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Cite as: [2007] EWCA Civ 26, [2008] QB 1, [2007] BLGR 241, (2007) 95 BMLR 33, [2007] HRLR 15, [2007] MHLR 69, [2007] UKHRR 645, (2007) 10 CCL Rep 7

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Neutral Citation Number: [2007] EWCA Civ 26
Case No: C1/2006/1693

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE FORBES

[2006] EWHC 1714 (Admin)

Royal Courts of Justice
Strand, London, WC2A 2LL
30th January 2007

B e f o r e :

The Master of the Rolls
Lord Justice Buxton
Lord Justice Dyson

____________________

Between:
JOHNSON and others
Appellants
- and -

THE LONDON BOROUGH OF HAVERING
Respondent
-and-
THE SECRETARY OF STATE FOR CONSTITUTIONAL AFFAIRS
-and-
THE NATIONAL CARE ASSOCIATION

Interested Party

Intervener

____________________

(Transcript of the Handed Down Judgment of
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____________________

Ms Jessica Simor (instructed by Hossacks) for the Appellants
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
Judgment

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Buxton:

    The nature of the appeals

  1. The court is concerned with two appeals. In C1/2006/1693 (Johnson) Mrs Johnson and others, all of whom are resident in a care home maintained by the London Borough of Havering [Havering] under the provisions of section 21 of the National Assistance Act 1948 [the 1948 Act], seek to prevent the transfer by Havering of the residents' and other care homes to private sector control, as a local authority is in principle empowered to do under section 26 of the 1948 Act. In C1/2006/2226 (YL) the Official solicitor represents a resident placed in a private sector care home by the responsible local authority Birmingham City Council [Birmingham] in respect of whom the care home seeks, or originally did seek, to terminate the contract for her care and to remove her from the home. In Johnson it is contended that the transfer of control of the homes would in itself amount to a breach of the residents' rights under the European Convention on Human Rights, principally under article 8. In YL it is contended that to remove Mrs YL from the care home would be a breach of her rights under article 8.
  2. The claim in Johnson was rejected by Forbes J, and the claim in YL by Bennett J. The two appeals have been heard together because they were thought to raise the same point, as to the susceptibility to control under the European Convention on Human Rights of private care homes that are used by local authorities under section 26 powers: that question turning on whether and in what circumstances the homes are persons certain of whose functions are functions of a public nature under section 6(3)(b) of the Human Rights Act 1998. In YL that issue arises directly from the proposed action of the care home, and the present proceedings take the form of a preliminary point to determine whether the care home, the second defendant in the action brought by the Official Solicitor, is
  3. in providing care and accommodation for [Mrs YL]…exercising a public function for the purposes of section 6(3)(b) of the [1998 Act]
  4. The way in which the central issue arises in Johnson is rather more elusive. J's claim is based upon the contention that whilst she at present enjoys Convention rights, conspicuously but not exclusively article 8 rights, against Havering as a public authority, those rights will be lost, or at least substantially diminished in content, if her home is transferred to a private body. Havering, supported by the Secretary of State intervening, denies that the change would involve a breach of the Convention, and that is the first issue that has to be addressed in the Johnson appeal. Both of those parties however further respond by contending that in any event nothing will be lost by the residents, because the new private owners of the homes will themselves be subject to Convention obligations by reason of section 6(3)(b); and that point is, perhaps confusingly, also urged by the claimants as an alternative to the point set out at the beginning of this paragraph. That latter issue accordingly raises in principle the same question as the preliminary point in YL.
  5. Because of what was seen as the general interest of the "public authority" issue under section 6(3)(b) a large number of organisations were good enough to intervene in the appeals in order to assist us in our task. The Secretary of State for Constitutional Affairs, although not in any way concerned with the transactions in Johnson, and not concerned with the general policy area involved, which is the responsibility of the Secretary of State for Health, was nonetheless given permission to intervene in that case, in the light of his policy responsibility for the implementation of the 1998 Act. As already noted, he argued that section 6(3)(b) would apply to the respective care homes once the residents were transferred to them; and it was the Secretary of State's desire to pursue that argument to this court, and indeed if needs be to the House of Lords, that caused another constitution of this court to grant permission to appeal to all parties. Since otherwise no argument would have been advanced in that appeal contrary to the contentions of the appellants and of the Secretary of State, and there was of necessity no appearance on behalf of any individual care home because the policy complained of had not yet been implemented, the National Care Association, which represents the interests of private care homes, was given permission to intervene. We received submissions on its behalf from Ms Booth QC. In addition, submissions were received in writing from the Disability Rights Commission, represented by Mr David Wolfe who had appeared before Forbes J, and Help The Aged, in the event equally represented by Mr Wolfe. Both of these bodies supported the position of the Secretary of State. All of these intervening submissions were taken into account in the court's consideration of YL, though as a matter of formal order the Secretary of State was given permission to intervene in that appeal also.
  6. As a result of these arrangements we received 184 pages of skeleton argument and bundles containing 106 authorities, and were addressed by eight teams of advocates over a period of two whole days.
  7. The facts

  8. It is important to record that there are many issues of fact and policy involved in both of the cases. We are only concerned with the threshold question, of whether issues under the Convention arise at all. If they do arise, there will remain much to be said and debated as to the facts, and in particular as to the justification under article 8(2) for the course proposed by the respective defendants. Put shortly, in Johnson Havering submitted a detailed account of its consideration of the future of its care homes, in the light of the need to improve facilities and conditions both for residents and for staff, and of how it reached the conclusion that the preferred option was to close some homes and to transfer others to the private sector. In YL the point of departure of the proceedings was an unfortunate dispute as to the behaviour in the home of the husband and daughter of Mrs YL that in the view of those running the home rendered impossible the continuation of the family's connexion with it. Since we are not concerned with the merits of any of this it is not necessary to go further into the underlying facts. Anyone who thinks that more information is necessary can refer to the judgments of Forbes and Bennett JJ, both of which, if I may respectfully say so, give a full and clear account of the respective backgrounds. We simply need to remember, in fairness to both defendants, that they have put forward full, robust and potentially persuasive justifications for their decisions, quite apart from arguing the question of whether those decisions are in any event justiciable.
  9. The form of this judgment

  10. As already explained, there is an issue that arises in Johnson but not in YL as to whether the proposed transfer falls within the ambit of the Convention even if the receiving private home is not a public authority within section 6(3)(b). I deal with that issue first; and then consider the "public authority" point that is potentially relevant in Johnson and is the only issue in YL. Under the latter head a major issue arises as to whether or not this court is bound by its previous decision in R(Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936 [Cheshire].
  11. 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

  12. It is accepted that this argument fails, alternatively is otiose, if the private care homes are public authorities, as the Secretary of State contends. However, on the assumption that the homes are not public authorities, and therefore the residents cannot assert against them article 8 rights, or rights under any other article of the Convention, then the contention as put in paragraph 5a of the appellants' Grounds of Appeal is that:
  13. 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.

