Johnson & Ors, R (on the application of) v Secretary of State for Constitutional Affairs & Anor

Permission to appeal should be granted where an alternative public-authority issue is legally arguable, materially affects the claimants’ human-rights protection, and cannot sensibly be separated from the primary Human Rights Act issue. The fact that the alternative argument was advanced by another party, was not clearly pleaded below, or was not included in the notice of appeal does not necessarily prevent it being pursued. Delay is relevant, but an appeal should proceed where it can be heard promptly and the issue is important to the parties’ rights.

Residents of care homes operated by Havering Council challenged a proposed transfer of the homes to a private provider. Their primary case was that the transfer would unlawfully diminish the protection of their Convention rights. Alternatively, they supported the Secretary of State’s argument that the private provider would perform functions of a public nature and would therefore be a public authority under section 6(1) of the Human Rights Act.

Forbes J rejected both arguments. Buxton LJ refused permission to the residents on the primary issue and refused the Secretary of State permission on the public-authority issue, treating it as academic and giving weight to delay. The Court of Appeal considered whether permission should nevertheless be renewed on both issues, including whether the alternative issue could properly be argued.

1. Application granted. Lord Justice Waller, with Lord Justice Hooper agreeing, granted permission to appeal on the Human Rights Act argument. The applicants were also given leave, so far as necessary, to amend their notice of appeal to raise the public-authority argument.
2. The public-authority issue was not academic. If correct, the Secretary of State’s argument could significantly affect the residents’ rights because a transfer to a private provider might otherwise remove their ability to enforce Convention rights directly against the provider.
3. The applicants had a real interest in arguing the alternative issue if their primary case failed. Although the issue had not been clearly included in the relief sought below or in the notice of appeal, that procedural history did not justify excluding it where the point was important and properly capable of argument.
4. The two issues were closely connected. The public-authority argument required consideration in the context of the primary Human Rights Act argument, particularly because existing Court of Appeal authority was said to bind the court on the status of a private care home. The Secretary of State remained willing to support the alternative issue by respondent’s notice.
5. Delay was relevant, but did not outweigh the need to determine both connected issues. The appeal could be listed promptly, on 24 January, and the written arguments had already been substantially reduced, making disposal within a day realistic.

• Court of Appeal (Civil Division): the renewed application for permission was granted. Permission was granted on the Human Rights Act argument, with leave to amend the notice of appeal to raise the public-authority argument.
• High Court, Queen’s Bench Division: Forbes J rejected both the residents’ primary Human Rights Act argument and the alternative public-authority argument.
• Permission stage before Buxton LJ: permission was refused to the residents on the primary argument and to the Secretary of State on the public-authority argument, the latter being treated as academic and affected by delay.