French burqa ban to be heard by the Grand Chamber ECtHR

The Chamber of the ECtHR to which the application in S.A.S. v France (No. 43835/11) was assigned has relinquished jurisdiction to the Grand Chamber, neither party having objected to relinquishment.

Under Law no. 2010-1192 of 11 October 2010, which came into force on 11 April 2011, it is forbidden in France to conceal one’s face in a public place: “Nul ne peut, dans l’espace public, porter une tenue destinée à dissimuler son visage”.

The applicant, a French national who is a practising Muslim, states that she wears the burqa in order to live according to her faith, her culture and her personal convictions. She also wears the niqab veil in public and in private, but not consistently; however, she wants to be able to wear it when she so chooses. She states that her purpose in wearing the burqa or the niqab is not to inconvenience others but to live according to her principles. She also asserts that neither her husband nor any other member of her family puts pressure on her to wear the burqa.

She complains:

  • that she risks incurring a criminal penalty and suffering harassment and discrimination if she wears the burqa in public, contrary to Article 3 (prohibition of torture and inhuman and degrading treatment);
  • that the statutory prohibition prevents her from dressing as she chooses in public, contrary to Article 8 (respect for private and family life);
  • that the ban violates her rights under Article 9 (freedom of thought, conscience and religion) and her freedom to manifest her religion or belief, individually or collectively, in public or in private, in worship, teaching, practice and observance;
  • that the ban violates her rights under Article 10 (freedom of expression) because she is unable to wear in public a garment expressing her faith and religious, cultural and personal identity;
  • that the fact that she is prevented from assembling with others in public wearing the full veil breaches her right to freedom of assembly under Article 11; and
  • that the statutory prohibition gives rise to discrimination based on sex, religion and ethnic origin to the detriment of women who, like her, wear the full veil, contrary to Article 14 (prohibition of discrimination).

The application was lodged with the Court on 11 April 2011 and was communicated to the French authorities, with questions by the Court, on 1 February 2012.

Britain’s got religious tribunals

A guest post from Russell Sandberg, of the Centre for Law & Religion at Cardiff Law School.

The latest article resulting from the Cardiff University study on Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts has just been published in the Oxford Journal of Legal Studies. The article, “Britain’s Religious Tribunals: ‘Joint Governance’ in Practice” returns to the original lecture by the then Archbishop of Canterbury, Rowan Williams, on civil law and religious law in England to suggest an alternative way forward.

In that now infamous lecture, Williams drew upon the work of the Canadian scholar Ayelet Shachar, endorsing her concept of “transformative accommodation”. The article suggests that the focus upon transformative accommodation by the Archbishop and subsequent commentators is unfortunate, given that Shachar actually proposes transformative accommodation as just one variant of what she refers to as “joint governance” – albeit her preferred variant.

The article revisits Shachar’s work in the context of the literature on multiculturalism and political theory to suggest that transformative accommodation is a red-herring.  It is argued that Shachar’s umbrella concept of joint governance is actually of most use. Moreover, the  other variants of joint governance which Shachar describes but discards can actually be developed in a way that could prove to be more useful than transformative accommodation.

To reach this conclusion, the article draws upon the empirical findings of the Cardiff University project. Funded by the AHRC/ESRC Religion and Society Programme, the one-year study investigated how three different religious tribunals in the UK (the London Beth Din of the United Synagogue, the Sharia Council of the Birmingham Central Mosque and the Roman Catholic National Tribunal for Wales) deal with divorces and marriage annulments. The research, led by Professor Gillian Douglas and a multidisciplinary team based at Cardiff, took the form of interviews with staff working in these tribunals, complemented by workshops, observation and analysis of statistics.

The article suggests that the empirical findings provide evidence of “joint governance” and underline the value of the variants that Shachar prematurely discards.

The article has been written by the project team: Dr Russell Sandberg, Professor Gillian Douglas, Professor Norman Doe, Dr Sophie Gilliat-Ray and Asma Khan. The citation is: (2013) 33(2) Oxford Journal of Legal Studies 263-291.