  14. Forbes J took this point fairly robustly, the major part of his judgment being directed at the "public authority" issue. At §44 he said:
  15. 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.
  16. Ms Simor's response was to say that Forbes J's conclusion was simply wrong. After transfer, the residents might retain some rights against Havering, but those would be different, and less valuable, rights compared with the rights that they enjoyed against Havering when Havering was directly their carer. Taking article 3 as an example, Ms Simor said in §§ 26-28 of her Grounds of Appeal that at present the residents had a right not to be subjected to degrading treatment by Havering. After transfer, they had no such right against the care homes under article 3, and only a right against Havering that the council would take appropriate steps, which it was far from certain would be effective, to safeguard the residents against immediate risks of degrading treatment.
  17. Article 3

  18. Although it played a prominent role in the Grounds of Appeal, it is difficult to see that article 3 is the best example of the present point. We were warned against naively thinking, and evidence was given by the Official Solicitor and Help the Aged to support that warning, that treatment amounting to a breach of article 3 could not occur in a private care home. We do not need to enter upon that controversial ground. Article 3 addresses not lack of consideration or inadequate care standards, but the much more serious territory of degrading treatment that is akin to inhumanity. If a resident in a care home, public or private, were to be treated in that way, then first almost certainly breaches of the criminal law would be involved; and secondly such breaches, and the inhumane treatment generally, would engage the responsibilities of the local authority for the welfare of the residents, under section 21(2) of the 1948 Act, and its responsibility to enter and inspect the private care home under section 26(5) of the 1948 Act. In these extreme and hopefully hypothetical circumstances the potential problems for the residents would not lie in the absence of legal protection, but in the difficulty of the abused resident in accessing that protection: whether by taking proceedings herself against the home, or by informing the responsible local authority so that it could take action. Thus, to the extent that article 3 has any more than a theoretical role to play in such a case, the resident does not suffer any significant loss of that protection by the transfer of immediate control of her residence from the public to the private sector.
  19. Article 8 in the present case

  20. Article 8 raises different issues. Havering submitted, to my mind entirely convincingly, that care homes, public or private, were subject to rigorous standards of services, quality of staff, extent of facilities, and record-keeping and other procedures for the protection of the residents, which are required by the Care Standards Act 2000, and supervised by the Commission for Social Care Inspection. Indeed, and ironically enough, it had been concern expressed by the Commission about the present standards in some of Havering's own facilities that had contributed to the decision now complained of to seek the assistance of the private sector. These rules, it was suggested, again convincingly, well exceeded in terms of day-to-day protection for residents anything that they could gain through the application of article 8. In this respect, therefore, the residents lost nothing in article 8 terms by the transfer.
  21. Ms Simor sought to meet these objections in a number of ways, but her main contention was that even if the general public regime set higher standards than would the simple application of article 8, the proposed transfer would deprive the residents of a direct action against their actual carer under article 8, whether that action was taken in the domestic courts or in the ECtHR. And she pointed to one particular respect in which the content of the article 8 right would be diminished. Her clients' place of residence did indeed become their home, and was thus subject to core protection under article 8, including a right to be consulted about any proposal to alter the place of residence. If the body running the home should decide to cease to provide facilities, either generally or to a particular resident, a local authority in making such a decision would be subject to obligations under article 8 to protect the resident's home. Not so a private care home if (as the present hypothesis assumes) it is not a public authority under section 6 of the 1998 Act. It was that article 8 protection that the resident lost by the transfer of her home to the private sector.
  22. There are two main objections to this argument, the first an objection of general principle, the second more a matter of practicality.
  23. The nub of the complaint is that the residents will or may lose a remedy that they can deploy to assert the level of article 8 protection that they currently enjoy. But the argument that a change in the nature of the residents' remedies necessarily entails a breach of the residents' Convention rights would seem to have to assume that the state has an obligation to provide, and having provided to maintain, a particular level of article 8 protection. That assumption is faulty on two bases.
  24. First, it is very doubtful whether article 8, even when read in positive rather than in negative terms, places on a member state an obligation to make welfare provision of the type and extent required by section 21 of the 1948 Act. Mr Sales showed us the judgment of the ECtHR in Marzari v Italy (1999) 28 EHRR CD 175[33] where the positive obligations of the state were held to be engaged in order to provide housing for a person with a serious illness, on the basis that that was necessary to ensure respect for his private life. But as Sullivan J, correctly if I may respectfully say so, pointed out in R(Bernard) v Enfield LBC [2002] EWHC 2282 (Admin); [2003] HLR 27, such instances must necessarily be fact-specific, and not every breach of duty under section 21 of the 1948 Act will result in a breach of article 8. Since the article 8 requirements are less stringent, and manifestly less well-defined, than the requirements of domestic law, it would seem impossible to say that there is an article 8 obligation to maintain a particular type or level of provision when discharging duties under section 21. And secondly, and in any event, even when article 8 places collateral obligations on the government in respect of the home that it has provided in performance of its domestic law duties, there is no reason to think that those obligations have a fixed content and, more particularly, no reason to think that a change in that content will necessarily entail a breach of article 8.
  25. The practical issue is this. The resident whom the private home seeks to remove will remain the responsibility of the local authority under section 21 of the 1948 Act. That authority will continue to have article 8 obligations towards her, as well as its section 21 obligations, as indeed was made plain by this court in Cheshire, at §33 of that judgment. (It may be mentioned here that that is the position of Mrs YL; but because of the form of the proceedings adopted in her case, which seek only the declaration set out in §2 above as to the status of the care home, that issue will not be explored when we come to her appeal). That duty will compel the local authority to intervene and to offer resources and protection for the resident; as, it was pointed out, Birmingham had done in the case of Mrs YL, by providing funding for supervised access to enable visits from her relatives not to take a form that threatened her continued presence in the home. Since the local authority in that process has to secure the resident's Convention rights, it is just as vulnerable to suit as would be the home if those rights are infringed
  26. We must also remember that the issue with regard to article 8 is not the importance of the right to respect for the home, which is not in dispute, but the significance for respect of that value of the difference between the public and the private regimes. In that regard, we do well to bear in mind the recent survey of article 8 jurisprudence undertaken by Lord Walker of Gestingthorpe in his speech in M v Secretary of State for Work and Pensions [2006] 2 AC 91 [62]-[83]. Addressing facts very different from those in the present case, Lord Walker nonetheless concluded in general terms that because the touchstone of article 8 is respect for the relevant rights, the interference with the citizen has to be of some seriousness before article 8 will be engaged. Caution must be exercised before applying that insight as if it were a statutory rule. Nonetheless, that approach reinforces the conclusion in this case that the change in the residents' legal position that occurs when the homes are transferred from public to private control is insufficient to amount to a breach of the Convention. Ms Simor said that before we could be satisfied that the change would not in itself entail a breach of the Convention we had to be satisfied that there was no respect, actual or prospective, likely or possible, in which the residents would have less protection under the new regime than under the old. Quite apart from the assumption of vested rights that that submission entails, it places on article 8 a weight that it will not bear.
  27. Some wider considerations

