Why does the definition of ‘public authority’ matter?
S6 Human Rights Act 1998 (HRA) makes it unlawful for a public authority to act in a way that is incompatible with a person’s rights under the European Convention on Human Rights.
Another way of putting this is to say that s6 imposes a duty on all public authorities to act compatibly with Convention rights.
So, if a body is a public authority for the purpose of s6 HRA, this means that its decisions can be challenged in the courts where they interfere with someone’s Convention right. It also means that the court can overturn or quash the decision in the event that the challenge is successful.
What is the definition of ‘public authority’?
S6(3) HRA defines a ‘public authority’ as including:
(a) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature
In other words, the definition of ‘public authority’ includes anyone performing a ‘public function’.
Okay, what is the definition of a ‘public function’ then?
There isn’t one.
Why not?
Parliament considered that it was better to leave ‘functions of a public nature’ undefined in order to encourage a broad approach by the courts. As the Home Secretary said during parliamentary debates:
“As we are dealing with public functions and with an evolving situation, we believe that the test must relate to the substance and nature of the act, not to the form and legal personality.”((Hansard, HC Debates, 17 June 1998, col 433)))
However, s6(5) HRA does provide that:
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.
Why does s6(5) say that?
Essentially, the legislative scheme of HRA distinguishes between ‘pure’ public authorities (eg government departments, local government, police, etc) and ‘hybrid’ public authorities.
What’s a ‘hybrid’ public authority?
A ‘hybrid’ body (also known as a ‘functional’ public authority) is one that is only a public authority by virtue of the fact that it is performing a public function (as opposed to a ‘pure’ public authority, such as a government department, that is a public body no matter what it does). As the Lord Chancellor explained during parliamentary debates:
“A private security company would be exercising public functions in relation to the management of a contracted-out prison but would be acting privately when, for example, guarding commercial premises. Doctors in general practice would be public authorities in relation to their National Health Service functions, but not in relation to their private patients.“((Hansard, HL Debates, 24 November 1997, col 811))
Why is this important?
Because many ‘pure’ public bodies increasingly rely private contractors (or ‘outsourcing’) to fulfil public functions. For example, local authorities will often contract with private accommodation firms to supply emergency housing.
So the private body would becomes a ‘hybrid’ or ‘functional’ public authority for the purposes of the HRA?
In principle, yes. But in the 2002 case of Callin, Heather and Ward v Leonard Cheshire (the Leonard Cheshire case)(([2002] EWCA Civ 366)), the Court of Appeal held that state-funded patients in a privately-operated care home could not sue the private care home under the HRA, because the provision of care was not a ‘public function’ under s6(3)(b) HRA.
Why not?
The Court of Appeal concluded that a private body carrying out a public function on behalf of a public body would only be a ‘public authority’ under the HRA if it could be shown that the function itself has a ‘public flavour’. Because accommodation in a care home was something that could be done by a private provider, it could not be said that the provision of care was necessarily a ‘public function’ under s6(3)(b) HRA, even though the local authority in Leonard Cheshire was under a statutory duty to provide care to its patients.
So what’s wrong with this approach?
Since the decision in Leonard Cheshire, the courts have continued to adopt a narrow approach to the definition of ‘public authority’, meaning that many state functions are being outsourced by private providers with no potential redress in the event that a person’s Convention rights are violated. As the Joint Committee on Human Rights has noted, this has led to a significant ‘protection gap’ under the HRA.
In JUSTICE’s view, the decision in Leonard Cheshire is mistaken for at least three reasons:
First, it is inconsistent with the intention of Parliament in enacting the HRA, which was to enable individuals whose rights are affected by the functions of public bodies to have redress, even where those functions are carried out by private bodies. See for example the speech of Lord Bingham in R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs (No.2)(([2005] UKHL 57 ))who described the purpose of s6 HRA ‘to enable those subject to the jurisdiction of the United Kingdom and able to establish violations by United Kingdom public authorities to present their claims in the domestic courts of this country and not only in Strasbourg’ (para 22).
Secondly, it is inconsistent with the decision of the House of Lords in the 2003 case of Aston Cantlow, in which Lord Hope made clear that ‘it is the function that the person is performing that is determinative of the question whether it is, for the purposes of that case, a “hybrid” public authority’, whereas the focus in assessing whether a body comes within the ‘core’ category of public authorities is upon ‘the nature of the person itself, not the functions which it may perform’ (para 41).
Lastly, it is inconsistent with the approach of the European Court of Human Rights, which has made clear that ‘the State cannot absolve itself from responsibility … by delegating its obligations to private bodies or individuals’.((Wos v Poland, Application Number 22860/02, 1 March 2005, para 60))
What are the latest developments?
In January 2007, the Court of Appeal gave judgment in the case of YL v Birmingham City Council, in which it considered itself bound to follow its previous decision in Leonard Cheshire.
However, the matter is now on appeal to the House of Lords and will be heard on 30 April. JUSTICE is intervening in the case, together with Liberty and the British Institute of Human Rights, to argue for a broad interpretation of ‘public function’ and ‘public authority’.
Where can I get more information?
Callin, Heather and Ward v Leonard Cheshire [2002] EWCA Civ 366
JUSTICE’s 2003 submission to the Joint Committee on Human Rights inquiry into the definition of public authority under the HRA
Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37
Joint Committee on Human Rights 2004 report on the definition of public authority under the HRA
YL v Birmingham City Council [2007] EWCA Civ 27
Joint Committee on Human Rights 2007 report on the definition of public authority under the HRA