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The concept of functional public authorities under the Human Rights Act 1998 (HRA) and the implications of the Cheshire case for commercial entities providing services formerly provided by the state. It discusses the test for identifying functional public authorities, the role of private entities in protecting human rights, and potential solutions for ensuring compliance with Convention rights.
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1. The author would like to thank Richard Clayton QC and Steven Kovats for their helpful comments on this article. 2. Hansard , HL Deb, Vol. 583; col. 811 (24 November 2001). See also Clayton and Tomlinson, The Law of Human Rights. (Oxford University Press, 2000) para. 5–03.
[2002] JR Law 249
3. [2001] EWHC Admin 429 [2001] ACD 75; see Johnston [2001] JR 250.
“It would be very tempting for the courts, committed to maximising the protection of Convention rights, to give a wide meaning to ‘public authority’ but this could deprive a wide range of bodies of the protection of the [Human Rights] Act.”
This is because it would render such bodies outwith Art. 34 of the Convention, which refers to “any person, non-governmental organisation or group of individuals”, and therefore they would not be classified as victims.^12
[2002] JR Law 251
9. R v Servite Houses ex p. Goldsmith (2000) 3 CCLR 325 at 348; although he later declined to state whether the preferable solution was the imposition of public law standards on private bodies whose powers stem from contract, or by greater control over public authorities at the time they first make contractual arrangements (at p. 353). 10. “Constitutionalism and the the Contractualisation of Government in the United Kingdom” , in Taggart (ed.), The Province of Administrative Law (Hart Publishing, 1997). 11. [2000] PL 476 at 492. 12. This view appears to be supported by R (Westminster City Council) v Mayor of London (unreported) 31 July 2002, in which Maurice Kay J held that the London Borough of Kensington and Chelsea was not a victim under the HRA.
252 Functional Public Authorities under the Human Rights Act [2002] JR
13. In Cheshire , at para. 34. 14. Perhaps under the Contracts (Rights of Third Parties) Act 1999. 15. See also Kate Markus, Delivering Rights (Hart Publishing, forthcoming); Monica Carss-Frisk QC, “Public Authorities: The Developing Definition” [2002] EHRLR 319.