  28. For the reasons already given, I am not persuaded that the transfer proposed by Havering will involve a breach of the residents' rights under article 8. However, the appellants' argument, and the assumptions on which it proceeded, can in any event only succeed if it succeeds in avoiding two wider and more general objections, the first involving issues of policy and the second an important point of law.
  29. First, the appellants' argument would place very far-reaching and surprising inhibitions on national policy. I can readily accept that, if national policy is indeed inconsistent with an article of the Convention, then it is no answer that the national government would wish to be free to act differently from the way that the Convention requires. But where the reach of an article is unclear, it is very relevant to enquire whether the jurisprudence and policy of the Convention intends the effect on freedom of governmental action that would follow from one asserted reading of that article.
  30. In the present case, the argument that a change from public to private provision necessarily entails a breach of article 8 must further entail that any privatisation of services in respect of which the national government has or arguably has Convention responsibilities will in itself result in a breach of those responsibilities. The root objection, loss of direct action under the 1998 Act against the actual provider, must be the same in every case. As Havering pointed out, that at a stroke puts every local authority with social services responsibilities in breach of the 1998 Act, since all of them use private sector provision to a greater or lesser extent. It is notorious that privatisation, not just in the present field but over a very wide area of governmental activity, is a subject that attracts strong views. But those are views, to be adjudicated upon by the national democratic process, and a very good example of an area that the Convention will enter only with considerable diffidence.
  31. Paragraph 12c of the Grounds of Appeal addressed this objection (which had originally been advanced by the court as a reason amongst others for not granting permission to argue this appeal) by accepting that it might be right that no local authority could transfer a care home into private hands, but saying that that was not a reason for not accepting the appellants' argument. If the appellants' argument were otherwise unassailable, that would be correct. As it is, the outcome to which that argument leads must cast doubt on whether the argument itself was correct in the first place.
  32. Second, both Mr Sales and Mr McCarthy pointed out that it was English domestic law, confirmed by the House of Lords, that section 26 of the 1948 Act permits a local authority to discharge its section 21 duties by arrangements with private third parties, indeed if so advised in respect of all of those duties: see R v Wandsworth LBC ex p Beckwith [1996] 1 WLR 60. Section 6(2)(b) of the 1998 Act provides that the obligation on a public authority not to act in a way which is incompatible with a Convention right does not apply to an act if
  33. 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.

  34. Ms Simor's argument really did not come to terms with these two fundamental difficulties. They strongly reinforce the reasons already given for holding that Mrs Johnson's case must fail.
  35. That makes it unnecessary to go on, within the Johnson appeal, to consider whether Mrs Johnson is protected in any event by the status of the private care home as a public authority, as Havering and the Secretary of State contend. However, that is the issue, and because of the form of the order for the preliminary point the only issue, that this court has to determine in YL.
  36. YL: is the private care home a public authority under section 6(3)(b) of the 1998 Act?

    Introduction

  37. As already noted, but it will be convenient to remind ourselves, we are concerned only with the preliminary issue of whether the care home, when accommodating Mrs YL under arrangements made with Birmingham for the implementation (and funding by Birmingham) of Birmingham's obligations under section 21 of the 1948 Act, is exercising a public function for the purposes of the 1998 Act. The foregoing laborious exploration of the issues in Johnson has revealed continuing Convention (and other) obligations on the part of Havering, but the form of the question appears to require those same obligations owed by Birmingham to be ignored in "YL" as that action is at present constituted. And what the practical effect would be of an affirmative answer to the question has equally been consigned to another day.
  38. The task of this court

  39. The question is answered in negative terms by the decision of this court in Cheshire. The primary facts relating to the status of the care home in that case are not suggested to be relevantly different from the primary facts relating to the care home in which Mrs YL is accommodated. That therefore would appear to give a short answer to the preliminary point at any level below the House of Lords. However the Secretary of State submitted that Cheshire was wrongly decided, not least because it was inconsistent with authority decided by the ECtHR. It was recognised that such a claim was, in itself, of little assistance, because it is black letter law, recently confirmed by the House of Lords in Kay v Lambeth LBC [2006] 2 AC 465[43], that the domestic rules of precedent prevail even in cases concerned with Convention (or EU) rights, and a domestic case alleged to be wrongly decided in the light of ECtHR jurisprudence retains its authority until dislodged by a domestic case of superior authority. But the Secretary of State said that that fate had indeed befallen Cheshire, because that decision could not stand with the subsequent decision of the House of Lords in Aston Cantlow PCC v Wallbank [2004] 1 AC 546 [Aston Cantlow].
  40. These arguments require close attention to the reasoning of this court in Cheshire and in the case that preceded it and was to some extent relied on in it, Poplar Housing and Regeneration Community Association v Donoghue [2002] QB 48 [Donoghue]. In the account that follows of those cases emphasis will be placed on the aspects of them that are said to fall foul of the guidance in Aston Cantlow.
  41. Donoghue

  42. D was granted a weekly, non-secure, tenancy by her local housing authority [Tower Hamlets] pending a decision on whether she was intentionally homeless. The property was transferred to a housing association [Poplar], which when it sought to evict D was met with a claim that as a registered social landlord it was performing a public function and thus was subject to the constraints of the Convention. That required an examination of the provisions of section 6(3)(b) of the 1998 Act, which provides that a "public authority" includes
  43. 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.
  44. This court went into the application of those principles to Poplar in some considerable detail. It will be convenient first to set out what was said by Lord Woolf CJ in §§ 58-59 of the judgment of the court:
  45. [58] 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]….
    [59] 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.
  46. The court then went on, in its §65, to apply that approach to the case before it. Some of the sub-paragraphs of its reasoning may be quoted:
  47. 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 [1987] 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.

