Just a quick note that Publawyer has posted an excellent discussion of YL v Birmingham and the broader impact on thinking about functional public authorities for the purposes of the Human Rights Act. Sure, it’s a bit late, but he’s been away. It makes a good counterpoint to Head of Legal’s view.
Personally, I side with Publawyer. As the duties and activities of public authorities are increasingly contracted out to private sector and not for profit organisations, and often at arm’s length to boot, an open view of ‘public function’ strikes me as increasingly required. Head of Legal’s worries that something as simple as being a regulated industry, or a private body in any way supported by public funds, e.g. housing benefit, would come to fall under the HRA, strike me as unsustainable.
For example, housing benefit may sometimes be paid directly to the private landlord, but the entitled person is the tenant. This is significantly different to a payment made to a care home by a local authority to provide services which are pursuant to a duty of the local authority. One is a simple subsidy of the tenant, the other is the contracting out of a service provision which the authority has a duty to provide. But for the moment, I guess I’m on the losing side.
Trouble is, I suspect we’ll be on the losing side for while yet. I can’t see Gordon Brown’s government doing anything about it before the next election as the popular press have made the HRA so unpopular – there was another “rip up the HRA” story in the Sun the other week, although I’m not sure what the details were. I assume that if the Tories were to get in they would have no interest in strengthening HRA, so the only slight chance would be if Gordon Brown wins the next election. Still not sure whether he is that interested.