IRISH HUMAN RIGHTS COMMISSION
AND LAW SOCIETY OF IRELAND
ECHR ACT REVIEW
16 October 2004
Local authorities and the Human Rights Act 1998
Charlotte Kilroy, Matrix Chambers
Introduction
In this talk, I will give a brief overview of how the Human Rights Act 1998 (HRA)
affects the activities of local authorities in the UK, and will examine in particular the
approach taken by the English courts1 to the question of who falls within the
definition of public authority in the HRA. The latter question remains a matter of
lively debate and has assumed particular significance in the light of government
policies of privatisation and contracting-out of public services.
The Human Rights Act 1998
Section 6 of the HRA provides:
(1) 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) a court or tribunal, and
(b) any person certain of whose functions are functions of a public nature,
…..
(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 this talk I will concentrate on the position in England and Wales
1
A: The impact of the HRA on local authorities
Since the HRA came into force on 2 October 2000, its impact on local authorities has
been widely felt. Local authorities have faced challenges under the HRA in relation to
almost every aspect of their activities, including the provision of healthcare, housing,
education, community care and social assistance, possession proceedings, licensing
and planning controls2.
A few prominent examples may serve to give some indication of the range of issues
raised by the introduction of the HRA.
Impact on the common law duties of local authorities
In the case of JD and others v East Berkshire Community Health Trust [2004] Q.B.
558 the Court of Appeal considered whether the local authority owed a common law
duty of care to a child in relation to a decision whether or not to take the child into
care. The Court of Appeal observed that facts which had given rise to the cases before
it predated October 2000 when the HRA came into force, and no claim could
therefore be brought under the HRA. The Court stated, however, that it was
nonetheless necessary to consider whether the introduction of the Act had affected the
common law principles of the law of negligence3.
The starting point was the pre-HRA House of Lords decision of X v Bedfordshire
County Council [1995] 2 AC 633 where the court had stated that a common law duty
of care could not be imposed on a statutory duty if the observance of the common law
duty of care would be inconsistent with, or have a tendency to discourage, the due
performance by the local authority of its statutory duties. The court had concluded
that it would not be just and reasonable to impose a duty of care on the local authority
in relation to its duties to provide protection for children in need of care because:
2
3
See Local Authorities & Human Rights, Drabble, Maurici and Buley, (2004) Oxford
Ibid, paragraph 55
2
(1) It would be almost impossible to disentangle the respective liability for
negligence of all the bodies involved in protecting children at risk (police,
education bodies, doctors and others);
(2) The task of the local authority and its servants in dealing with children at risk
is extraordinarily delicate;
(3) If there were potential liability for damages, it might well mean that local
authorities would adopt a more cautious and defensive approach to their
duties;
(4) The relationship between the social worker and the child’s parents is often one
of conflict and a duty of care would be likely to breed ill-feeling and often
hopeless litigation which would divert money and resources away from the
performance of the social service for which they were provided;
(5) There were other remedies for maladministration of the statutory system for
the protection of children in statutory complaints procedures and the power of
the local authorities ombudsman to investigate cases;
(6) The development of novel categories of negligence should proceed
incrementally and by analogy with decided cases. As there were no such close
analogies, the court should proceed with great care before holding liable in
negligence those who have been charged by Parliament with the task of
protecting society from the wrong doings of others4.
Having considered a number of cases which post-dated Bedfordshire, including the
House of Lords decisions of Phelps v Hillingdon London Borough Council [2001] 2
AC 619 and Barrett v Enfield London Borough Council [2001] 2 AC 550, the Court
of Appeal in East Berkshire concluded that the effect of Bedfordshire had now been
restricted to one core proposition: that decisions by local authorities whether or not to
take a child into care were not reviewable by way of a claim in negligence5.