  48. The court then continued, at its §66:
  49. 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.
  50. Donoghue has been considered in some detail because it was referred to extensively, and to some extent adopted, in the case with which we are primarily concerned, Cheshire.
  51. Cheshire

  52. The claimants were residents in a care home [Le Court] owned and operated by a well-known charity [LCF], the claimants having been placed there and paid for by their local authority in discharge of its duties to them under section 21 of the 1948 Act. They claimed that they had been assured by LCF that at Le Court they had "a home for life". LCF decided to reorganise its provision in that area, transforming Le Court into a smaller, high-dependency, unit, and transferring those residents who did not qualify for that provision, including the claimants, to smaller, community-based, homes. The very skilled and experienced lawyers who represented the claimants did not feel able to assert that the assurances as to a home for life created any contractual liability, but they did contend that LCF, by reason of its performance of functions on behalf of or at the request of the local authority, was a "public authority" under section 6(3)(b) of the 1998 Act, and was therefore constrained in its dealings with the claimants in respect of their home for life by its obligations under article 8.
  53. The approach of this court to that argument can again be best understood by setting out verbatim the relevant passage of the court's judgment in §35 thereof, again delivered by Lord Woolf CJ:
  54. 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.
  55. The court therefore saw the activity of LCF, and its relationship with the residents, as the provision of services of a private nature that had been obtained from LCF by the local authority in discharge of the latter's public responsibility to persons qualifying for assistance under section 21 of the 1948 Act. As the court had put it in §60 of its judgment in Donoghue, when commenting on the decision of the ECtHR in Costello-Roberts v United Kingdom (1993) 19 EHRR 112:
  56. 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.

    Aston Cantlow

  57. The facts of Aston Cantlow were far removed from those in Cheshire or in our case. A Parochial Church Council, a body created by the Church of England as part of its internal government, sought to recover from the lay rectors of the church for which the PCC was responsible payment to fund chancel repairs: an obligation of the lay rector to the church recognised in English domestic law over many centuries. The lay rectors did not dispute their domestic obligation, but contended that the common law liability was an unjustified interference with their enjoyment of the property which founded their status as lay rectors, and thus benefited from the protection of article 1 of the First Protocol to the Convention. In order to assert that defence in an English court they had to establish that the PCC was either a "core" public authority under section 6 of the 1998 Act, or a person certain of whose functions (in casu, the collection of tithe rents and chancel liabilities) were functions of a public nature, under section 6(3)(b).
  58. The major part of the argument before the House of Lords addressed the first of these questions, in an attempt to establish that the PCC was a public authority, and thus that the whole of its activities were subject to control under the Convention. As Dyson LJ pointed out in R(Beer) v Hampshire Farmers Markets [2004] 1 WLR 233 [24] [Beer] the only general guidance on hybrid authorities and what is a public function for the purposes of section 6(3) of the 1998 Act is to be found in two paragraphs, §§ 11-12, of the speech of Lord Nicholls. That is a point of some importance, because Mr Sales' argument depended on applying the whole of the jurisprudence of Aston Cantlow, addressed as it almost entirely was to the question of whether the PCC, as a body, was a public authority, to the different question of whether certain functions of a care home were functions of a public nature.
  59. Although the contention that the PCC was a public authority had prevailed in this court, it received somewhat short shrift in the House of Lords. The position of the Church of England as the "established church" did not confer on it a public status, and its internal machinery was directed at its pastoral mission and the management of its own affairs. Accordingly, in public law, and without any disrespect, the PCC had no different status from that of the committee of a golf club. And on the ancillary issue, of whether collection of the chancel liability was a public function, it would therefore be unlikely that a particular act of the PCC to promote the finances of the Church of England would be a function of a public nature. That was indeed the view of the House. Two of their Lordship's speeches may be cited. At §16 Lord Nicholls of Birkenhead said:
  60. 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: [2002] 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.
  61. Thus, not only were the basic facts in Aston Cantlow different from those in Cheshire, but so was the nature of the question that the House was asked. In Cheshire the question was whether an intrinsically private act performed by a private body, the private care home's enforcement of its own contract with one of its residents, became a function of a public nature because the private body was assisting a public body in the discharge of that latter body's public functions: see in that respect in particular the passage from the judgment in Donoghue set out in §31 above. In Aston Cantlow no such issue arose. No clearly public function was involved. The only issue was whether the PCC, in pursuing its own interests on its own behalf, and not performing any function on behalf of anyone else, was thereby performing a public function. And some indication that the issues were indeed seen as different may be drawn from the fact that the House was shown both Donoghue and Cheshire (see the report of the argument at [2004] 1 AC 550A), but no reference was made to either case in the extremely full and detailed speeches.
  62. All of this might seem to suggest that Aston Cantlow is not likely to be a sure guide to the rights or wrongs of Cheshire. But it was strongly submitted to us, as it had been to the judges in the courts below, that a series of general observations in Aston Cantlow as to the proper approach to section 6(3)(b), to which observations respectful attention must of course be given, showed that this court had not properly applied the law in Cheshire. Indeed, to quote §31 of Mr Sales' skeleton, that the approach of the House in Aston Cantlow was "in stark contrast" to the approach of this court in Donoghue and Cheshire. To those submissions I now turn.
  63. Can Cheshire stand with Aston Cantlow?

