YL v Birmingham City Council & Ors

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.

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

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.

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.

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.

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.

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].

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:

Forbes J took this point fairly robustly, the major part of his judgment being directed at the “public authority” issue. At §44 he said:

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.

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.

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.

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.

There are two main objections to this argument, the first an objection of general principle, the second more a matter of practicality.

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.

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.

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 thecare 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

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.

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.

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.

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.

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.

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

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.

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.

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.

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].

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.

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

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:

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:

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].

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.

The act of providing accommodation to rent is not, without more, a public function for the purposes of section 6.

[(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…

[(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.

The court then continued, at its §66:

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.

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.

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:

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:

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).

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.

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:

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.

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.

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

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.

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.

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:

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:

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:

I should also record that the foregoing analysis mirrors that of Dyson LJ in Beer.

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:

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.

I would also again respectfully adopt an observation of Dyson LJ in Beer, at §29:

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.

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.

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:

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.

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.

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.

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]:

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:

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:

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.

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.

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.

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:

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.

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.

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.

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.

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.

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.

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.

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

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.

Article 8(2) provides that a “public authority” may interfere with the exercise of the article 8 right when that is

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

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.