The question was: was there still a justification for preserving the rule that no duty of
care was owed in negligence because it was not fair, just and reasonable to impose
such a duty, when children whose causes of action arose from facts which post-dated
4
5
See JD and others v East Berkshire Community Health Trust [2004] Q.B. 558 at paragraph 31
Ibid at paragraph 49
3
October 2000 could now bring claims under the HRA?6 The court examined what the
position was in relation to claims made by children under Articles 3 and 8 of the
European Convention on Human Rights (ECHR), by reference to a number of cases
heard by the European Court of Human Rights7 (ECtHR), and in particular the case of
Z v UK (2002) 34 E.H.R.R. 3, in which the ECtHR concluded that rights of the
claimants in the Bedfordshire case under Articles 3 and 13 (right to an effective
remedy) had been violated. The court concluded that in the context of suspected child
abuse, breach of a duty of care will frequently amount to a violation of Articles 3 or 8
ECHR.8 Based on the Strasbourg jurisprudence in cases such as Z v UK and E v UK,
it was clear that in such claims under Articles 3 or 8 ECHR the court is likely to have
to examine whether the local authority knew or should have known that positive
action was called for, which will necessarily involve consideration of the conduct of
the individuals involved, and in claims under Article 8 the court will also be required
to examine the conduct of the individuals involved to see whether on the particular
facts the action was ‘necessary in a democratic society’. The court concluded
therefore that since litigation involving factual enquiries of the nature considered
above is now a potential consequence of the conduct of those involved in taking
decision in child abuse cases since the coming into force of the HRA, the reasons of
policy that led the House of Lords to hold in Bedfordshire that no duty of care
towards a child arises would largely cease to apply. The court stated: “In so far as the
risk of legal proceedings will inhibit individuals from boldly taking what they believe
to be the right course of action in the delicate situation of a case where child abuse is
suspected, we think this factor will henceforth be present, whether the anticipated
litigation is founded on the Human Rights Act or on the common law duty of care.”9
Consequently the court found that the decision in Bedfordshire could not survive the
HRA and that “it will no longer be legitimate to rule that, as a matter of law, no
common law duty of care is owed to a child in relation to the investigation of
suspected child abuse and the initiation and pursuit of care proceedings.”10
6
Ibid at paragraph 82
See paragraphs 55-78
8
Paragraph 82
9
Ibid, paragraph 83
10
Ibid, paragraph 84
7
4
Decision-making by local authorities- planning
The first three years following the coming into force of the HRA saw a flurry of cases
challenging various aspects of the planning system on the basis that they violated
Article 6(1) ECHR, which provides that in the determination of their civil rights and
obligations, everyone is entitled to a fair and public hearing within a reasonable time
by an independent and impartial tribunal.
The first major target of the litigation was the Secretary of State’s role in the planning
system, and in particular his power under the system to “call in” planning applications
which would have been decided by local authorities and to determine them himself,
and his power to recover certain types of appeals which would otherwise have been
decided by a planning inspector11. It was argued that since the Secretary of State was
responsible for devising and promoting the policy according to which the decisions
were to be taken, and necessarily had political capital invested in those policies (in
one case the Ministry of Defence had a financial interest in the outcome of the
planning application), he was not an independent and impartial tribunal for the
purposes of Article 6(1) ECHR. The Divisional Court found that the planning
legislation was in violation of Article 6(1) and issued declarations of incompatibility
under section 4 HRA. This decision appeared to sound the death knell for the
Secretary of State’s role in the planning system, but following a leapfrogged appeal
the House of Lords upheld the Secretary of State’s role in both instances.
The reasoning used by the House of Lords in reaching this conclusion, however,
spawned a number of challenges to the decision-making of local authorities. In the
House of Lords Lord Hoffmann had analysed the case-law of the ECtHR, and in
particular the case of Bryan v UK12. In Bryan the ECtHR had decided that although
the planning inspector who heard appeals from decisions on local authorities was not
himself an independent or impartial tribunal, the procedure overall satisfied the
requirements of Article 6, due to:
11
12
R (Alconbury Limited) v Secretary of State for the Environment [2003] 2 AC 295
(1995) 21 EHRR 342
5
"the uncontested safeguards attending the procedure before the inspector: the
quasi-judicial character of the decision-making process; the duty incumbent on
each inspector to exercise independent judgment; the requirement that
inspectors must not be subject to any improper influence; the stated mission of
the Inspectorate to uphold the principles of openness, fairness and
impartiality." (paragraph 46)
and because the decision of the inspector could be appealed to the High Court which,
while it was not able to substitute its own findings of fact "had the power to satisfy
itself that the inspector's findings of fact or the inferences based on them were neither
perverse nor irrational", At paragraph 47 the ECtHR stated:
"Such an approach by an appeal tribunal on questions of fact can reasonably
be expected in specialised areas of the law such as the one at issue,
particularly where the facts have already been established in the course of a
quasi-judicial procedure governed by many of the safeguards required by
article 6(1). It is also frequently a feature in the systems of judicial control of
administrative decisions found throughout the Council of Europe member
states." :
Lord Hoffmann reached the following conclusions on the basis of Bryan:
117. If….the question is one of policy or expediency, the "safeguards" are
irrelevant. No one expects the inspector to be independent or impartial in
applying the Secretary of State's policy and this was the reason why the court
said that he was not for all purposes an independent or impartial tribunal. In this
respect his position is no different from that of the Secretary of State himself.