Chaplin, Ladele and McFarlane: the end

Mrs Shirley Chaplin (No. 59842/10), Ms Lillian Ladele (No. 51671/10) and Mr Gary McFarlane (No. 36516/10), whose original applications were rejected by the Fourth Section – see Eweida and Ors v United Kingdom [2013] ECHR 37 – all applied to have their cases heard before the Grand Chamber ECtHR.

It has just been announced that the Grand Chamber panel of five judges which filters applications for rehearings before the Grand Chamber has decided to reject all three appeal requests. The judgments in their cases are now final.

Late abortion ruling for bipolar patient

In a recent decision of the Court of Protection, Re SB (A patient; capacity to consent to termination) [2013] EWHC 1417 (COP) 21 May 2013, Mr Justice Holman held that it had not been established that a woman, SB, undergoing treatment for bipolar disorder lacked capacity to make decisions about her desire to terminate her pregnancy and stated that he would either make a declaration to that effect or dismiss the proceedings. Comparison has been made with an earlier case Re P (abortion) (2013) MHLO 1 (COP) [1] in which a senior judge ruled that a pregnant woman with significant mental health impairments would not have to undergo an abortion as she had enough capacity to decide whether or not she wanted to become a mother.

Although the outcomes of the two cases were different and at first sight contradictory, both followed the application of the same logic, turning on the application of ss 1(2) and 1(4) Mental Capacity Act 2005 to s 1(1)(a) Abortion Act 1967. The principles relating to mental capacity are laid down in section 1 of the 2005 Act, which states that:

“(1) The following principles apply for the purposes of this Act

(2) A person must be assumed to have capacity unless it is established that he lacks capacity.

(3) A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5) An act done or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6) Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action”.

Summary of the two cases

Re P (Abortion) concerned a young woman, 18 weeks pregnant, who was in the “bottom one per cent of the UK population” in terms of her cognitive abilities. She had been born with the genetic blood disorder sickle-cell disease and the multiple strokes she suffered as a child had left her mentally impaired.  Doctors had applied for an order to allow them to terminate her pregnancy claiming the child was endangering her life. Furthermore, the solicitor who was one of P’s deputies queried whether P had capacity in relation to a decision as to whether to continue with her pregnancy or have an abortion.

However, Hedley J held that whilst she manifestly lacked litigation capacity she did have capacity in relation to continuing the pregnancy; and the medical professionals concurred that she had the capacity to decide what she wanted to do in relation to the pregnancy. In addition, the court was told that she was supported by a loving family who looked after her and wanted her to press ahead with the pregnancy.

Hedley J noted that in general, courts and health officials should not try to decide whether or not P would be able to bring up a child but should concentrate solely on whether the pregnancy itself was in her best interests, i.e. her understanding and awareness that she was pregnant and this, of itself, might carry some risk to her health [2].

It was stressed that section 1(4) of the 2005 Act allowed people, including women with cognitive impairment, to make what others might view as unwise decisions if they had decision-making capacity. Section 4 of the Act forbids discriminatory assumptions about capacity based on age, appearance, condition or behaviour:

“t]he 2005 Act’s purpose is not to dress a person with cognitive impairment in cotton-wool but to allow them the right to make the same potentially unwise choices that all other human beings are able to make”.

In summarizing the key points in Re SB (A patient; capacity to consent to termination), Holman J stated inter alia that

“the entire reason why [the] proceedings have been issued … is because the mother concerned is herself very strongly indeed requesting a termination and giving her consent to it. The issue relates to her capacity.  But if a termination does take place, it will only take place because she personally has strongly requested it and consents to it right up to the moment when the procedure begins,” [at 5].

“there is no question in this case, or indeed in any case, of a court, by order, requiring any doctor to perform an abortion or termination,” [at 6].

Holman J stressed [at 12] that

“[Re SB] could not be more fact specific. I endeavour to resolve it by a correct application of the law as enacted in the Mental Capacity Act 2005, but I wish to make very clear that, precisely because the case is so fact specific and also because I am giving this highly ex tempore judgment … I certainly do not seek or intend to create any precedent or to indicate any general proposition of the law or construction of the Mental Capacity Act 2005.

