Austin criticises the minority approach for wrongly basing its interpretation of what amounts to a ‘private authority,’ on the private nature of the body providing public services and the private medium of service provision. In doing so the Lords fail to recognise the public nature of the function performed and thus ignore the functional basis of Section 6 (3) (b) Human Rights Act 1998 (HRA).
Austin suggests that the provision of care and accommodation under Section 21 of the National Assistance Act 1948 is a public function due to the public funds received by care providers and the public interest in the services provided to the vulnerable in society.He then examines the aftermath of the House of Lords’ decision in YL suggesting that the narrow YL ruling combined with an increasingly privatised state will lead to the emasculation of the HRA. Finally, solutions aresuggested to YL; either judicial overrule by the ECHR or the House of Lords or alternately the need for new legislation to clarify the definition of a public authority under the HRA.