The reason why judicial review is sufficient in both cases to satisfy article 6 has
nothing to do with the "safeguards" but depends upon the Zumtobel principle of
respect for the decision of an administrative authority on questions of
expediency. It is only when one comes to findings of fact, or the evaluation
of facts, such as arise on the question of whether there has been a breach of
planning control, that the safeguards are essential for the acceptance of a
limited review of fact by the appellate tribunal. (emphasis added)
A number of challenges were brought were brought against local authorities on the
basis of this paragraph13 alleging inter alia that failure to allow oral representations by
13
See Lord Hoffmann in the case of Begum (Runa) v Tower Hamlets LBC [2003] 2 A.C. 430 where he
describes this as an incautious remark (paragraph 40) and draws a distinction between findings of fact
which have to be made by central or local government officials in the course of carrying out regulatory
functions (such as licensing or granting planning permission) or administering schemes of social
welfare, and findings of fact in the context of breaches of the criminal law or in adjudications as to
private rights. In the case of the latter, the principle that these decisions should be entrusted to the
judicial branch of government was not affected by utilitarian arguments that it would be cheaper or
more efficient to have these matters decided by administrators (paragraph 42). As for the former,
Parliament is entitled to take the view that it is not in the public interest that an excessive proportion of
the funds available for a welfare scheme should be consumed in administration and legal disputes
(paragraph 44).
6
objectors14, and the failure to hold a public inquiry before reaching a decision15 was a
violation of Article 6 ECHR because local authorities were called upon to make
findings of fact in reaching their decisions and did not have the safeguards which
Lord Hoffman had described as essential. In the case of Adlard the Court of Appeal
rejected the appellant’s arguments, stating that judged as a whole the statutory scheme
which underpins the planning process lay towards that end of the spectrum where
judgment and discretion, rather than fact-finding played the predominant part and that
in these circumstances the court would be inclined to be satisfied with a form of
inquisition at first instance at which the decision-maker was more of an expert than a
judge, combined with a second instance appeal in the nature of a judicial review. The
court concluded therefore that there was no requirement in relation to planning
decisions that a statutory scheme should provide a right to an oral hearing at the initial
stage of the proceedings, although it did not rule out that, exceptionally, on the facts
of an individual case, a failure to allow an oral hearing might constitute a violation of
Article 6 ECHR.16
Leaving aside the systemic challenges to planning procedures, decisions taken by
planning authorities frequently have an impact on people’s family, private lives and
homes. Consequently there have been a number of challenges to planning decisions
on the basis that they violate the right to respect for family and private life and home
in Article 8 ECHR17. One recent decision deserves mention as the latest in a long line
of cases which address decisions taken by local authorities against unlawfully
established gypsy sites18. In First Secretary of State and Doe and others v Chichester
District Council [2004] EWCA Civ 1248 the Court of Appeal held that the decision of
the local planning authority to bring enforcement proceedings and refuse planning
14
R. (on the application of Adlard) v Secretary of State for Transport, Local Government and the
Regions [2002] 1 W.L.R. 2515
15
R. (on the application of Vetterlein) v Hampshire CC [2002] Env. L.R. 8; R. (on the application of
Friends Provident Life Office) v Secretary of State for the Environment, Transport and the Regions
[2002] 1 W.L.R. 1450; BT Plc v Gloucester City Council [2002] 2 P. & C.R. 33
16
Adlard per Simon Brown LJ at paragraph 32
17
See e.g. R v Leicester City Council ex parte Blackfordby & Boothcorpe Action Group Ltd [2000] JPL
1266- (challenge to the grant of planning permission for a waste disposal site and for the extraction of
coal and clay close to residents’ homes); R (Vetterlein) v Hampshire County Council [2002] Env L.R.
