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Understanding Scope of Public Authorities & Their Obligations under Human Rights Act, Study notes of Human Rights

University of East London (UEL)Human Rights

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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Functional Public Authorities under the
Human Rights Act
1
Vikram Sachdeva
39 Essex Street
Introduction
1. The Human Rights Act 1998 (HRA) incorporates European Convention jurisprudence
indirectly, making it unlawful for a “public authority” to act in a way which is incom-
patible with a Convention right (s. 6).
2. The meaning of “public authority” within that context is not exhaustively defined. The
Act provides a definition of sorts in s. 6(3), which “includes” a court or tribunal, and
also “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 (other than the House of Lords in its judicial capacity).
This group will not be liable for acts of a private nature (s. 6(5)). The latter category has
been described as constituting “functional” or “hybrid” public authorities.
3. The width of the category of hybrid public authorities has great significance: the nar-
rower its scope, the fewer bodies on which there will be a legal obligation not to breach
Convention rights. The Government made it clear that it favoured a wide definition.
For instance, the Lord Chancellor stated that “doctors in general practice would be
public authorities in relation to their National Health Service functions, but not in
relation to their private patients”.
2
4. In Poplar Housing and Regeneration Community Association v Donoghue [2001] EWCA Civ
595 [2002] QB 48 the Court of Appeal was faced with the question whether a housing
association ranked as a public authority within the HRA on the facts of the case. A ten-
ant appealed against a possession order granted under the Housing Act 1988, s. 21 in
favour of her landlord, a housing association. The tenant contended that the hearing
should have been adjourned so that she could adduce fresh evidence as to whether
Poplar was a public body for the purposes of a declaration of incompatibility, and
whether the mandatory nature of s. 21 constituted a breach of her rights under Arts 6
and 8 of the Convention.
5. At first instance the judge found against the tenant, who then appealed. Lord Woolf CJ
gave the judgment of the court, holding (at para. 66) that:
“while activities of housing associations need not involve the performance of public
functions in this case, in providing accommodation for the defendant and then seeking
possession, the role of Poplar is so closely assimilated to that of Tower Hamlets that it
was performing public and not private functions.”
248 [2002] JR
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.
pf3
pf4
pf5

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Functional Public Authorities under the

Human Rights Act

Vikram Sachdeva

39 Essex Street

Introduction

  1. The Human Rights Act 1998 (HRA) incorporates European Convention jurisprudence indirectly, making it unlawful for a “public authority” to act in a way which is incom- patible with a Convention right (s. 6).
  2. The meaning of “public authority” within that context is not exhaustively defined. The Act provides a definition of sorts in s. 6(3), which “includes” a court or tribunal, and also “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 (other than the House of Lords in its judicial capacity). This group will not be liable for acts of a private nature (s. 6(5)). The latter category has been described as constituting “functional” or “hybrid” public authorities.
  3. The width of the category of hybrid public authorities has great significance: the nar- rower its scope, the fewer bodies on which there will be a legal obligation not to breach Convention rights. The Government made it clear that it favoured a wide definition. For instance, the Lord Chancellor stated that “doctors in general practice would be public authorities in relation to their National Health Service functions, but not in relation to their private patients”. 2
  4. In Poplar Housing and Regeneration Community Association v Donoghue [2001] EWCA Civ 595 [2002] QB 48 the Court of Appeal was faced with the question whether a housing association ranked as a public authority within the HRA on the facts of the case. A ten- ant appealed against a possession order granted under the Housing Act 1988, s. 21 in favour of her landlord, a housing association. The tenant contended that the hearing should have been adjourned so that she could adduce fresh evidence as to whether Poplar was a public body for the purposes of a declaration of incompatibility, and whether the mandatory nature of s. 21 constituted a breach of her rights under Arts 6 and 8 of the Convention.
  5. At first instance the judge found against the tenant, who then appealed. Lord Woolf CJ gave the judgment of the court, holding (at para. 66) that: “while activities of housing associations need not involve the performance of public functions in this case, in providing accommodation for the defendant and then seeking possession, the role of Poplar is so closely assimilated to that of Tower Hamlets that it was performing public and not private functions.”

248 [2002] JR

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.