The case differed factually from Re P (Abortion) in that:

  • unlike the majority of hearings of the Court of Protection, ‘SB’ was present in person. She was described as “… clearly a lady  of considerable intelligence.  She is well-educated, including having a degree, and she has worked at a relatively high level in demanding work in the field of Information Technology”.
  • whereas “P” sought to continue her pregnancy, “SB” did not. “SB” had undergone a termination two years earlier, a decision she did not regret, and had taken steps towards a termination at an earlier stage of her present pregnancy.
  • the court heard [at 35] that “[“SB’s”] husband has not been supportive of her and would not be supportive of her as a parent; and her perception also that her mother, and indeed also her father, do not and will not support her”, although they and the treating psychiatrist, Dr T, assert otherwise;
  • “P” was 18 weeks pregnant whereas “SB” was 23 weeks pregnant: a factor primarily of medical importance regarding the procedure(s) that might be used but which in “SB’s” case, introduced a significant degree of urgency to the proceedings.

Holman J reached a different overall conclusion as to capacity from that of the psychiatrists, Dr T and Dr Smith, and also of the husband and the mother, [at 36 and 37]. His conclusion was based upon the provisions of the law, whereas the medical experts’ conclusion was based upon “evidence within their professional domain”, which he unreservedly accepted.

“SB” had expressed concerns regarding the manner in which her abortion might be carried out, [at 22], expressing a preference to the use of medication rather than surgery, although the method recommended in NHS Guidance is dependent on the stage of pregnancy at the time.

Comment

A notable point is that in both cases the courts assessment of the person’s capacity in law differed from that of the medical professionals who in one case advocated for an abortion and in the other against it. However, in Re SB Holman J stressed that in relation to section 1(2) of the Mental Capacity Act,

“… unless it is established, on a balance of probability, that the mother does not have capacity to make the decision that she undoubtedly has made, her autonomy as an adult to request and consent to the proposed abortion procedure is preserved,” [at 9].

In both cases, the mother was deemed to have the requisite capacity in law to make the decision she sought.

Holman J also acknowledged the sensitivity of the issue and the restrictions imposed on the judiciary by the legal provisions:

“[i]t is important to stress that the present case clearly falls to be considered and resolved within the framework of the law as it is, and not any alternative law that some people argue or campaign for” [at 4] and “the protection which the law affords to the foetus is the protection of the Abortion Act 1967 and other legislation, such as sections 58 and 59 of the Offences Against The Person Act 1861. But, subject to that, the foetus has no independent rights which fall to be weighed or considered by me at all in these proceedings. Some people may consider that the law should be otherwise. But the law is currently as I have just stated it, and that is the law which I must apply” [at 7].

The decision will not be welcomed by “pro-life” campaigners and it is possible the even some “pro-choice” supporters will be rather uncomfortable with the “eleventh hour” circumstances under which the court reached its conclusions:

“Because the duration of her pregnancy is already approaching the 24th week, and because of the interposition of other factors, including a bank holiday weekend and the non-availability of the doctor who is proposed to perform the abortion, it is currently proposed to start the two-day procedure tomorrow, Wednesday 22 May 2013” [at 23].

Regardless of the maximum time-limit within s 1(1)(a) Abortion Act 1967, there will always be a dilemma for judges and medical professionals when terminations are sought close to the limit. However, against the increases in the annual abortion rate [3], there has been a steady trend towards fewer late abortions, with 91 per cent carried out at under 13 weeks gestation and 78 per cent at under 10 weeks.  Nevertheless, that is not, of course, the issue for those who believe that life begins at, or close to conception

For a more detailed analysis of Re: SB, see Rosalind English’s post on UKHRB: Bipolar patient has capacity to decide to terminate pregnancy.

