The decision of the House of Lords in YL v Birmingham City Council and others may have considerable significance for businesses providing services to public bodies under ‘contracting out’ arrangements. Their Lordships had to determine whether a private care home fell within the definition of ‘public authority’ under the Human Rights Act when providing care and accommodation for an elderly resident with Alzheimer’s disease. In what might be described as a battle between public and private law rights, private law triumphed. In a split decision, the majority of their Lordships found that the care home was not exercising ‘functions of a public nature’; much to the dismay of those who saw this as an unduly restrictive approach to the definition of public authority under the Act.
A private body will be a public authority for the purposes of the Act, and have to act compatibly with the European Convention on Human Rights, if it is exercising functions of a public nature. Championing the public law rights of YL, Lord Bingham and Baroness Hale in their dissenting judgments took a purposive approach to the interpretation of the Human Rights Act and what was meant by a ‘function of a public nature’. They considered that the legislature’s intention was to capture the situation where functions formerly carried out by public authorities were now carried out by private bodies. In this case the provision of accommodation and care for the elderly was a public function carried out in the public interest and one for which the state had assumed responsibility at public expense.
