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The Human Rights Act 1998 was enacted by the British Parliament with the stated purpose of giving further effects to rights and freedom guaranteed under the European Convention on Human Rights 1959. The proponents proclaim that the HRA establishes a ‘floor below which standards will not be allowed to fall’. At the same time Lord Irvine cautioned that the task of translating the text of ECHR into principles of domestic law will take the centre stage when British courts would face the challenge to interpret an instrument that enumerates the fundamental rights of people.
It is asserted that an overtly restricted interpretation of the key provisions of the HRA in respect of ‘public authority’ and ‘victim’ has unduly narrowed the application of the Act. The present essay attempts to analyse and evaluate the above stated assertion. Given the word limit, the present essay would focus upon the decisions of the British courts and analyse whether their interpretation of Ss. 6 and 7 has restricted the application of the Human Rights Act 1998.
Human Rights Act 1998: Bringing Rights Home?
The HRA internalises into domestic law the rights guaranteed by the ECHR. The government’s white paper stated the purpose of the HRA is ‘to make more accessible the rights which the British people already enjoy under the Convention . . . to bring those rights home’. Tony Blair, the then Prime Minister, announced in the White Paper that the government is committed to a comprehensive program of constitutional reform and believe it right to increase individual rights, to decentralise power, to open up government and to reform parliament. According to Jack Straw, the key component to modernising the society and refreshing the society is to bring about a better balance between the rights and responsibilities, between the powers of the state and the freedom of the individual. In order to fulfil its purpose of giving ‘further effect to rights and freedoms’ under the ECHR, the HRA requires the UK courts to interpret Acts of Parliament in way that makes them compatible with the Convention rights, but only if ‘possible to do so’. It further places legally enforceable duty government bodies and other ‘public authorities’ to act in a way that is compatible with the Convention rights unless a statute which cannot be interpreted for compatibility requires otherwise. Singh predicted that incorporation of ECHR in HRA would reduce the risk that the rules and practices that are violate the ECHR are allowed to go unchecked by the national courts.
However it is pertinent to mention here that the HRA does not incorporate the Convention rights, made particularly clear by Lord Irvine when he stated that ‘The ECHR under [the HRA] is not made part of our law . . . it does not make the Convention directly justiciable’. The similar findings were made by the courts, which stressed in the Lambert that the purpose of the HRA was not to incorporate the rights in the ECHR into domestic law. The HRA establishes the supremacy of the Parliament and in case of conflict between a provision enshrined in an Act that the Parliament has passed and a Convention right, it is the Act which will remain in force.
Public Authority: Interpretation by Court
The HRA gives effect to the Convention rights by imposing an obligation upon the public authorities not to act incompatibly with the Convention Rights. The term “public authority” includes (a) a court or tribunal, and (b) any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. Two types of authorities are contemplated by S.6 – core/standard authorities and hybrid/functional authorities. The ‘act’ for the purpose of the HRA includes a failure to act but does not include a failure to introduce in Parliament a proposal for legislation; or make any primary legislation or remedial order. The obligation however does not apply to an act if (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions’.
Since the Act places the primary responsibility for ensuring the compliance with the Convention on ‘public authorities’, the scope of the Act therefore crucially depends on the meaning given to the phrase ‘public authority’. An academic commentator cautioned that it is important that the scope of the Act is not unnecessarily restricted by too narrow an interpretation of ‘public authority’ or ‘public function’, especially in the modern time when so many governmental functions are contracted out to agencies or private companies. So far the case law concerning the meaning of public authority has been obscure and disappointing as the tendency of the courts has been to restrict the application of S.6 through a vigilant approach towards interpretation of “public authority”. However there have now been a number of cases addressing the issues raised by S.6, the interpretation of obligation not ‘to act inconsistently with the Convention’ is expanded for the bodies that satisfy the definition of ‘public authority’ under the Act.