[1] No current  BAILII listing at time of posting. See also R Griffith, “Decision-making capacity to continue with a pregnancy”, (2013) 21 BJM (4) 297.
[2] On the logic that “once a child is born, if the mother does not have the ability to care for a child, society has perfectly adequate processes to deal with that.”
[3] Latest Department of Health statistics (provisional release for 2012 data is July 2013). The total number of abortions in England and Wales in 2011 was 6% lower than the rate of 18.6 in 2007, but 2% higher than in 2001 and more than double the rate of 8.0 recorded in 1970. Here “rate” is the age-standardised rate per 1,000 women aged 15-44

Reforming the European Court of Human Rights – the new Protocol 15

The Committee of Ministers of the Council of Europe has adopted Protocol 15 to the European Convention of Human Rights. It will be opened for signature at the end of June and will enter into force three months after all states parties have ratified it. The Protocol:

  • adds at the end of the Preamble of the Convention a reference to the principle of subsidiarity and the doctrine of the margin of appreciation;
  • reduces from six months to four the window during which an application must be made to the Court;
  • amends the “significant disadvantage” admissibility criterion to remove the safeguard preventing rejection of an application that has not been duly considered by a domestic tribunal;
  • removes the right of the parties to object to a Chamber’s relinquishing jurisdiction to the Grand Chamber; and
  • requires that candidates for the judiciary be under 65 on the date by which the candidates’ list has been requested by the Parliamentary Assembly (which elects the judges).

Perhaps the most crucial element is the addition to the Preamble to the Convention of specific mentions of subsidiarity and the margin of appreciation, as follows:

“Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention”.

This, in the words of the accompanying Explanatory Report,

“… is intended to enhance the transparency and accessibility of these characteristics of the Convention system and to be consistent with the doctrine of the margin of appreciation as developed by the Court in its case law. In making this proposal, the Brighton Declaration also recalled the High Contracting Parties’ commitment to give full effect to their obligation to secure the rights and freedoms defined in the Convention”.

Comment

In short, the new Protocol implements some of the agenda of the Brighton Declaration – but not immediately.

So far as Article 9 is concerned, one can only speculate as to the difference that the new Protocol might have made had it been part of the original Convention. The suspicion is that it would have made no difference whatsoever to the outcome in Eweida & Ors (a guess which is reinforced by the fact that leave to appeal to the Grand Chamber has just been refused) but it might conceivably have avoided the necessity for the Grand Chamber hearing in Lautsi.

Religion and Law round up – 26th May

Another busy week with parliamentary debate on same-sex marriage, and the Church of Scotland’s decision on ministers in civil partnerships

Eweida et al  yet again

On Tuesday next, 28 May, the European Court of Human Rights will announce its decision on the request to refer to the Grand Chamber the cases of Shirley Chaplin, Lillian Ladele and Gary McFarlane. As regular readers of this blog will know, all three cases are about the extent to which the applicants have the right to manifest their religion in the workplace: in Mrs Chaplin’s case the refusal by her local NHS trust on health and safety grounds to allow her to wear a crucifix on a neck-chain, in the case of Ms Ladele her desire to opt out of performing civil partnership ceremonies and in relation to Mr McFarlane his objection to giving psycho-sexual counselling to same-sex couples. In its judgment in January in Eweida & Ors v United Kingdom [2013] ECHR 37 (which is not final), the Fourth Section held:

  • by five votes to two that there had been a violation of Article 9 (thought, conscience and religion) ECHR as regards Ms Eweida;
  • unanimously, that there had been no violation of Article 9 in relation to Mrs Chaplin and Mr McFarlane; and
  • by five votes to two that there had been no violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 9 in relation to Ms Ladele.

We shall report the outcome of the application asap.

Marriage (Same Sex Couples) Bill

MPs completed the report stage and third reading of the Marriage (Same Sex Couples) Bill on Tuesday 21 May 2013, voting 366 to 161 in favour. There have been few changes to the Bill since it was first introduced; but New Clause 16 in conjunction with a Labour amendment (for an immediate review of the extension of civil partnerships to opposite sex couples) ensured that Tim Loughton’s so-called “wrecking amendment”, New Clause 10, failed. [Note by Frank: had it been a wrecking amendment in the proper, technical sense of that term it would have been out of order and could not possibly have been selected for debate.] Our summary of the two days’ debates is here.

