Private Enterprise or Public Service?

Photo by Matthew Ansley on Unsplash

The provisions of the European Convention on Human Rights (as implemented by the Human Rights Act 1998 and the Scotland Act 1998) are only enforceable against the British State or its institutions and organisations that carry out public functions, for example, universities, care homes, colleges, hospitals, housing associations, schools and local authorities.

It should be noted that a public authority or emanation of the State can have a very wide meaning in law and may cover privatized utilities companies (see Case C-188/89 Foster v British Gas [1990] 3 ALL ER 897 and Griffin v South West Water Services Ltd [1995] IRLR 15) and other private contractors delivering public services.

A recent example of a private sector company falling foul of human rights legislation occurred in the following English High Court judgement: Between LW; Samantha Faulder; KT; MC v 1) Sodexho Limited and 2) Minister of Justice[2019] EWHC 367.

The facts of the case are as follows:

Her Majesty’s Prison Peterborough is run by Sodexho, a private company, but the UK Government’s Ministry of Justice is ultimately responsible for the running of the institution. The case arose because four inmates at the prison alleged that, in 2017, they had been subjected to strip searches which had breached their human rights, namely:

Article 3 – prohibition of torture and cruel and degrading treatment

Article 8 – the right to respect for private and family life

The English Court of Appeal had ruled in a previous decision – R (LD, RH and BK) v Secretary of State for Justice [2014] EWHC 3517 – that strip searches could represent breaches of Articles 3 and 8. In the present case, however, the High Court stated that there was no conclusive evidence that the strip searches represented a breach of Article 3. That said, the manner of the searches did represent a breach of Article 8.

Conclusion

This ruling is a salutary warning to private contractors carrying out public service contracts that they must be aware of human rights considerations. Companies such as Sodexho, Group 4 and Serco are and have all been involved in carrying out contracts in relation to the criminal justice system whether running prisons or transporting prisoners to and from court hearings. Ultimately, the (Scottish or the UK) Government will have responsibility for the manner in which operations are conducted by these companies because the contracts are deemed to benefit the public in the wider sense.

A link to the High Court’s judgement can be found below:

https://www.bailii.org/ew/cases/EWHC/Admin/2019/367.html

The case was widely reported in the UK media and a link to the story on the BBC website can be found below:

https://www.bbc.co.uk/news/uk-england-cambridgeshire-47334760

Copyright – Seán J Crossan, 1 March 2019

Published by

sjcrossan1

A legal blog by the author of Introductory Scots Law: Theory & Practice (3rd Edition: 2017; Hodder Gibson) Sean J. Crossan BA (Hons), LLB (Hons), MSc, TQFE I have been teaching law in Higher and Further Education for nearly 25 years. I also worked as an employment law consultant in a Glasgow law firm for over a decade. I am also a trade union representative and continue to make full use of my legal background. Please note that this Blog provides a general commentary about issues in Scots Law. It is not intended as a substitute for in-depth legal advice. If you have a specific legal problem, you should always consult with a qualified Scottish solicitor who will be able to provide you with the support that you require.

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