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29/10/2009

Yeah, of course I'll call

It’s a bit like one of those nights that just, you know, didn’t work out. You remember, it was all very slow, not really gratifying and, in the end, disappointingly inconclusive.

The Government has released its response [link to PDF] to the Parliamentary Joint Committee on Human Rights report of 2007. Yes, 2007. The report that was released prior to the Lords judgment in YL v Birmingham City Council and the changed law in respect of care homes providing Local Authority contracted services in Health and Social Care Act 2008.

So, the Government notes the concerns that the Courts’ approach to what constitutes a public function for the purposes of the HRA is apparently too much guided by judicial review precedent and not enough focused on a ‘functional approach’ to the definition. It had followed the 2004 report’s recommendations that it should intervene in a suitable case to put this view and intervened in YL.

Now, the Government takes the view that having intervened in YL, unsuccessfully, and changed the law on care homes, what more can it really be asked to do. Yes, it is a bit disappointed too, but it cleared up the specific YL mess didn’t it? Isn’t that enough?

On the view that it isn’t really enough, because YL still covers all those other contracted out provision situations apart from the specific care home one, the Government takes the view that, well, yeah, whatever… At least YL clarified the law, apart from the specific situation it decided upon, where we changed the law.

On housing, at para 72:

There is no evidence that Parliament gave any considered view during the passage of the Human Rights Bill as to whether the provision of social housing is a function of a public nature. The Government’s view at this time is that the provision of housing by a landlord is not inherently a function of a public nature, even though a local authority can also arrange for the provision of housing. One needs instead to consider in the round the features of the function of providing social housing. On this basis, the Government’s view is that the balance of these features indicate that it is not a function of a public nature. To reach this conclusion based on this reasoning is not at all incompatible with the position that the Government has consistently taken on the interpretation of section 6 of the Human Rights Act, including before the House of Lords in the YL case.

But what of Weaver v L&Q, you might ask? The only mention is at para 100. Here it is:

Furthermore, the Government is considering the recent judgment of the Court of Appeal in R (Weaver) v London & Quadrant Housing Trust, which may be heard in due course by the Supreme Court. The Government nevertheless remains firmly committed to consulting on this issue.

So, they are considering and consulting while at the same time having the view that ‘the function of providing social housing […] is not a function of a public nature’.

There is more, of course, but largely more of the same, so forgive me for not going into detail.

What is not at all clear, but definitely a question arising is if Weaver v L&Q does go to the Supreme Court, will HMG be intervening? And if so, in which way?

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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