The Bill now moves to the Upper House where, although likely to meet substantial opposition, it will be difficult for the Lords to block the Bill. It remains to be seen whether their Lordships subject this to the same high-level of legal scrutiny as they did Baroness O’Cathain’s “prayer to annul debate” [HL Hansard 15 December 2011 Col 1408] on marriage and civil partnership ceremonies in religious premises.

A number of misconceptions on same-sex marriage still remain and Adam Wagner explored them in a piece in the New Statesman Myths and realities about Equal Marriage”. To these should be added the absence of a statutory definition of “marriage” – which we explored here – and the fact that the situation is further confused by paragraphs 1 and 2 of Schedule 3 to the draft Bill [1].

Marriage, registration of places of worship and Ms Hodkin

We have previously noted the judgment of the Administrative Court in R (Hodkin) & Anor v Registrar General of Births, Deaths and Marriages [2012] EWHC 3635 (Admin), in which Ouseley J decided that he could not overturn the Registrar General’s refusal to register a chapel of the Church of Scientology as a place of meeting for religious worship under s 2 of the Places of Worship Registration Act 1855 (and consequently authorise its use for the solemnisation of marriages) because he was bound by the previous decision of the Court of Appeal in R v Registrar General ex parte Segerdal [1970] 2 QB 697 about the nature of Scientology.

His Lordship made a pretty strong suggestion that Ms Hodkin – who wishes to marry her fiancé in a religious ceremony at the Scientologists’ chapel in central London – should appeal his decision; and she has now been given leave to appeal direct to the Supreme Court. The SC hearing  will take place on 18 July.

Birth, marriage and death at Notre Dame de Paris

By a tragic coincidence, the day on which the far-right activist and writer Dominique Venner took his own life in the sanctuary of Notre Dame was scheduled for the 5th annual vigil – La veillée pour la Vie – at which prayers made “that life is respected from its beginning to its end”. Venner’s action was a protest against the introduction of same-sex marriage in France. Following a Mass of Reparation, as required by Canon 1211 CIC, the prayer vigil went ahead as planned, although on the following day there was an anti-fascism, mock-suicide protest in the Cathedral by FEMEN

General Assembly of the Church of Scotland

We reported the General Assembly of the Church of Scotland’s vote, in principle, to allow men and women in civil partnerships to be ordained to the ministry and/or inducted as parish ministers. The compromise Deliverance (GA-speak for “resolution”) reaffirmed the Kirk’s traditional view on the issue of same-sex partnerships but would allow an individual Kirk Session to choose to call a minister in a civil partnership if it so wished.

Our understanding of the next steps in the process is that a draft Overture will be considered by the General Assembly of 2014 and, if agreed, will be sent down to the presbyteries under the Barrier Act 1697 and implemented if a majority of presbyteries approves the proposal and the General Assembly of 2015 confirms it. No-one has yet told us that our estimate of the time-scale is wrong – but Frank is currently consulting an expert on the law of the Kirk, so this may change.

The Assembly also debated a joint report from the Church and Society Council, the Committee on Ecumenical Relations and the Legal Questions Committee on the implications for the Kirk of Scottish independence. One of the issues that caught the media’s attention was whether or not, should Scotland become an independent state, there should be a separate Coronation of the next Monarch. The resulting Deliverance included the following: that the Assembly believe that in the event of independence,

“a. that the Queen (and her heirs and successors) should be the head of state of Scotland.

b. that the monarch should have a Scottish coronation or investiture to symbolise her or his role as Queen or King of Scots, including the obligations to uphold Scottish religious life and traditions, and in particular her or his role with regard to the Church of Scotland”.

This may appear slightly marginal to “law & religion” but it is not totally irrelevant, for two reasons: the constitutional position of the Kirk and the fact that for the period during which the Scottish Parliament was in limbo the GA took on the role of acting as a sounding-board for national concerns – and not merely for national concerns of a religious character.