  64. The Secretary of State expressed himself in the somewhat extreme terms just set out because he was aware that any attempt to dislodge the decision of this court in Cheshire had to meet the test set out above, as laid down by this court in Young v Bristol Aeroplane Co [1944] KB 718. The test as stated is a stringent one, and intentionally so. The appellants made no attempt to show us any case in which two reasoned decisions of this court had been set aside because, in a subsequent decision of a House which was invited to but did not refer to those decisions, general statements were made that conflicted with the basis on which the Court of Appeal had proceeded. The court's own researches have not identified any such case. I also have in mind that in Williams v Glassbrook Bros [1947] 2 All ER 884 at 885 Lord Greene MR, who had delivered the judgment in Young's case, described the freedom of this court to depart from one of its own decisions as arising where
  65. 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.

  66. It may also be said by way of introduction that what binds us is the decision in Cheshire, and the legal steps that compelled that decision. Those steps were twofold. First, the identification of the legal principles that had to be applied to the primary facts. Second, the analysis or categorisation of the primary facts in the light of those principles. Both of those are conclusions of law, or at least conclusions of mixed law and fact, and we are not free to depart from either of them. So even though (as I will explain below) I would not have categorised the primary facts in the same way as did the court in Cheshire, I am not free to substitute my categorisation for that adopted by that court. And it will be apparent in any event that Aston Cantlow could not have anything to say relevant to the categorisation of the primary facts in Cheshire, because the facts in the two cases were different.
  67. I now turn to the errors, in terms of failure to apply the law set out in Aston Cantlow, that are said to have occurred in Donoghue and Cheshire. The objections raised in the present case can, I hope, be fairly summarised as follows. I add some commentary in each case.
  68. First, the Court of Appeal adopted an "institutional" rather than a "functional" analysis: that is, it emphasised the status of the body, the nature of its relationship with the state, and the degree to which it was controlled by the state. That was said to be inconsistent with, in particular, what was said by Lord Hope at §41 of Aston Cantlow:
  69. 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.

  70. First, there is no sign that Lord Woolf did not understand that the question that he was asked had to be answered in the context of and according to the functions that LCF was performing. That concept was used eleven times in the passage from his judgment set out in §35 above. And that there is some universal and required approach to that question is specifically denied by the Secretary of State. As Mr Sales said in §36 of his skeleton argument:
  71. 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 [12], Lord Hope at [63], and Lord Scott at [130]
  72. The guidance given in that context by Lord Nicholls, said by Mr Sales to be of critical importance, is to be found in the paragraph of his speech that is cited, §12. Lord Nicholls said:
  73. 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.

  74. I should also record that the foregoing analysis mirrors that of Dyson LJ in Beer.
  75. Second, and a major complaint, Lord Woolf applied the domestic law on amenability to judicial review, rather than applying the Convention jurisprudence relevant to the enquiry under section 6. That was inconsistent with the observations of Lord Hope of Craighead in §52 of Aston Cantlow:
  76. 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.
  77. A fair reading of the judgments in Donoghue and Cheshire does not bear out the charge. It is quite right that Lord Woolf saw a commonality between the two areas, as recorded in §31(i) above, a passage much criticised by Mr Sales. However, in so saying Lord Woolf was doing no more than reflecting the Parliamentary assumption that lay behind section 6(3)(b). When introducing the Bill that became the 1998 Act the then Home Secretary said that in deciding what was a public authority or function the judicial review jurisprudence was the "most valuable asset that we have to hand": see Grosz, Beatson and Duffy Human Rights (2000) § 4-03, fn 24, citing other statements to the same effect by government Ministers in the House of Lords. Lord Hope, in the conditional way in which he expressed himself in the quotation set out in §49 above, and in his acceptance that judicial review authority had a part to play, may well have had that history in mind. But Lord Woolf did not think, any more than did Lord Hope, that judicial review authority was dispositive. If the extended reasoning set out in §35 above is read without pre-conception, it will be seen to have concentrated on the general question of whether the relevant functions of LCF were "public", without being coerced on that issue by the domestic law of judicial review.
  78. I would also again respectfully adopt an observation of Dyson LJ in Beer, at §29:
  79. [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.
  80. In his oral submissions Mr Sales said that he did not contend that Lord Woolf had applied judicial review authority to the exclusion of any other. The complaint rather was that judicial review had been treated as the primary source of authority. That was certainly the most that a reading of Cheshire would yield, but even if that analysis is correct it does not seem to me to suffice for the Secretary of State's purposes. There are two reasons for that. First, in order to meet the stringent requirements of Young there has to be shown at the least a failure in the case under attack to apply a principle clearly established in the subsequent House of Lords authority. The placing of emphasis on one stream of authority rather than another is difficult to fit into that framework, particularly when the House has said that the stream of authority allegedly over-emphasised may well be helpful in the lower court's task. Second, it would in any event have to be demonstrated that the House had indeed either laid down such an established principle, or (as is contended for here) had imported such a principle from the jurisprudence of the ECtHR. That was indeed asserted, as a separate criticism of Cheshire. The argument raises sufficient difficulties of its own to justify treatment in a separate section of the judgment.
  81. Authority in the ECtHR and section 6(3)(b)

