Johnson & Ors, R (on the application of) v Secretary of State for Constitutional Affairs & Anor

LORD JUSTICE WALLER: This is a renewed application for permission to appeal. The applicants are residents in care homes run by the Havering Council. Havering Council have taken the decision in principle to transfer their care homes to a private sector provider. The applicants argued before Forbes J first that the proposed transfer was unlawful and it would lead to the residents being deprived of the protection of their human rights or at least to a less adequate protection of those rights. That is an argument I shall described as “the HRA argument”. They in the alternative supported the argument of the Secretary of State, who had intervened. That argument was that if the transfer took place that the private provider would be exercising functions of a public nature, such that that private provider would fall to be treated as a public authority for the purposes of section 6(1) of the Human Rights Act. That is what I shall call the “public authority argument”.

Of course it is right to say that the Secretary of State’s argument, if it were right, would actually defeat the applicant’s HRA argument because the effect would be that the applicants would have their human rights protected by virtue of a finding that the private care home was to be treated as a public authority. The difficulty for the Secretary of State was, and is, that there is Court of Appeal authority in the Leonard Cheshire case, which seems to bind this court to hold that a private home will not be treated as a public authority. The Secretary of State argued before Forbes J that more recent House of Lords authority entitled the Court of Appeal, and indeed him, to take a different view.

Forbes J ruled against the Secretary of State and thus against the alternative way that the applicants were arguing their case and he ruled against the HRA case that the applicants were making as their primary case.

Buxton LJ has on paper refused the applicants permission to appeal the HRA case. He has ruled that that case has no prospect of success and he has also made clear that it was his view that they had no right to put their case in the alternative, supporting the public authority point, and his reasoning seems to be that it was the Secretary of State’s point and that it was not the subject of a claim to relief below, it was not the subject of a Notice of Appeal and, as he put it, “nor could it be”.

The Secretary of State also applied for permission to appeal on the public authority point. In doing so the Secretary of State encouraged the Court of Appeal to grant permission on the HRA argument. The skeleton argument prepared by Mr Sales and Ms Ivimy submitted that:

“The Secretary of State submits that the learned judge was correct to reach the conclusion.” [That is the conclusion on the HRA point]

Nevertheless the Secretary of State endorses the application by the claimant for permission to appeal on the ground that there is:

“Some other compelling reason why the appeal should be heard.” [Reference being made to CPR 5.3(6b)]. The transfer of a care home from the public to the private sector has the effect. If the care home is not itself to be treated as a public authority under section 6 of removing from residents the right to enforce their convention rights directly against those who are accommodated in care for them. The issue is accordingly one which naturally calls for consideration and determination together with issue. 1.- they cannot sensibly be separated out in an illegal analysis which seeks to provide a comprehensive view of how the legal rules under the HRA work in this area.”

Buxton LJ also refused the Secretary of State’s application for permission to appeal, recognising that the public authority point was very arguable, but taking the view that since he had refused permission to the applicants to take their HRA argument to the Court of Appeal, the Secretary of State’s argument was “academic.” He was also of the view that in the circumstances of this case, because further delay would prejudice Havering Council in carrying out the transfer, it would not be right to give permission to appeal.

The Secretary of State did not renew his application for permission. However, we asked the Secretary of State to come here today and in particular asked Ms Ivimy, who has come and assisted and assisted in a way for which we are extremely grateful. The reason we asked the Secretary of State to come was that we were far from clear that it was right to describe the Secretary of State’s argument as academic in this case. If the Secretary of State’s arguments were right it could, as we see it, have a significant effect on the rights of the applicant.

We were also concerned that although the public authority point was not raised in the applicants’ Notice of Appeal and indeed not clearly referred to in the relief which they sought before Forbes J, it seemed that the applicants did have an alternative to their HRA argument. They do have a real interest in the question of whether a private home should be treated as a public authority in the event of their HRA argument failing.

The public authority point is clearly of importance and may affect the applicants. It is a point, as I would see it, that they should be entitled to argue. Miss Ivimy before us, has explained that if they were entitled to argue that point the Secretary of State would seek to file a respondent’s notice and seek to support the point, making the arguments that were made in the court below. What is more, she has not retracted the submission made in the original skeleton argument that although the view that the Secretary of State takes is that the judge’s conclusion on the HRA argument was right, it is an argument that needs exploring in the context of the public authority argument and thus the element there is a compelling reason why that point should be argued also.

Mr Jason Coppel for Havering has submitted that there should be no permission to appeal. He did not press very strongly that there should be no permission to appeal on the public authority point and the main thrust of his submission ultimately was that there was no reason to allow the HRA argument to come to the Court of Appeal. It was not an arguable point; the right course was to allow the public authority point to come alone, and that would have the effect of not holding up the council in the transfer that they were at present proposing. He submitted that the right course would be to allow that transfer to take place. The argument would then take place on the public authority point and if that point were not sound or dismissed by the Court of Appeal, then any human rights points could be sorted out by reference to the detail of the contracts that would be negotiated on the transfer.

Obviously there is force in Mr Coppel’s point in relation to delay. That was the very point that persuaded Buxton LJ to take the view that he did. But, as it seems to me, it is very difficult to put the Secretary of State’s public authority argument, other than in the context of the HRA argument, very much on the grounds that the Secretary of State submitted in the skeleton placed originally before Buxton LJ. I have been very concerned about the delay that may be caused by any appeal and I have been able to identify at least a day being available in January, the day being 24 January. This appeal can be heard on that day and having regard to the fact the arguments have already been very much reduced to writing, there seems no reason why, despite the importance of the point, that it cannot be disposed of in the day, at least so far as arguments are concerned.

For the reasons I have endeavoured to give, I would grant permission to the applicants to appeal, taking the HRA argument and I would give them leave, in so far as that is needed, to amend their Notice of Appeal in order to take the public authority argument, which I would understand will then be supported by the Secretary of State in a respondent’s notice.

LORD JUSTICE HOOPER: I agree.