This assessment will analyse and critically evaluate the courts approach to determine what constitutes a ‘public authority’ within the meaning of section 6(3)(b) of the Human Rights Act 1998.
“The success of the Human Rights Act is dependent in particular on the effectiveness of section 6, since it is the mechanism through which the Act is intended to achieve the objectives of making the included Convention rights more accessible and easier to enforce”. Section 6 of the Human Rights Act 1998 is the duty to observe convention rights, however the obligation is only binding against ‘public authorities’.
The issue of what constitutes a ‘public authority’ for the purposes of the HRA have raised complications, due to the lack of a comprehensive definition of ‘public authority’ in the HRA. As a result the courts have had to determine what is a ‘public authority’ for the purposes of applying section 6 of the HRA. This has become controversial as it, “requires a judge to move beyond well understood and easily established criteria for the identification of a body.”
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There has been disagreement over the application the courts have taken of section 6(3)(b) of the HRA about the meaning of a ‘public authority’ and of ‘public functions’. It could be argued “the HRA is in danger of ‘stalling’ because of significant passivity on the part of public bodies generally in terms of their section 6 duty, the courts are, in some respects, restricting the supply of fuel to the HRA’s engine. They have interpreted section 6(3)(b) restrictively, with the result that many bodies fall outside the duty to observe Convention rights”. In order to understand the approach taken by the judiciary on what constitutes a ‘public authority’, it is essential to analyse their legal reasoning behind the case law adopted by the courts.
Section 6(1) provides that ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right.’
It appears that three types of ‘public authority’ were envisaged, the first is those expressly referred to in section 6(3)(a), “a court or a tribunal.” This is followed by section 6(3)(b) which states, “any person certain of whose functions are functions of a public nature,” creating two further types of ‘public authority’. Those referred to as ‘core public authorities’, these are the obvious public authorities such as government departments, police and prison service. The final variety is ‘functional bodies’ also known as hybrid bodies. This is where the courts decide whether the private bodies are subject to the HRA in respect of their ‘functions of a public nature’.
The issue of what is regarded as a ‘public authority’ has become far more significant recently, as services that were previously provided by the state are now contracting out to private bodies. Subsequently, if the courts find these private bodies of not providing ‘functions of a public nature’, many people will be losing out on their accessibility and enforceability of their rights, which was the main purpose of the HRA. Even though “there is a danger that the civil and political rights of the European Convention and public law generally will be lost in the process of transferring functions and assets from the state to non-state bodies”, this could be overcome if “the definition of public authority and public functions is drawn as widely as possible.”
This appears to have been the Governments intention, as Lord Chancellor stated, “We have also decided that we should apply the Bill to a wide rather than a narrow range of public authorities so as to provide as much protection as possible to those who claim their rights have been infringed.”
This emerges as surprising as one of the first cases to be considered by the Court of Appeal since the HRA came into force regarding the definition of ‘public authority’ suggested that the judiciary appear to be doing quite the opposite.
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In Poplar Housing and Regeneration Community Association Ltd v Donoghue, the decision appears to have been given a wide interpretation of what is a ‘public authority’ for the purposes of the HRA. However once you analyse the reasoning of the judgement it appears that cases concerning the effect of transferring functions out of the public sector are severely constricted to any potentially broad interpretation. Lord Woolf CJ concluded, “the fact that a body performs an activity which otherwise a public body would be under a duty to perform cannot mean that such performance is necessarily a public function. A public body in order to perform its public duties can use the services of a private body. Section 6 should not be applied so that if a private body provides such services, the nature of the functions are inevitably public.”
Courts are using an institutional test, where you look at the nature of the body in question, to determine if a body is a functional one.
The first mistake that emerges from this reasoning is that the courts are using these factors because they are using the same test as whether a body is subject to judicial review. As is identified by Lord Woolf, “any potentially broad scope should be bounded by the approach developed by the courts in identifying the bodies and activities subject to judicial review.” However at closer examination it appears that actually the courts should be using a functional test, not the institutional one.
Even regarding this, the decision still gave optimism that a broad legal definition was the route the courts would now take, however these hopes were premature, which can be shown in the R v Leonard Cheshire Foundation case.
In the Court of Appeal case of R v Leonard Cheshire Foundation it was concluded that the Leonard Cheshire Foundation, a charitable body, was not under s 6(3)(b) of HRA a “body certain of whose functions are functions of a public nature.” This is the most criticised case involving section 6 HRA, it involved the local authority contracting out its duty to provide accommodation to the Leonard Cheshire Foundation. Their fees were paid between the benefits and the local authority. LCF decided to close the home and the residents argued the closure would be a violation of Art 8 of the ECHR. The claimants failed and so appealed to the COA but were again unsuccessful. The courts distinguished this case from that of Donoghue, for the reason that there was not as close of a relationship between the two bodies and that LCF had not “stepped into the shoes” of the local authority so not exercising statutory powers. The courts narrow view of functional ‘public authority’ was confirmed.