  82. Under the authority of Kay v Lambeth, §27 above, Cheshire cannot be directly attacked as being inconsistent with ECtHR authority. Mr Sales approached the problem more subtly, by arguing that Aston Cantlow required the domestic court to follow, or at least to be influenced by, Convention authority when determining questions under section 6(3), and that had not been done in Cheshire. To succeed in that criticism, to the extent of requiring this court to depart from Cheshire, it was necessary to demonstrate both that Aston Cantlow had laid down such a requirement in general terms; and that there was Convention jurisprudence relevant to the application of that requirement to Cheshire. Mr Sales set himself to establish both of those points in two, alternative, respects. First, he said that there were some cases in which the ECtHR would treat private care homes as performing public functions, and that authority should be applied more generally to our case. Second, even if there was no such case Aston Cantlow had assumed or required that analysis of section 6(3)(b) must be informed by the general nature of Convention law. I deal with each of those contentions in turn. It will be apparent that, for present purposes, the second approach is markedly weaker than the first.
  83. The first approach rested strongly on what was said to be the test stated in Aston Cantlow of whether the United Kingdom would be answerable for functions of the alleged public authority before the ECtHR. Thus at §160 of Aston Cantlow Lord Rodger said:
  84. 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.
  85. The House did not offer any further analysis of how those tests would apply in the case of a body that was not of its nature a public authority, but which performed certain public functions. That is of importance in the present context, because in order to succeed in this argument the Secretary of State has to show that if complaint were successfully made in the ECtHR of conduct inconsistent with an article of the Convention by a private care home the United Kingdom government, the necessary respondent in Strasbourg, would be liable because of the status of the care home as a public authority. That is not likely to be the case, because in the posited circumstances there would be at least three potential routes to liability on the part of the United Kingdom none of which require the establishment of the point that the Secretary of State seeks to establish in these proceedings.
  86. First, a state may be liable for arranging its legislative system in such a way as enables or facilitates conduct inconsistent with the Convention by a private party. That was the basis on which the United Kingdom was held responsible for the operation of a closed shop by the (by then, private) British Rail in Young, James and Webster v UK (1981) 4 EHRR 38.
  87. Second, the state, in its administrative rather than its legislative capacity, cannot avoid one of its own Convention responsibilities by delegating that responsibility to a private body. That was the approach of the ECtHR in Costello-Roberts v United Kingdom (1995) 19 EHRR 112, the effect of which was, with respect, correctly stated by Lord Woolf in the passage from his judgment in Donoghue set out in §36 above. In Costello-Roberts the complaint against the United Kingdom was that the corporal punishment had occurred in the course of the exercise by the United Kingdom of its obligation under article 2 of the First Protocol to secure educational provision for its citizens. But the obligation remained that of the state, and not of the private body. By the same token, it is very unlikely that the ECtHR, if faced with a complaint about occurrences in a private care home, would find it necessary to go further than to implead the state on the basis of its transfer or delegation of its responsibility under section 26 of the 1948 Act.
  88. Third, and with particular reference to article 8, the state may be impleaded before the ECtHR in a care home case because of the inadequacy of its judicial provision. That springs from the positive obligation of the state, under article 8, to respect, and therefore to promote, the interests of private and family life. That obligation has been recognised in the Convention jurisprudence since Marckx v Belgium (1979) 2 EHRR 330, and a particularly strong expression of it is to be found in X and Y v Netherlands (1985) 8 EHRR 235. The way in which that obligation is enforced in the domestic legal system has been described by Lord Woolf in A v B plc [2003] QB 195[4]:
  89. 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.

  90. It is also to be noted that most of the cases cited address delegation by the national state of its own responsibility under the Convention. Thus, for instance, Costello-Roberts, cited above, related to the state's obligation under article 2 of the First Protocol to secure the right to education; and Buzescu v Romania (App No 61302/00), Wos v Poland (App No 22860/02), Van der Mussele v Belgium 6 EHRR 163 and Sychev v Ukraine (App No 4773/02) were all of them concerned with various aspects of the state's obligations under article 6. A revealing passage may be cited in this context from Wos v Poland, where complaint was made of the exclusion of access to the Polish courts to challenge decisions made by a private Foundation created to administer reparation payments made by Germany under an agreement with the Polish government. The Polish government argued that it could not be impleaded in the ECtHR in respect of matters relating to the Foundation, because the latter was not a governmental agency. The ECtHR rejected that argument, saying at its §73:
  91. 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]).
  92. Mr Sales also relied on a case that he said fell into a somewhat different category, Storck v Germany (2006) 43 EHRR 6, which concerned state responsibility under article 5 for detention in a private psychiatric hospital. Germany denied responsibility for a detention that had taken place in a private establishment without any coercive order by the state. Again the ECtHR rejected that contention, explaining its approach in general terms in its §89:
  93. 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.

  94. The upshot of all the ECtHR authorities shown to us is that there are various ways in which complaints about the conduct or policy of a private care home might be brought before that court, but none of them would involve or require any finding or assumption that the care home was itself a public authority. And there is certainly no stream of jurisprudence sufficiently clear and strong to the latter effect to require it to have been adopted in Donoghue and Cheshire.
  95. The other basis on which it was, somewhat tentatively, suggested that the court in Cheshire should have been coerced into finding that the care homes were public authorities equally fails to meet the stringent standards of Young. The authority referred to was Ferrazzini v Italy (2002) 34 EHRR 45, in which at §§ 26-28 some general remarks fell from the court as to the need, in interpreting the Convention as a living instrument, to recognise the state's increasing involvement in matters that might on one level be classified as private in nature. But that was said in the context of considering the ambit of "civil" rights and obligations under article 6. It really does not touch the issue with which we are concerned, and certainly does not do so with the certainty that is required to support the Secretary of State's criticism of Cheshire.
  96. For those reasons the attempt to demonstrate that Cheshire cannot stand with Aston Cantlow fails. The general approach of this court was not falsified; and it is not open to us to differ from the way in which that approach was applied by the earlier court to facts that in all relevant respects are the same as the facts of our case. And the arguments based on Aston Cantlow can be criticised further by reference to the decision of this court in Beer, to which I now turn.
  97. Beer

  98. The local authority established a number of farmers' markets under Local Government Act powers, and subsequently decided to transfer the running of those markets to a limited company. B was excluded from participation in a market, and sought to quash that decision by judicial review, and also damages under the 1998 Act on the basis that when making its decision the company had been performing a function of a public nature and thus acting as a public authority under section 6(3)(b). Under the latter heading, counsel for B sought to dislodge any relevance that Cheshire might have to the question by appealing to Aston Cantlow, in broadly the same terms as those in which we have been pressed with that decision. However Dyson LJ, giving the leading judgment, did not accept that Aston Cantlow had disturbed Cheshire. In §25 Dyson LJ said:
  99. [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.

  100. Viewing the matter in terms of strict precedent, we are not bound by the view expressed by the court in Beer. That is because, although the court was clearly influenced by Cheshire, its actual decision, that the farmers' market was a public authority, was based on its analysis of the market being a close proxy for, and emanation of, the local authority, of a kind that was not present in Cheshire. But the observations about the relationship between Cheshire and Aston Cantlow were nonetheless a considered response to a question that was directly in issue before the court. As such, I would be most reluctant to reach a different conclusion unless driven to it. For the reasons already set out, I am not so driven.
  101. Conclusion

  102. For all the reasons stated, we are bound to follow both the reasoning and the decision in Cheshire, and therefore bound to say in answer to the preliminary point that the private care home when accommodating the appellants was not performing the functions of a public authority under section 6(3)(b) of the 1998 Act. The appeals of the Secretary of State and of Mrs YL must fail.
  103. Apart from authority, what is the correct answer to the preliminary point?

