The European Court of Human Rights’s ruling last Friday in the cases of O’Halloran and Francis means the police, when they http://www.gooakley.com/ suspect a driving offence has been committed, can continue to compel the registered keepers of vehicles to provide the name and address of the driver. They will also be able to continue using that information in evidence. In effect, the ECtHR has upheld the Privy Council’s ruling of 2000 in Brown v Stott.

O’Halloran had been sent by the police photographic evidence of a speeding offence, and a “notice of intention to prosecute”, which told him he must identify the driver, or else commit an offence under section 172 of the Road Traffic act 1988. He admitted he had been driving his car, and on the basis of that confession, which was admitted in evidence under section 12 of the Road Traffic Offenders Act 1988, he was convicted of speeding. Francis refused to identify the driver, and was convicted under section 172. Each man argued that the conviction breached his right to a fair hearing under article 6.1 generally, and specifically the presumption of innocence under article 6.2.

The court ruled against the claimants, upholding the UK’s legislation, and interestingly did so in effect by approving of Lord Bingham’s speech in Brown v Stott: it cites him at some length and specifically picks up on a number of points he made in his reasoning. First, that drivers voluntarily accept they are subject to a regulatory Ray Ban outlet regime when they opt to drive; second, that the legislation in question permits only a narrow inquiry into fact – it does not give a power to question the keeper of the vehicle generally; and thirdly, that the penalty for non-compliance is moderate and non-custodial. In a sense, therefore, this case vindicates what many people said about the Human Rights Act – that it would allow British judges’ rulings to influence those of the Strasbourg court, and lead to a better understanding at the European level of the British approach to protecting human rights.

The judgment wasn’t unanimous: two judges take a purist approach to self-incrimination and give a dissenting opinions in favour of the claimants.

Even more interesting however is the concurring opinion of Judge Borrego Borrego. In effect, he says the claims were a load of nonsense to start with, and that the court should have given them extremely short shrift. I’m not sure I agree with him in this particular case – but I do like his style.

The House of Lords gave an important judgment yesterday, in YL v Birmingham City Council, on the scope of the Human Rights Act: it ruled by a 3-2 majority that a care home which provides care and accommodation to a resident is not a “functional” public authority under section 6(3)(b). It’s an important judgment, and a very interesting breakthrough in thinking about the Act: and what’s especially interesting is what might be called it’s “Thatcherite” approach to the scope of human rights law.

Section 6(3)(b) provides that anyone who performs “functions of a public nature” is, to that extent, a public authority for the purposes of the Act – which means they are required by law to comply with the http://www.gooakley.com/ Convention rights when doing those “public”-type things. So, is a care home doing things that are “public in nature”? Is looking after old people in a home a “function of a public nature”? If so, then a care home cannot simply give a resident notice to quite; it would have to make sure it could defend its decision in terms of respect for the resident’s home, under the article 8 Convention right, and might find its decision ovetturned in the courts, as disproportionate.

The courts had got themselves into something of a mess on this: the Court of Appeal in 2001 in Donoghue v Poplar had ruled that a housing association was a functional public authority when housing people, because it was doing so on behalf of the council; but it went the other way the following year, in the Leonard Cheshire case, deciding that a charity which accomodated residents in a care home was not a public authority, even though it took in residents for the council. The only difference between the cases was that Leonard Cheshire also took in privately paying residents.

Then in 2004, Parliament’s Joint Committee on Human Rights issued a report which was sharply critical of the courts’ approach: the courts, they said, were focusing too much on what a care home’s or other contractor’s relationship was to an obvious public authority such as a council – taking an “institutional” approach, in other words. But the wording of section 6(3)(b) actually requires a functional approach. What the courts should have been looking at was simply and solely the nature of the function being carried out. In other words, is what care homes do, public by its nature?

This ruling clears the matter up. A lot of conventional opinion among lawyers was that eventually the courts would rule that all care homes are functional public authorities, because of the close involvement of government in ensuring the welfare of residents, the involvement of public funding and regulation, and because of the vulnerability of residents. Certainly, this was the view taken by human rights expansionists. What is the Human Rights Act for, unless to protect vulnerable people like care home residents?

The House of Lords, or at any rate the majority, has dished that approach. Lords Mance, Neuberger and Scott essentially look at the issue Ray Ban outlet in very simple terms. If you are paid for allowing someone to live in your property, that is private in nature – it’s exactly what a private landlord does, in return for rent. The fact that something is often done by public sector bodies, for instance when council provides accommodation in local authority care homes, does not alter the essential nature of what is being done. In other words, the partial nationalisation, in a sense, of an economic activity does not nationalise that activity in its entirety, for the purposes of human rights law. That’s why I’m calling it a “Thatcherite” approach, because it imagines the world as though the boundaries of the state are invisible.

The fact that that an activity is heavily regulated makes no difference, or else pharmaceutical companies, or food retailers, would be public authorities. And the involvement of public funding makes no difference either. Something much more than that – for instance a statutory power to detain someone against their consent in a mental hospital – would be required to turn providing accommodation for someone into an activity that is essentially public in nature.

I found the argument new and surprising, but also persuasive and even compelling. In my view, the majority is clearly right – it applies the Act correctly because it focuses on the nature of the functions in question, and on Parliament’s intention, which was to make enforceable in the UK those rights which are enforceable in the European Court of Human Rights. I think the view represented by the dissenting minority, Lord Bingham and Lady Hale, can now clearly be seen as expansionist, and what I’d call “human rightsist”: wanting to enlarge the scope of human rights law beyond what is appropriate. I think every argument they make is refuted by the majority.

So, a breakthrough: let’s hope this view holds, and we’re not plunged back into confusion.

Oh, and Lord Bingham’s got it wrong twice on the run, now – unduly restrictive and literalist in Al Skeini; unduly expansionist in YL.