The Human Rights Act (HRA) 1998 protects the individual from interference and abuses by the state. It enshrines the European Convention on Human Rights into UK law. This means that ‘public authorities’ – those delivering a ‘public service’ such as the police or the NHS – have a legal obligation to uphold the Convention. However, when the state outsources public services to private and third sector organisations, those outsourced service providers do not generally have a duty to uphold the human rights of their employees or service users – unless sector-specific legislation (such as the Care Act 2014) or a private contract between the state and third party specifies it. Even when such a contract exists, service users may not be able to enforce their rights through the courts because the service user is not a party to that contract.
This is a particular problem when religious service providers use their service to proselytise or to impose their beliefs on service users. It can also lead to discrimination in who is employed, promoted, or dismissed. We want this loophole closed.
In depth
The HRA is of great importance for the protection of the rights of public service users. However, only a narrow range of public service providers are deemed by UK courts to be ‘public authorities’, and only those with public authority status are bound by the HRA. In practice, this means that ‘pure’ public authorities, such as government departments, the police, NHS Trusts, and local authorities have a duty to uphold the rights enshrined in the HRA. Service users have recourse to legal action if their human rights are breached by their service provider if that service provider is recognised as a public authority under the HRA.
However, many and varied services – from housing to after-school clubs, from social care services to welfare and employment services – are being contracted out to private and third sector providers, some of whom are highly evangelical religious organisations. This means that for an increasing number of service users, it is unclear whether their rights are protected by the HRA or not.
In theory, duties under the HRA can extend beyond ‘pure’ public authorities. The Act also applies to ‘hybrid public authorities’. These are private or third sector organisations that are carrying out both public functions and private functions. In these cases, service providers can be bound by the Human Rights Act only in respect of those public functions. In practice, however, courts have interpreted ‘public function’ narrowly. Many organisations delivering publicly funded services are therefore not treated as public authorities for the purposes of the Act, leaving service users without clear or enforceable human rights protections when services are contracted out.
We think there are real risks that religious service providers in particular can infringe on the rights of service users. In particular, religious service providers can proselytise in the delivery of services that should be secular – that is, they should take no position on matters of religion or belief.
These concerns have real-world impacts. In 2011 Richmond Council awarded a contract for counselling services for teenagers to the Catholic Children’s Society – replacing Off the Record, a local, inclusive secular charity that had provided the counselling service for the past 20 years. The Catholic Children’s Society had previously given up working with new adopters after legislation came into force that prohibited them from discriminating against same-sex couples wanting to adopt. This gave rise to concerns about its ability to provide inclusive services on issues like homophobic bullying, as well as contraception and abortion, if employees are required to ‘uphold the Catholic ethos’.
In the same week, the UK Government withdrew funding from pioneering women’s charity Eaves Housing, instead awarding the contract for services to trafficked women to the Salvation Army. The Salvation Army had previously stated it would be ‘impossible’ for it to be ‘religiously neutral’, and at the time the contract was awarded, its position statement condemned homosexual behaviour as ‘self-evidently abnormal’. Then in 2018, an investigation uncovered claims of homophobia and untrained staff at City Hearts, a Sheffield charity subcontracted by the Salvation Army which had been contracted by the Home Office to support victims of modern slavery.
Despite this, the APPG on Faith and Society’s Faith Covenant sets out a voluntary framework on how religious groups and local authorities can work together. Until 2020, this Covenant forbade proselytising in contracts, but it was then revised to remove this explicit prohibition. The APPG encourages local authorities to sign that Covenant, and many have, exacerbating the problems associated with having religious organisations as public service providers.
Amendments to the law are needed to make sure that all those organisations contracted to provide public services on behalf of the state are considered to be ‘public authorities’ in the context of the Human Rights Act 1998.
Only the UK Parliament can amend the Human Rights Act for the UK as a whole. However, the devolved legislatures can pass their own laws that would close the public authority gap, where that gap relates to devolved public services.
What we’re doing
We’ve highlighted the need to recognise a broader range of organisations offering public functions on public funds to be recognised as ‘public authorities’ to the Office for Equality and Opportunity.
We brought together more than 250 human rights-focused organisations to launch a coalition to oppose any attempt by the UK Government to restrict access to human rights laws, calling for the protection of judicial review. We work closely with other civil society organisations, such as the British Institute of Human Rights and Liberty, to defend the HRA.
Read more about our work on public service reform, ending Equality Act exemptions, and defending human rights and access to justice.
Appendix: Past work on this issue
- Our 2007 report Quality and Equality: Human Rights, Public Services and Religious Organisations, discusses and sets out in detail our position on the contracting out of public services to religious organisations, and our recommendations for where the law should be amended to mitigate the problems we have identified.
- Also in 2007, we supported our patron Dr Evan Harris MP when he brought forward a private member’s bill, presented by the Chair of the Joint Human Rights Committee, to clarify the meaning of ‘public function’ in the Human Rights Act to include any function of a public nature which is required or enabled wholly or partly through public funding. If the Bill had passed, it would have extended the duty to comply with human rights law to all groups receiving public funds to deliver a public service.
- In 2015, we were part of the working group on and submitted evidence to the Equality and Human Rights Commission’s review of the place of religion and belief in the workplace, with the subsequent evidence finding many complaining about ‘unwelcome “preaching” or proselytising, and the expression of views that were hurtful or derogatory towards other faiths and/or towards lesbian, gay, bisexual and transgender (LGBT) people’ – including in public service provision.