  104. I enter upon these considerations with no little diffidence, in view of the opinion expressed in their judgments by both the Master of the Rolls and Dyson LJ that the court should leave matters where they stand. However, in the course of the appeals it became clear that the issue in YL, and the second issue in Johnson, were they not decided by binding authority, raise some fundamental questions as to the operation of Convention rights and obligations in domestic law. In view of the importance of that issue, and in view of the detailed arguments that we have received, it does not seem sufficient to leave those questions unnoticed. I therefore go on with due deference to indicate the answer that I would have given to the preliminary point were we not constrained by Cheshire. Everything that follows is of course obiter and carries even less authority by representing the view of one member only of the court.
  105. In drafting what became section 6 of the 1998 Act the government sought to provide as much protection as possible for the rights of the individual against the misuse of power by the state: see the Parliamentary material cited by Grosz, Beatson and Duffy, op cit, § 4-02. It was no doubt that consideration that led, for instance, Lord Nicholls in §11 of his speech in Aston Cantlow, to urge a "generously wide scope [for] the expression 'public function' in section 6(3)(b)." Two comments are however necessary. First, the purpose of the 1998 Act was to introduce Convention jurisprudence into English domestic law. As we have already noted, it is difficult to find in that jurisprudence a parallel for the step that it is said should have been taken in Cheshire, of creating Convention liability just because of the status of the private home as a public authority. Second, the importation of the Convention jurisprudence demands the importation of the whole of that jurisprudence. I will say something further below about the implications of that point for the present case.
  106. First, however, I address the application to the present case of the terms of section 6(3)(b) as if it were part of an ordinary English statute; so that the expression "functions of a public nature" has to be read according to the simple meaning of the words used. Two general observations may be made about how that approach was applied in Cheshire.
  107. First, Lord Woolf emphasised that the nature of the services provided to residents placed with LCF by local authorities was exactly the same as that provided to privately-paying residents. LCF was essentially a private organisation, and before the 1998 Act came into force it is doubtful whether it would even have been contemplated that it was performing any sort of public function: Cheshire at §15. This analysis was strongly supported by Southern Cross, in the YL appeal, and by National Care Association intervening in Johnson. For the latter body Ms Booth stressed that the members of the NCA were not charities, like LCF, but businesses owned by private investors. They should have the freedom that any other private business might expect, to dispose of its resources in the way that seemed to it most profitable. Constraints imposed on that freedom by Convention rights held by the residents, what the Chief Executive of the NCA described in §16 of her evidence as "rights of occupation having priority over the right of the care home provider to freely deal with his business asset", were inconsistent with the private status of the care homes.
  108. If I were free to do so, I would reject that consideration as dispositive as to whether on the facts of Johnson the care home is performing a public function in accommodating Mrs Johnson. Although no comprehensive figures were given, the Chief Executive said that the majority of placements in private care homes are publicly funded by local authorities under the 1948 Act. That was borne out by the evidence of Southern Cross, who said that of the 29,000 beds that it provides in the United Kingdom about 80% are funded by Social Services departments of local authorities. And that also reflects the position at the two care homes that we know about in any detail. At the time of the hearings in Cheshire 38 of the 43 residents at Le Court had been placed there by local authorities. We were told that at the care home where Mrs YL is resident 60 of the 72 residents are publicly funded. And on the other side of the coin, Birmingham told us of the some ten thousand persons for whom it provided residential accommodation, 9,000 were placed in private homes. These figures seriously undermine the claims of the homes to be providing an essentially private service. It seems clear that these care homes can only continue, whether as viable charities or as profitable businesses, because they are accepted by the public function as acceptable providers of a public obligation. That degree of close integration into, and dependence on, the work of local authorities in discharging their section 21 duties should be a strong indicator that the care of persons placed under section 26 is itself a "public" function.
  109. Second, it is necessary to consider the nature of the service that the care homes provide. Lord Woolf may have understated that point when he said, at §17 of Cheshire, that
  110. 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.

  111. That said, however, different, more general, and with respect more cogent objections were also raised in the skeleton argument presented by Ms Booth and Professor McColgan. The argument can be explained in the following way. The 1998 Act is not an ordinary English statute. Rather, it is the vehicle through which the jurisprudence of the Convention, as understood by the ECtHR, is made available in the English domestic legal order. Section 6(3)(b) was thus included in the Act in an attempt to replicate in the domestic jurisdiction the range of bodies in respect of whose activities within the United Kingdom liability would attach under the jurisprudence of the ECtHR. It is not just a quibble to say that it is very difficult to find within that jurisprudence any direct parallel to a private body becoming a public authority, therefore a body for which the state is directly responsible in the ECtHR, because it performs some public functions. And that is not least because, if, for instance, a private care home is in respect of some of its activities a public authority in Convention terms, the whole of the Convention jurisprudence, and the whole of those articles of the Convention set out in Schedule 1 to the 1998 Act, apply to that part of its activities. The monocular concentration on the assertion of the rights of the individual against the state that inspired section 6 (see §68 above) causes no, or at least not much, difficulty when applying section 6(3)(b) in relation to what have been called the absolute obligations, such as that arising under article 3. But as the skeleton argument urged, it does cause considerable difficulty in relation to the qualified obligations in other articles: the most obvious example, in issue in the present case, being article 8.
  112. Article 8(2) provides that a "public authority" may interfere with the exercise of the article 8 right when that is
  113. 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.

  114. A particular difficulty has been seen in this connexion in respect of the right of the care home to protect its own position, for instance by asserting its right to control its property under Article 1 of the First Protocol. That difficulty arises as follows. When addressing the position of core public authorities, Lord Nicholls at §8 of Aston Cantlow (a passage relied on by Mr Sales as in some way undermining Cheshire), pointed to the definition of "victim" in article 34 of the Convention: "any person, non-governmental organisation or group of individuals" (Lord Nicholls' emphasis). It therefore followed that a core public authority would be, or was likely to be, a body that was not a victim, and thus had no Convention rights of its own. But if that is so of core public authorities, it is very difficult to see why that is not so of hybrid public authorities in relation to the activities that confer on them their public status. True it is that at §11 of Aston Cantlow Lord Nicholls said
  115. 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.