Lord Woolf commented; “If the authority itself provides accommodation, it is providing a public function. It is also providing a public function if it makes arrangements for the accommodation to be provided by LCF. However, if a body which is a charity like LCF, provides accommodation to those to who the authority owes a duty…it does not follow that the charity is performing a public function.”
which influenced, and so Lord Woolf argued, Lord Woolf was also influenced by the fact that if LCF were held to be performing a function of a public nature then small contractors would be caught by the HRA if the same circumstances applied to them. The courts instinctively feel that this is wrong to subject small-scale businesses. He also had an issue of the abnormality that would arise if LCF was regarded as performing functions of a public nature, as it would be beneficial to those publicly paid clients but not in relation to the privately paid clients. This would appear unfair as there was no real distinction between the nature of the services provided those privately and those publicly funded. These persuaded Lord Woolf against finding LCF of ‘performing a public function and held “public funding is relevant to the nature of the functions carried out, but is not determinative”.
After the case of Leonard Cheshire, the Joint Committee on Human Rights produced a report in 2004;
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“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 Right principles.” So in regards to the development for a broad definition of the term ‘public authority’, it appears the courts are no further forward.
In the recent case of YL v Birmingham City Council it contains the same central issue to ‘Leonard Cheshire’. In this case an old lady was placed in a care home, run by Southern Health Care. Care home claimed that there were problems with YL’s husband and daughter’s behaviour on visits. The care homes response was to give 28 days notice for YL to leave the home. YL wanted a declaration that forcing to leave home would violate her convention rights. For this to take place, they first had to establish that the care home was a functional public body under s6(3)(b). The council contracted with Southern Cross Healthcare Ltd, a private business, to provide residential care in a home, which is owned and operated by the latter. The Council, by the local NHS Primary Care Trust, and by YL’s daughter, pays the fees for this service. The judgement at first instance and in the CoA was that Southern Cross was not a functional body exercising a function of a public nature.
A 3:2 majority in the HOL has confirmed this. The court took the same approach as in the case of “Leonard Cheshire,” but this time was re-enforced by the HOL. Decided that arranging and regulating care and accommodation is a public function but the actual provision of acre and accommodation is done by a private body and not a function of a public nature. The function the body is performing is the crucial question. The courts are resisting the notion that private bodies should be under a duty to respect Human Rights. As Lord Mance stated, “private and commercial motivation of the company, motivated by profit so doesn’t have to respect human rights.” Dissenting judge Lord Bingham concluded that Southern cross was a public, functional authority under s6(3)(b), provision of care and accommodation is something that must happen. How care is delivered doesn’t matter, fact is, it must be done.
It is clear that the majority in this case were concerned that if they did find Southern Cross a ‘public authority’ under s.6(3)(b) they would not have such a clear separation line. It appears that they were troubled that there would be no means by which they could in principle distinguish between the activities of southern cross with other activities which they felt should not be considered to be functions of a public nature.
There is no doctrine of precedent under the Convention, although the court will usually follow its previous decisions. On the contrary, the adoption of the principle of the Convention as a ‘living instrument’ means that the Convention is to be interpreted in the light of changing conditions. This may mean that older decisions can be disregard. However the judges of the COA admitted in YL v Birmingham that they found themselves bound by the decision of LCF.
A case which features hope on a wider definition of ‘public authority’ and ‘functions of a public nature’ is Aston Cantlow v Wallbank. In this case the issue was whether a Parochial Church Council was a core public authority or exercising a function of a public nature. It was held that Aston Cantlow was not a public authority and also not carrying out a function of a public nature. But the significance of this case is that Lord Nicholls discussed a policy favouring a wider interpretation of the ‘function of a public nature’ definition. He was keen on a wider definition “in order to further the statutory aim of promoting the observance of human rights values without depriving the bodies in question of the ability themselves to rely on Convention rights when necessary”
Many observers are hoping this will encourage judges in further cases to now apply a more generous approach when considering the application of s.6(3)(b) .
An alternative perspective is from Dawn Oliver who disagrees with the idea that judges applying a more generous interpretation of ‘functions of a public nature’ would be such an advantage. According to Dawn Oliver “a broad or generous interpretation could encourage litigation between private parties which would generate legal uncertainty and have negative effects for the many bodies, often charitable or not-for-profit, providing services for disadvantaged people.” Another argument she makes is that, for example in the Leonard Cheshire Case even if LCF were held to be a ‘public authority’ it would be likely that the home would have still closed down. And if you take into account all the legal costs which wont be recoverable from the claimants that could have been put to better use. From this perspective, if the definition became wider, more people would attempt to claim whereas the end result might be the same as if a narrow definition was used, wasting time and money.
The Joint Committee on Human Rights (JCHR) have issued another report after becoming increasingly concerned at the courts interpretation on the meaning “public authority” under s 6(3)(b).
The JCHR concluded that since its previous report three years ago, “there has been little evidence of progress towards an approach that gives effect to what we consider to have been Parliament’s original intention to bring rights home for everyone, including those who receive public services delivered by private bodies.” The courts have constructed great uncertainty over the issue of what will be considered a function of a public nature this “represents a serious failure to achieve the aspiration of a human rights culture in which Convention rights are secured for individuals without the need for formal legal proceedings..”
Even though reports that have been issued, support the introduction of a wider interpretation of ‘public authority’ it is all reliant on how the judges decide to deal with it as “without more profound changes in orthodox judicial thinking, there is a real danger that a new approach to s 6(3)(b) will fail to correct the existing deficit in human rights protection.”
A significant proportion of public services for older people is provided outside the public sector. An important fact is that residential care homes run by private and voluntary organisations account for 86% of all residential care. As stated from the perspective of Lord Bingham, “parliament can not have intended such people to be left without protection’. And in accordance with the above statement it is difficult to contemplate why the outcome should change regarding the nature of a function if it is contracted out. If it is a public function when being performed by the state, the equivalent should take place when contracted out.
Since the start of the assignment it has been established that the success of the HRA is dependant in particular on the effectiveness of Section 6 of the duty on public authorities to act consistently with Convention Rights. However it has now materialized from case law that the failure to define the terms, ‘public authority’ and ‘public function’ has produced a major flaw in the HRA. In a number of cases on this topic, in particular the Leonard Cheshire case the UK courts have shown adopting a restrictive interpretation of the definition of ‘public function’. This has caused vast numbers of very vulnerable people to not be protected by the convention rights of the HRA. A mistake which emerges from the reasoning of the courts is that they were using the same test for s6(3)(b) as they were for judicial review. But this appears to restrict the definition under s 6(3)(b) and a better test would actually be the institutional test.
In Leonard Cheshire it was held that a charitable body (LCF) was not a “body certain of whose functions are functions of a public nature,” under s6(3)(b). It could be argued that this allows the government to contract out its services, to private bodies that would not have to be in accordance with the HRA, leaving a gap of no protection for those using the private bodies services, which the public services would have provided. I have looked at two reports from the Joint Committee on Human Rights, and both reiterate that a wider definition should be applied to cases under s6 HRA. However instead a narrow approach again was applied in YL v Birmingham City Council following the previous decision in Leonard Cheshire that was highly criticised. Although the Aston Cantlow case appears to provide a glimmer of hope of the definition under section 6 HRA moving in the right direction by suggesting that from now on a wider application should be used. But it is evident that this can not take place unless the judges decide to accept and use a wider definition, which they so far have been reluctant to try.
So far the courts have failed to deliver the true intentions that section 6 of the Human Rights Act was designed to achieve, the increasing the accessibility and enforceability of the convention rights in domestic law. This problem has arisen, due to the development of case law interpreting the meaning of ‘public authority’ under section 6(3)(b) of the HRA. An important factor will now be whether the judges choose to acknowledge Lord Nicolls policy in Aston Cantlow which favoured a wider interpretation of ‘function of a public nature’ under s 6(3)(b). Hopefully they will not fall back into the trap of following the previous case law of Donoghue and Leonard Cheshire and administrating a narrow definition of ‘public authority’. As I feel this will restrict many peoples access to their human rights, especially regarding those most vulnerable like the disabled or elderly. To conclude I will look at the Joint Committee on Human Rights who argue 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. Unless other avenues or redress can be found, this situation is likely to deprive individuals of redress for breaches of their substantive Convention rights incorporated under the Human Rights Act. The situation created by the current state of law is unsatisfactory, unfair and inconsistent with the intention of Parliament.”
- R Costigan, Determining ‘functions of a public nature’ under the human rights act 1998: A New Approach, European Public Law (2006), volume 12, issue 4
- Jowell & Cooper, “Understanding Human Rights Principles”, 2001
- Leonard Cheshire again and beyond: private contractors, contract and s.6(3)(b) of the Human Rights Act, Catherine M.Donnelly, 2005
- Home Office, Private Sector Public Service: Human Rights for all 2000
- JCHR, Ninth Report of session 2006-07
- Helen Fenwick, Civil Liberties and Human Rights, fourth edition, 2007
- McDermont, Murag., The Elusive nature of the ‘public function’: Popular Housing and Regeneration Community Association ltd v Donoghue
- Oliver, D., functions of a public nature under the HRA (2004) PL329
- Craig, P., Contracting out, the HRA and the scope of judicial review, (2002) LQR, V.118