Definition of ‘Public Authorities’
While S.6(3)(b) includes the private bodies in the definition of ‘public authority’ so insofar as they are performing public function yet S.3(5) excludes its application where the nature of the act in question is private. In the Donoghue, the court held that the fact that a private body is performing an act that would be public if a public body performs it under a duty to perform can not be the sole ground to classify it as a public authority. Alternatively, the courts need to look into whether “a feature or combination of features…imposed a public character or stamp on the act”; in borderline cases the question would be “one of fact and degree”. As per Lord Woolf, ‘what can make an act, which would otherwise be private, public is a feature or a combination of features which impose a public character or stamp on the act’, e.g. statutory authority, extent of control, ‘more closely the acts that could be of a private nature are enmeshed in the activities of a public body’. Later in the Partnership in Care Ltd, while referring to the Donoghue, the court after examining whether other obligations existed which made the decision an act of a public nature found that Partnerships in Care was exercising functions of a public nature.
In the Heather, the court of appeal gave regard to the degree of public funding and lack of statutory powers and held that Leonard Cheshire was not standing in shoes of social service and hence was not a public authority.
In Re Beer, after looking into the facts including establishment pursuant to the statutory powers of the Council and office in the Council offices, the court held that the Hampshire Farmer’s Markets Ltd had stepped into shoes of council and hence was a public authority.
In Aston Cantlow v Wallbank, the House of Lords decided that a parochial church council (PCC) was not a functional public authority. Lord Nicholls observed ‘what matters is whether the particular act done by the plaintiff council of which the complaint is made is a private act as contrasted with the discharge of a public function’. He further observed that the factors to be taken into account include the extent to which in carrying out the relevant function the body is publicly funded, or is exercising statutory powers, or is taking the place of central government or local authorities, or is providing a public service’.
In R(West) v Lloyds the Court of Appeal considered the fact that Lloyds regulated its’ members activities did not make it a governmental organisation. If the state was failing to protect investors, then it was the FSA which was answerable not Lloyds. The Court of Appeal identified various different principles to be derived from the bases in reaching the conclusion that Lloyds was not a public authority.
Courts as S.6 “Public Authorities”
The definition of ‘public authorities’ include a court or tribunal and the House of Lords in its judicial capacity obliging them not to act in a way which is incompatible with a Convention right. The duty of prospective effect has been extended to its application to private law proceedings and criminal appeals. In Wilson v First County Trust Ltd, the Court of Appeal raised the Convention rights proprio motu and considered itself bound by S. 6(1) and 6(3)(a) notwithstanding that the order under appeal had been made prior to the coming into effect of the HRA.
In the Lambert, the House of Lords validated that the effect of S. 6(1) is not restricted to the court’s procedural role rather encompasses both statute and common law. Nonetheless the majority did not favour the extension of S.6 obligation to pre HRA adjudication of appeals from convictions. Additionally, the court concluded in the Heather that the court, itself a S.6 public authority, is obliged to develop private law so as to provide remedies for those whose Convention rights had been interfered with. Finally in the Austin Hall Building Ltd. the court observed the status of the adjudication and concluded that since adjudication proceedings are not “legal proceedings” leading to the determination of civil rights and obligations under Article 6, hence an adjudicator does not satisfy HRA’s definition of “tribunal”.
Till date, the approach of the court towards the interpretation of ‘public authorities’ has been far from satisfactory making it very difficult to distil any established principle under HRA. The Joint Parliamentary Committee on Human Right in its report on the Meaning of Public Authority on the Human Rights Act has also criticized insofar the way the case law was developed.
Locus Standi: Who Can Bring Proceedings?
Victims are at the centre of the human rights law and get a special consideration for example Article 34 of the European Convention on Human Rights (ECHR) grants the right of petition to anyone claiming to be a "victim" of a violation of the Convention. Similarly s.7 HRA, allows an individual who is a 'victim' of "an unlawful act of a public authority" to take that authority to court. S.7 (7) defines ‘victim’ by reference to Article 34 of the Convention which include any person, non governmental organisation or group of individuals within the periphery of the term ‘victim’. The term may be understood to apply to someone who has been directly affected or likely to be affected as a result of an act of the public authority and not the one who merely has ‘sufficient interest’ in relation to the unlawful act. Generally, a person bringing claim against a public authority under the HRA must commence the court proceedings within one year of the act complained of; or within such longer period as the court may regard as 'equitable' having regard to all the circumstances; or subject to any rule imposing a stricter time limit in relation to the particular procedures. Although courts fall within the definition of ‘public authorities’ yet proceedings in respect of a court’s action or decision alleging a breach of Convention rights, may not be brought as a freestanding action. A challenge may only be brought where there is a right of appeal, or on application for judicial review, or in any other forum allowed by the relevant rules.
Additionally the UN's Human Rights Committee can receive communications from "victims" of transgressions of the ICCPR by virtue of the Optional Protocol of the International Covenant on Civil and Political Rights. The UN ‘draft basic Principles and Guidelines’ for victims of violations of international human rights and humanitarian law. These affirm that "victims should be treated with compassion and respect for their dignity, have their right of access to justice and redress mechanisms fully respected….together with the expeditious development of appropriate rights and remedies...”.
The HRA requires before awarding the damage, the court must be satisfied that the award is necessary to afford just satisfaction to the person in whose favor it is made. It further requires the court to take into account principles applied by the Strasbourg Court in deciding whether to award compensation for a violation of the Convention, and the amount of any award. The primary principle of victim compensation is that the victim should, as far as possible, be placed in the same position as if the violation of his or her rights had not occurred. In the Taylor the court observed that it is not necessary for a victim to show that rights have been violated by ‘an individual measure of implementation’ and it is sufficient to be at risk of being directly affected. Lord Woolf further observed that the language of s.7(1) makes it very clear that members of the public should not use these provisions if they are not adversely affected by them to change legislation because they consider that the legislation is incompatible with the Convention. As the HRA does not require private bodies and individuals to respect Convention rights, a proceeding can not be brought against them under the HRA. However, the court itself being a public authority under the HRA is required to interpret existing laws and to develop laws in a manner that is compatible with Convention rights.
The HRA seeks to protect the human rights of individuals against the abuse of power by the state, broadly defined, rather than to protect them against each other. From the outset it was accepted that the definition who should be a public authority and what is a public function for the purposes of section 6 should be given a generous interpretation. However the lack of clarity in the current case law demonstrates that that the definition of a public authority is narrow under the HRA than it is when considering whether a decision is amenable to judicial review. The Joint Committee report on The Meaning of Public Authorities under the HRA also views that ‘The disparities in human rights protection that arise from the current case law on the meaning of public authority are unjust and without basis in human rights principles . . . The situation created by the current state of the law is unsatisfactory, unfair, and inconsistent with the intention of Parliament’. The Joint report of Law Commission and Scottish Law Commission on Damages under the Human Rights Act 1998 also concluded that while the rules applied by the British courts are not significantly different to the approach of the Strasbourg Court, there are certain practices of the Strasbourg Court (like awarded compensation in relation to some forms of non-pecuniary, or intangible, loss - such as for loss of relationship between parent and child) have not yet been recognized by the courts and thus require further development of the law by the courts in this country.
It is worth mentioning that the judges are neither well placed nor qualified to make decisions in an area of law that may require the reconciliation and balancing of a broad range of conflicting interests and viewpoints. The Parliament under HRA has given the courts power to develop the law but within the framework set out by the Act and subject to the duties which must be served by the exercise of the power. It can not be forgotten that it is an area of law that may require a radical policy change and has various economic and social implications. It is hence submitted that as Joint Parliamentary Committee has correctly pointed out, it is open to the House of Lords to rectify the deficiencies in the case law by reinterpreting the Ss 6 and 7 in the future