House of Bishops statements on women in the episcopate and on safeguarding

Coincident with the two days of parliamentary debate on same-sex marriage was a meeting of the Church of England’s House of Bishops in York at which the bishops deliberated on two other issues of importance: the reintroduction of legislation that will permit the admission of women to the episcopate and the safeguarding of children and vulnerable adults.  Press releases were issued, here, and here, and we will discuss these developments in a subsequent post.

Church safeguarding in Jersey – update

Earlier posts have reported on the review of safeguarding in Jersey, here, and here.  On 15 May, the Diocese confirmed that Dame Heather Steel DBE would be leading the Investigation into the church safeguarding complaint from 2008. As a former Judge of the Court of Appeal in Jersey and of the High Court in England and Wales (Queen’s Bench Division) she brings an insight into the jurisdictions both of the Bailiwick of Jersey and of the United Kingdom. The Investigation will make further inquiries, ascertain facts and make recommendations about whether or not a disciplinary complaint should be brought against any member of the clergy as a result of the matters raised in the Independent Review of a Safeguarding Complaint for the Diocese of Winchester (the Korris review).

The Investigation will gather and review all available and relevant evidence including (but not limited to) that considered by the Korris review. Dame Heather will also be advised and assisted in her inquiries by a police officer nominated by the States of Jersey Police. Her inquiry will feed into the Church’s inquiry currently being undertaken by Bishop John Gladwin (the Visitation, of which the terms of reference are here) to consider the wider implementation of safeguarding in Jersey and across the Diocese. Bishop Gladwin will publish his report on the Visitation later in the year, and will make recommendations for enhancing the Diocese’s safeguarding policies and procedures. Sharp-eyed readers will remember that John Gladwin was one of the two Commissaries appointed by Archbishop Rowan Williams to investigate safeguarding policy and practice in the Diocese of Chichester.

Future absence of “race” in France

The Connexion reports that France has initiated the removal of the word “race” from all legislation as demanded by President Hollande in his election campaign. He called for the word “race” to be taken out of the Constitution, saying that it had no place in the Republic. Article 1 states that:

“France is an indivisible, secular, democratic and social republic. It guarantees equality before the law for all citizens without distinction of origin, race or religion. It respects all beliefs.”

[La France est une République indivisible, laïque, démocratique et sociale. Elle assure l’égalité devant la loi de tous les citoyens sans distinction d’origine, de race ou de religion. Elle respecte toutes les croyances.]

The Parti Socialiste helped vote through a Front de Gauche proposition in the National Assembly and Jean-Jacques Urvoas, president of the Laws Committee said they were making sure Hollande’s promise was not forgotten. However, Socialist MPs amended the original wording of the Front de Gauche proposal to highlight their opposition to racism, antisemitism and xenophobia.

Links to lecture and presentations

A link to the text and recording of the Richard O’Sullivan Memorial Lecture given by Lord Mackay of Clashfern on Thursday 9 May is now available on the THEOS web site.  We hope to provide a link to the abstracts of the papers presented at the LARSN Conference on 14 May in due course.

And here’s one I prepared earlier

Over the next two weeks, David will be on a walking holiday in “La Bella Toscana”, leaving Frank to hold the L&RUK fort. Whilst providing a short break from bloggingIseo, IMG_2138 on law and religion, a couple of weeks ago an email arrived from the organizers requesting contributions to their “collection of online stories told by [its] walkers”, i.e. a holiday blog.  At 200 to 450 words, this should not prove too taxing, and an earlier contribution Vertigo in Iseo? served as an introduction to the blogosphere.

Greeted with the request Se vuol ballare? on arrival at the hotel last year makes it debatable whether to revisit the BBC’s Italianissimo language course or the Da Ponte operas.


[1] Whilst paras. 2(b) and 2(c) of Schedule 3 unambiguously refer to “married couples” and “persons who are married”, “marriage” in para. 2(1) could refer to the marriage ceremony, as in the Marriage Act 1949, but not necessarily to the institution of marriage – for which the Government’s consultation paper acknowledges there is no statutory definition. This is further confused by clause 1(3) of the Bill concerning the Canons of the Church of England.

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.”

Comment

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.”