the protection of the rights and freedoms of others.
The public authority's actions that interfere with a citizen's private or family life have therefore to be judged by that standard. But the language and assumptions of article 8(2) are all redolent of the powers and discretions of public authorities in the full sense of the expression: that is, bodies that actually have power and responsibility to do something about national security or the protection of morals. This essentially public nature of the article 8 balance was indeed one of the reasons motivating those who, at the time of the passing of the 1998 Act, warned against facile assumptions that the language of the Convention could simply be applied to transactions between private individuals. So how is article 8(2) to be applied in the case of, for instance, a private care home that needs a resident to leave because the home is going into liquidation; or wishes a resident to leave for the kind of reasons that apply in the case of Mrs YL? The terms of article 8(2) really make no sense in the first case, and very little sense in the second; so if the care home is to be treated as a public authority, article 8 will have been translated into the domestic jurisdiction as conferring not conditional but absolute rights.
Unlike a core public authority, a "hybrid" public authority, exercising both public functions and non-public functions, is not absolutely disabled from having Convention rights.
But, with deference, that does not meet the objection in relation to those functions of the hybrid, in the present case the care of section 26 residents, that confer the status of a public authority. And it would therefore seem to follow that when making decisions of the sort indicated above the care home cannot take into account, under the rubric of the rights of others, its own Convention rights, because when discharging its public functions it has no such rights.
Appeal to the House of Lords
Lord Justice Dyson:
The Master of the Rolls: