The case for the Human Rights Act part 1 of 3 responses to the commission on a bill of rights: hra plus not minus

Section6: Acts of public authorities and meaning of 'public authority'

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4 Section6: Acts of public authorities and meaning of 'public authority'

  1. Article 1 of the European Convention requires the State to secure ECHR rights to everyone within its jurisdiction: the Human Rights Act (HRA) ‘ effect to article 1 by securing to people in the United Kingdom the rights and freedoms of the convention.’126

  2. Under the Human Rights Act it is unlawful for a public authority to act in a way which is incompatible with a Convention right. This obligation does not apply if under the law the public authority could not have acted differently.

  3. Section 6 HRA is designed to identify those bodies that are carrying out functions which will engage the responsibility of the United Kingdom before the European Court of Human Rights.127 These bodies are termed ‘public authorities.’ However, section 6 contains no definition of ‘public authority’ apart from expressly including courts and tribunals, and other so-called ‘hybrid’ bodies when they are performing ‘functions of a public nature’.

How has 'public authority' been defined?

  1. Section 6 provides that:

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.


(3) In this section ‘public authority’ includes—

a court or tribunal, and

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.


(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

  1. In parliamentary debates during the passage of the HRA, the Lord Chancellor gave an explanation of ‘pure’ public authorities:

‘Clause 6(1) refers to a ‘public authority’ without defining the term. In many cases it will be obvious to the courts that they are dealing with a public authority. In respect of Government departments, for example, or police officers, or prison officers, or immigration officers, or local authorities, there can be no doubt that the body in question is a public authority.’128

  1. Section 6(3) and 6(5) HRA extends obligations to ‘hybrid’ bodies by refining the definition of ‘public authority’. The policy intention behind this drafting was explained as follows:

‘....we wanted a realistic and modern definition of the state so as to provide correspondingly wide protection against an abuse of human rights. Accordingly, liability under the bill would go beyond the narrow category of central and local government and the police – the organisations that represent a minimalist view of what constitutes the state.’129

  1. It was further explained that this mechanism was designed to ensure that responsibility under the HRA would generally follow the outsourcing of state functions.

‘The second category contains organisations with a mix of public and private functions. One of the things with which we had to wrestle was the fact that many bodies, especially over the past 20 years, have performed public functions which are private, partly as a result of privatisation and partly as a result of contracting out. [........] Private security firms contract to run prisons: what Group 4, for example, does as a plc contracting with other bodies is nothing whatever to do with the state, but, plainly, where it runs a prison, it may be acting in the shoes of the state.’130

  1. In the House of Lords debates, the Lord Chancellor confirmed that persons or organisations delivering privatised or contracted-out public services were intended to be brought within the scope of the Act by the ‘public function’ provision.

‘The provision is there to include bodies which are not manifestly public authorities, but some of whose functions only are of a public nature. It is relevant to cases where the courts are not sure whether they are looking at a public authority in the full-blooded Clause 6(1) sense with regard to those bodies that fall into the grey area between public and private. The bill reflects the decision to include as ‘public authorities’ bodies which have some public functions and some private functions’. 131

How section 6 HRA has worked in practice

  1. Applying the definition of a ‘pure’ public authority has proved relatively straightforward and the courts appear to have had little difficulty identifying which bodies fall within the scope of section 6(1) HRA. In the case of Aston Cantlow, Lord Nicholls observed:

‘.....the phrase 'a public authority' in section 6(1) is essentially a reference to a body whose nature is governmental in a broad sense of that expression. It is in respect of organisations of this nature that the government is answerable under the European Convention on Human Rights. Hence, under the Human Rights Act a body of this nature is required to act compatibly with Convention rights in everything it does.’132

CASE STUDY: Human Rights in Healthcare

The Commission's Human Rights Inquiry found that the Human Rights Act has generally had a positive impact on the delivery of public services. Where the HRA has been used effectively by public authorities it has improved the design and delivery of their services in a manner that respects people’s human rights and improves staff satisfaction and confidence in their decision making.133

The Human Rights Inquiry looked at a range of examples of how the HRA and improved public service delivery in sectors, including health and social care, policing and criminal justice, local authority services, and services for children and young people.

One important heathcare project was the Human Rights in Healthcare initiative. This involved five primary care and National Health Service trusts in England in a pilot scheme to adopt a human rights approach, sponsored by the Department of Health with the participation of the British Institute of Human Rights.134

In evidence to the Commission's Inquiry the Permanent Secretary described its effects:

‘What [the pilot project] does is help to focus attention of the organisation on things which are absolutely crucial to quality services which is about fair, effective and personal services to people. It goes right to the core values and service ambitions of both health and social care ... What it has proved is an energising way of using the human rights ambitions and features to get an organisation thinking about how it does its job better, which seems to me to be absolutely what it should be about.’
Mr Hugh Taylor, Permanent Secretary, Department of Health – transcript 30.10.08

During the period of the Inquiry, the Department of Health also published an independent evaluation of the Human Rights in Healthcare initiative, conducted by Ipsos MORI, which drew the following conclusion:

‘Our evidence to date does demonstrate that a human rights based approach to health and social care can, and will increasingly in the future, have a tangible impact on the treatment and care of service users.’
(Department of Health Evaluation, 2008)135

The Human Rights in Healthcare initiative demonstrated how the HRA can tangibly improve the delivery of public services.

The scope of the ‘public function’ test

  1. Defining the extent to which section (6)(3)(b) HRA encompasses the functions of private and third sector organisations has in practice proved more problematic than identifying ‘core’ public authorities under section 6(1). The courts have generally taken a conservative approach to functions performed by private or third sector bodies, showing reluctance to treat these as public functions under the HRA. As we observe below, the Joint Committee on Human Rights took the view that this is a more restrictive interpretation than Parliament intended, potentially depriving numerous people from the human rights protection offered by the HRA.

  2. Case law from the European Court of Human Rights (ECtHR) gives little clear guidance on applying the public function test, apart from recognising that in some circumstances the State has positive obligations to regulate or control the activities of private persons, where the human rights of an individual would otherwise be at risk; and that the State may in some circumstances retain responsibility for the conduct of private law institutions to which it has delegated state powers.136

  3. There have been two key decisions by the House of Lords on this issue: the Aston Cantlow case, cited above; and YL (by her litigation friend the Official Solicitor) v. Birmingham City Council and Others [2007] UKHL 27. The House of Lords held that there is ‘no single test of universal application’ in determining whether a body is a public authority137 and that the courts should adopt a factor-based approach to this question.138 The YL decision confirmed that the factors to be taken into account include:

  • The extent to which, in carrying out the relevant function, the body is publicly funded; however, if a body receives public money in payment for commercial services under a contract, this would not suggest that the body is performing a public function.

  • Whether the body is exercising statutory powers; however, this depends on why the powers have been conferred. If for private, religious or purely commercial purposes, it does not support the conclusion that the functions are of a public nature.

  • Whether the body is taking the place of central government or local authorities; this principle may be easy to apply where powers are formally delegated to the body concerned.

  • Whether the body is providing a public service, normally one of a governmental nature. This should not be confused with functions which are in the public interest or for the public benefit, as many private bodies (private schools, private hospitals, private landlords etc) provide goods or services that are in the public interest.

  • The fact that the function is subject to statutory regulation, or is one normally carried out by a public body, does not necessarily mean that it is a public function when carried out by a potentially hybrid body. For example, applying these tests, the courts have confirmed that public functions were performed by hospital managers of a private psychiatric hospital where patients were detained under the Mental Health Act 1983.139

Areas where clarification of ‘public function’ has been needed

  1. It has not always proved easy to determine whether certain types of function are ‘public’ within the meaning of section 6 HRA. There are two areas of public service provision where it has fallen to the courts to clarify whether private or third sector organisations are performing public functions under the HRA; and a third important area where the scope of the HRA has yet to be clarified.

Social care

  1. In the YL case cited above, the House of Lords held by a 3-2 majority that the HRA does not apply to private and voluntary sector care homes providing residential social care services under contract to local authorities. This lacuna in the scope of the HRA was subsequently closed by Parliament, through section 145 Health and Social Care Act 2008. This section provides that the meaning of ‘public function’ under S 6(3)(b) HRA includes providing care home accommodation with nursing or personal care for an individual, where this care is publicly arranged.

  2. The legal impact of the YL decision almost certainly extends to the majority of home care services, as these are arranged by local authorities under similar statutory provisions (section 29 National Assistance Act 1948). However, section 145 of the Health and Social Care Act 2008 only brings residential social care within the scope of the HRA.

  3. This anomaly for home care, combined with significant changes in the provision of home care over the past two decades, has led to the majority of home care services falling outside the scope of the HRA. In 1993, the proportion of publicly funded home care provided by the private and voluntary sectors was less than 5%, but by 2009/2010 this had increased to 84%.140

Provision of accommodation by registered social landlords

  1. In the case of R (Weaver) v London & Quadrant Housing Trust,141 the Court of Appeal decided that a housing association was performing a function of a public nature when allocating and managing social housing. In drawing this conclusion, the court took into account the following factors:

  • The work of the housing association was subsidised by the State

  • The housing association was granted special intrusive powers by law, such as the power to apply for an anti-social behaviour order

  • It was working closely with the local authority to help achieve the latter’s duties under the law

  • It was providing a public service of a type which would normally be provided by the government – ie, providing housing below market rents

  1. In this case, the Court of Appeal made it clear that its decision only related to London and Quadrant Housing Trust. However, in the wake of the Weaver decision it seems likely that other, similar registered social landlords are also within the scope of the HRA142.

Options considered by the JCHR for expanding and clarifying the meaning of ‘public function’

  1. The Joint Committee on Human Rights (JCHR) most recently considered the meaning of ‘public authority’ and ‘public function’ in an inquiry report published in March 2007.143 The JCHR concluded that the inquiry evidence reinforced the conclusion of its predecessor Committee ‘that the disparities in human rights protection that arise from the case law on the meaning of public authority are unjust and without basis in human rights principles’. They also considered that these disparities frustrated the intentions of Parliament.

  2. The JCHR looked at several options for overcoming this problem; further government guidance; further litigation; and a legislative solution.

  3. Further government guidance: the JCHR recommended that, as a stop-gap solution, current guidance on building the HRA into contracts be improved and given wide circulation. However, they emphasised that this would not be an effective substitute for the direct application of the HRA as Parliament intended.

  4. Further litigation: Referring to the Johnson case (this case was later consolidated with YL in the House of Lords) the JCHR doubted that litigation would lead to an enduring and effective legal solution: ‘Waiting for a solution to arise from the evolution of the law in this area through judicial interpretation may mean that uncertainty surrounding the application of the HRA will continue for many years. It could lead to a serious risk of discrepancies across public service delivery.’

  5. Further legislation: the JCHR concluded that that legislation was the only effective solution to ensure that ‘public authority’ was interpreted in the way that Parliament intended. It strongly resisted the idea of listing individual types or categories of ‘public authority’ in a schedule to the HRA, as this would be too inflexible. Extending the scope of the HRA sector by sector was also rejected, on the basis that this would reduce the impetus to find a general solution and would compound legal uncertainty in other sectors. Although the JCHR did not favour a direct amendment to the HRA itself, it supported the idea of a separate, interpretative statute. This could be worded as follows:

‘For the purposes of s. 6(3)(b) of the Human Rights Act 1998, a function of a public nature includes a function performed pursuant to a contract or other arrangement with a public authority which is under a duty to perform the function.’144

Our conclusions and recommendations

  1. The flexibility in the meaning of ‘public authority’ has been a defining feature of the HRA, and one of its most innovative legal mechanisms. We conclude that section 6(1) has been successful in defining ‘pure’ public authorities carrying out functions which engage the State’s responsibilities under the Convention. However, the application of sections 6(2) and 6(3) has been more problematic.

  2. As noted above, article 1 of the European Convention requires the State to secure ECHR rights to everyone within its jurisdiction. It can be argued that the interpretation by the courts of S6(3)(b) HRA, combined with the increasing role of the private sector – and to a lesser extent the third sector– in delivering public services, has undermined the UK’s compliance with article 1. Similar concerns were expressed by the JCHR in its 2007 report on this issue:

‘ We consider that the practical implications of the current case law on the meaning of public authority are such that some service users are deprived of a right to an effective remedy for any violation of their Convention rights, with a significant risk of incompatibility with the United Kingdom’s responsibilities under article 1 and article 13 ECHR. We consider that the practical implications of the current case law for vulnerable service users are particularly stark. In the absence of any compelling evidence that the public services market would be undermined by the application of the HRA, we consider there is an urgent need for action to ensure that the HRA is applied as in our view it was intended by Parliament.145

  1. The Commission shares the JCHR’s conclusions. We therefore recommend that if any British Bill of Rights were developed, it should be used as a vehicle for clarifying the definition of ‘public function’ under HRA. As a starting point, the wording proposed by in the 2007 JCHR report to achieve this clarification could be adopted.

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