  116. I find these considerations troubling. The argument presented by the National Care Association taken on its own proves too much, because the logic of it was that, at least in relation to an article such as article 8, a private body could never be a public authority. That cannot be right, granted that we have to apply section 6(3)(b). But I do consider that in applying that section we have to have firmly in mind its instrumental nature, and the purpose that it serves, and not merely interpret the literal language in the terms suggested in §§ 71-72 above. The question to be asked in any given case should, therefore, be whether it is necessary for the protection of the claimant's Convention rights that the body concerned should be held to be a public authority against which those rights can be directly asserted. The answer to that question will vary according to the article of the Convention that it is sought to assert. If it is seriously asserted that the body has indulged in conduct contrary to article 3, then to be able to make that assertion directly against the body will be the obvious course. But if the article in issue is article 8, with all the difficulties indicated above, the question of whether it is necessary and justified to treat the body as a public authority for the purposes of article 8 will be much more difficult to answer.
  117. In YL, because the proceedings have taken the form of a preliminary point, the full implications of finding the care home to be a public authority have not been explored, and we certainly have not heard submissions on them. However, granted that this part of the judgment proceeds on the basis indicated in §67 above, I feel able to observe as follows. Appeal is made to the Convention in the present case because in the "best interests" proceedings in which the issue arises the court would not have power to compel either the care home to continue to accommodate Mrs YL, or Birmingham to continue to maintain her there; it would appear, even if the professional advice was that to move her to another home would be seriously detrimental to her health or even to her life. It has been noted in the discussion of Johnson that Birmingham has in any event to protect the article 8 rights of any person for whom it is responsible under section 21: see §17 above. Whether it is necessary or possible in any given case to go further, and impose on the care home what is in effect an absolute obligation to accommodate Mrs YL (as to which analysis see §74 above), is much more questionable. To answer that question in the affirmative would seem to confer on Mrs YL the sort of absolute right that article 8 does not provide: see §§ 15-16 above.
  118. I therefore venture to suggest that the approach to the issue of whether a particular body is a (hybrid) "public authority" should respect the instrumental nature of section 6 of the 1998 Act, and its purpose in promoting access to the Convention jurisprudence. That does not exclude the conclusion that a hybrid body may be directly impleaded in the protection of some Convention rights but not of others. Nor does it exclude consideration of the necessity of imposing liability on a body even where that significantly distorts the balance required by some articles of the Convention. What is not likely to be helpful is to ask whether in performing a particular function a hybrid body falls under the Convention for all purposes and at all times, in the same way as the status of a core public authority is fixed without reference to the instant context.
  119. It is unfortunately that last question that we are asked in this case. For the reasons indicated I would not give it a positive answer, but also I draw back from the implications of giving a negative answer that will be binding in all circumstances. Whether it is necessary to find that the care home is bound by any and if so which of the articles of the Convention must depend, first, on what would be legitimate relief in the "best interests" proceedings; and, second, on whether that relief can be provided without infringing any other Convention values. I appreciate that this may be an unattractive invitation to further litigation, not only in this case but in many others. But I fear that that is the unavoidable outcome, however the courts proceed, once domestic enforcement of the Convention embraces the relativist values of articles 8-11; and once the bodies bound by those values pass from the core case of the national government to bodies with legitimate interests of their own to assert.
  120. As already indicated, these considerations are not open to this court, but it might be thought that they should be taken into account in any future investigation of the impact of article 8 on the care home sector.
  121. Disposal

  122. The appeals both in Johnson and in YL fail. In the hope that it may be of some assistance to the parties I go on and make some observations about costs, and about any further appeals. These are of course subject to any appropriate argument that the parties wish to advance.
  123. Costs

  124. In Johnson Havering is entitled to its costs, subject to any issues arising in relation to LSC liability. I would not award any costs in favour of the Secretary of State, whose intervention, although valuable to the court, was confessedly directed at policy objectives that went wider than this case. We need to know more about the arrangements for the appearance of the National Care Association before determining the issue of its costs. While it is quite correct that the court welcomed that intervention, the intervention was originally proposed by the Secretary of State, the court understood at his expense, in order to give substance in the sense of opposition to his own intervention. And the Association made it plain that it had a strong interest in supporting the commercial interests of its members. I doubt whether it would be equitable to expect Mrs Johnson to meet the costs of the Association as well as those of Havering.
  125. In YL, and again subject to any issue arising in relation to LSC liability, the appellant is liable for the costs of Birmingham and of Southern Cross Healthcare. She will be jointly and severally liable with the Secretary of State, who by intervening in the appeal in support of a particular case became in practice a party to the appeal: R v Bow Street Magistrate ex p Pinochet (No 2) [2000] 1 AC 119 at p 134A. There will have to be an assessment of the latter costs, in order to ensure that there is no double recovery for the cost of litigating the same point. The Third and Fourth Respondents played only a limited role in the appeals, and I would make no order for costs in their cases.
  126. Appeal to the House of Lords

  127. The issue in YL is of public importance, at present determined by authority in this court that might benefit from reconsideration. I would be minded to give permission to appeal both to Mrs YL and to the Secretary of State. I would not give permission to appeal on the first issue in Johnson. The second issue as to whether the homes are public authorities, remains live in Johnson because of the interest in it of the claimants. I would grant permission to appeal on that issue only. It will be for their Lordships' House to determine how many advocates they wish to hear in support of the point that arises in YL as in Johnson.
  128. Lord Justice Dyson:

  129. I agree that these appeals should be dismissed for the reasons given by Buxton LJ. I do not, however, wish to make any obiter observations as to what the answer to the preliminary point should be if Cheshire were not binding on this court.
  130. The Master of the Rolls:

  131. I also agree that these appeals should be dismissed for the reasons given by Buxton LJ. Like Dyson LJ, I too do not wish to express any view as to what the position would be if Cheshire were not binding on this court. The purpose of the rules of precedent is that courts bound by previous decisions should not embark upon detailed debate on questions determined by such decisions. In these circumstances, it is only in very rare cases that I would think it appropriate to express a view upon such questions. This is not such a case.


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