  1. The court regarded the following factors as being of particular importance (at para. 65): “(i) While HRA section 6 requires a generous interpretation of who is a public author- ity, it is clearly inspired by the approach developed by the courts in identifying the bodies and activities subject to judicial review. The emphasis on public func- tions reflects the approach adopted in judicial review by the courts and text books since the decision of the Court of Appeal (the judgment of Lloyd LJ) in R v Panel of Takeovers and Mergers, ex p. Datafin [1987] QB 815. (ii) Tower Hamlets, in transferring its housing stock to Poplar, does not transfer its primary public duties to Poplar. Poplar is no more than the means by which it seeks to perform those duties. (iii) The act of providing accommodation to rent is not without more a public function for the purposes of HRA section 6. Furthermore, that is true irrespective of the section of society for whom the accommodation is provided. (iv) The fact that a body is a charity or is conducted not for profit means that it is likely to be motivated in performing its activities by what it perceives to be the public interest. However, this does not point to the body being a public authority. In addition, even if such a body performs functions, that would be considered to be of a public nature if performed by a public body, nevertheless such acts may remain of a private nature for the purposes of sections 6(3)(b) and 6(5). (v) What can make an act, which would otherwise be private, public, is a feature or a combi- nation of features which impose a public character or stamp on the act. Statutory author- ity for what is done can at least help to mark the act as being public; so can the extent of control over the function exercised by another body which is a public authority. The more closely the acts that could be of a private nature are enmeshed in the activities of a public body, the more likely they are to be public. However, the fact that the acts are super- vised by a public regulatory body does not necessarily indicate that they are of a public nature. This is analogous to the position in judicial review, where a regu- latory body may be deemed public but the activities of the body which is regu- lated may be categorised private. (vi) The closeness of the relationship which exists between Tower Hamlets and Poplar. Poplar was created by Tower Hamlets to take a transfer of local authority housing stock; Poplar is subject to the guidance of Tower Hamlets as to the manner in which it acted towards the defendant. (vii) The defendant at the time of transfer was a sitting tenant of Poplar and it was intended that she would be treated no better and no worse than if she remained a tenant of Tower Hamlets. While she remained a tenant, Poplar therefore stood in relation to her in very much the position previously occupied by Tower Hamlets.” (emphasis added)
  2. In R v Leonard Cheshire Foundation and another ex p. Heather several long-stay patients in a home, Le Court, run by the Leonard Cheshire Foundation (LCF), applied for judicial review of the latter’s decision to close the home in its existing form and relocate them in another of its homes. One of the arguments deployed by the claimants was that, in so deciding, the trustees of the LCF had breached the claimants’ right to respect for their home under Art. 8 of the Convention.
  3. A preliminary issue was ordered as to whether the LCF (the UK’s leading voluntary sector provider of care and support services for the disabled) was a public authority within s. 6. At first instance Stanley Burnton J answered in the negative and dismissed the application. 3
  4. After the first instance judgment, but before the decision of the Court of Appeal, the courts were asked to determine the legality of the decision of managers of a private

[2002] JR Law 249

3. [2001] EWHC Admin 429 [2001] ACD 75; see Johnston [2001] JR 250.

Comment

  1. Although the test for a functional public authority is to be construed generously, it may come as a surprise that a case like Cheshire , involving a function which would so clearly have been performed by the state in the absence of private provision, fell on the private side of the line. This decision has clear implications for commercial entities providing services formerly provided by the state: such bodies will not readily fall within the definition of public authority, and thus be subject to duties under the HRA.
  2. Such a position will not be welcomed in all circles. For instance, Moses J had expressed regret, in a pre-HRA case,^9 that authority prevented him from holding a charitable housing association to be a public authority. Murray Hunt has argued in relation to the test for amenability to judicial review that:^10 “The test for whether a body is ‘public’, and therefore whether administrative law prin- ciples presumptively apply to its decision-making, should not depend on the fictional attribution of derivative status to the body’s powers. The relevant factors should include the nature of the interests affected by the body’s decisions, the seriousness of the impact of those decisions on those interests, whether the affected interests have any real choice but to submit to the body’s jurisdiction, and the nature of the context in which the body operates. Parliament’s non-involvement or would-be involvement, or whether the body is woven into a network of regulation with state underpinning, ought not to be relevant to answering these questions. The very existence of institutional power capable of affecting rights and interests should itself be sufficient reason for sub- jecting exercises of that power to the supervisory jurisdiction of the High Court, regard- less of its actual or would-be source.”
  3. However, there are contrary views. Professor Oliver states:^11

“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

  1. Stanley Burnton J in Cheshire , having approved Professor Oliver’s view, did not share the regret of Moses J, stating (at para. H52): “The privatisation of formerly governmental activities has been authorised by Parliament. Privatisation means, in general, that functions formerly exercised by pub- lic authorities are now carried out by non-public entities, often for profit. It has inevitable consequences for the applicability of judicial review, which the courts are not free to avoid.”

[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.

  1. The Lord Chief Justice has suggested a novel solution:^13 residents could require local authorities to enter into contracts with service providers to agree to comply with res- idents’ Convention rights. Assuming that a resident could enforce such contracts despite not being a party, 14 it remains to be seen whether such contracts would be attractive to powerful service providers such as the LCF, which might be in a sufficiently dominant position to refuse; or agree on condition that the contract price rises significantly. In those circumstances local authorities may be less than insistent on the inclusion of such terms.

Conclusion

  1. The extent to which private companies performing functions formerly provided by the state are subject to duties under the HRA is difficult to define. One thing, however, is clear: the results will be controversial!^15

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.