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JUDGE KNOCKS HOLE IN GOVERNMENT PRIVATISATION POLICY

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Private firms who win contracts to take over public services are not subject to either judicial review, or the term...
Private firms who win contracts to take over public services are not subject to either judicial review, or the terms of the European Convention on Human Rights.

In a ruling today, Mr Justice Forbes described the decision as of 'extreme public importance.'

That opens the way to arguments from recipients of public services that privatisation will strip them of critical legal safeguards and itself amount to a violation of their human rights.

The judge's decision in the case of three vulnerable old people's home residents who objected to privatisation plans was greeted by government lawyers with an immediate application to mount a 'leap frog' appeal straight to the House of Lords.

The case was considered of such importance that secretary of state for constitutional affairs, Lord Falconer, entered into the fray, on the basis that 'important issues of principle' were at stake which effect the government's 'strong policy interests'.

Cecilia Ivimy, for Lord Falconer, said the case was of 'extreme public importance'.

However, the judge refused leave to appeal, either to the Law Lords or the Court of Appeal, saying that, in his view, any challenge to his ruling would stand 'no reasonable prospect of success'.

Mr Justice Forbes' decision on the central legal issue in the case follows a challenge by Elspeth Johnson, Victor Thomas and Lillian Manning to Havering LBC's plans to privatise two old people's homes and close down two others.

He said that, even if the homes were taken over by private companies, residents' rights would not be 'diminished or removed' and the council would still be obliged to guarantee respect for their human rights 'in the same way and to the same extent as previously'.

In July last year, Havering resolved to close down Hampden Lodge and Marks Lodge old people's homes and, once suitable alternative placements had been found for the residents, to sell off the sites for development.

The council also decided to seek private operators to take over and expand the Elmhurst Lodge and Winifred Whittingham House care homes. The tendering process for that to happen is now at an advanced stage.

The four homes between them offer well over 100 beds for frail and elderly residents - including dementia sufferers and people with learning difficulties - as well as 100 more day care places.

Jessica Simor, representing the three residents, told Mr Justice Forbes that transferring publicly-run care homes into private hands would violate the council's duty to act 'compatibly' with the residents' human rights.

She said the council had acted on 'wrong and misleading' legal advice that private operators, although not 'public authorities', would be bound by the terms of the Human Rights Act and would also be subject to the jurisdiction of the courts through Judicial Review.

The judge accepted Ms Simor's arguments that, just because the private firms will be providing accommodation to residents previously under the local authority's care, that does not mean that they are 'ipso facto exercising functions of a public nature'.

The judge said he was bound by previous legal authority to rule that private operators do not metamorphose into 'public' authorities - subject to Judicial Review and the Human Rights Convention - just because they take over previously public functions.

Nevertheless, despite winning the argument on that central issue, the three residents had their judicial review challenge dismissed after the judge ruled that privatisation of their homes would not entail any loss of enforceable legal or human rights.

He said that, even after privatisation, Havering would still be obliged to take 'appropriate steps' to protect the lives of care home residents, to ensure that they are not subjected to 'inhuman or degrading treatment' and that their private and family lives, homes and correspondence are respected.

Roger McCarthy QC, for Havering, earlier told the court that the future of old people's care in the borough had been hotly debated since 1999, but resolution had been delayed by the council's changing political complexion and the need to consult widely.

He told the court there is a 'pressing need for improvement' of services for old people in Havering and the quality of current facilities are 'far from satisfactory'. A Commission for Social Care inspection had 'expressed concern' over delays in upgrading provision.

The objective of the council's move, said Mr McCarthy, was to modernise facilities for old people in the borough and bring them into line with the 2000 Care Standards Act.

STRAND NEWS SERVICE

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