8; Dennis v Ministry of Defence [2003] Env LR 34 (successful reliance on Article 8 for a claim relating
to aircraft noise) and Marcic v Thames Water Utilities Ltd [2004] 2 A.C. 42. See also Chapman v UK
(2001) 33 E.H.R.R. 18, Buckley v UK (1996) 23 EHRR 101, Lopez Ostra v Spain (1994) 20 EHRR
277, Guerra v Italy (1998) 26 EHRR 357 and S v France (1990) 65 DR 250.
7
permission for a gypsy site was a violation of the applicants’ rights under Article 8
ECHR. Although the applicants in that case had developed the land without planning
permission, the court decided that the local authority’s decision to evict them was a
disproportionate interference with Article 8(1) ECHR due to the limited harm to the
environment caused by the presence of the caravan site and the fact that the local
authority had failed to pursue the national planning policy objective of seeking to
meet the accommodation needs of gypsies.
Adapting policy- Community care
In the case of R (A, B, X, Y) and East Sussex County Council [2003] EWHC 167,
Munby J considered the lawfulness of East Sussex County Council's (ESCC) policy
of not permitting care staff to manually lift the applicants, A and B, who were both
severely disabled. This policy had been developed in order to protect the care staff
from injury, and was rooted in health and safety at work regulations. Munby J
embarked upon an extensive review of the case-law of the ECtHR on Article 8
ECHR, concluding that ESCC had positive obligations under Article 8 ECHR to
respect A and B’s right to private life. That right was to be understood as including
both the right to human dignity, a right which was particularly enhanced when the
applicants were so disabled as to be critically dependent on the help of others for even
the most basic and simple tasks of day-to-day living, and the right of the disabled to
participate in the life of the community and have access to essential economic and
social activities and to an appropriate range of cultural and recreational activities.
Munby J found that due to ESCC’s positive obligation to ensure that the Article 8
rights of disabled people for whom it is responsible are respected, a policy which
imposed a blanket prohibition on manual lifting was likely to be unlawful. Munby J
also set out a number of circumstances in which it was likely to be unlawful for carers
to refuse to carry out manual lifts even where those lifts are hazardous to the carer’s
physical safety.19 In issuing protocols on manual lifting under the health and safety
regulations, Munby J stressed that Article 8 ECHR must be taken into account, and
18
See also Chapman v UK, ibid, Porter v South Buckinghamshire District Council and others [2003] 2
AC 558 and Clarke v Secretary of State [2002] JPL 1365
19
A, B, X, Y, at paragraphs 153-155.
8
that a balancing exercise between the rights of the carer and the rights of the disabled
person must therefore be carried out by the employer.20 Munby J stated that ESCC
should indicate the outcome of this exercise in detailed guidance in the protocols
governing the kinds of situations which might arise21.
20
21
Ibid at paragraph 129
Ibid at paragraph 131-5
9
B: The definition of a public authority
All of the examples given above concern what are known as ‘pure’ public authorities,
bodies whose public nature is unquestioned22. Section 6 HRA makes clear that these
authorities (government departments, local authorities and the police) are required to
comply with Convention rights in all their activities, whether in their contractual
relations with staff or private contractors, or in the provision of public services.
The HRA, however, does not limit the obligation to comply with the Convention
rights to “pure” public authorities. Section 6(3)(b) HRA, provides that a public
authority includes ‘any person certain of whose functions are functions of a public
nature.’ Section 6(5) provides that those bodies who are public authorities for the
purposes of section 6 of the HRA because certain of their functions are functions of a
public nature, will not be public authorities if the nature of the act complained of is
private.
Section 6(3)(b) and section 6(5) of the HRA therefore create a category of public
authority which is obliged to comply with the Convention in relation to those
functions which it carries out which are of a public nature, but not in relation to acts
whose nature is private.
During the debates in Parliament which led to the introduction of the HRA, the
rationale for creating this category of ‘functional’ public authority was explained as
follows23:
The Government have a direct responsibility for core bodies, such as central
Government and the police, but they also have a responsibility for other public
authorities, in so far as the actions of such authorities impinge on private
individuals. The Bill had to have a definition … that went at least as wide and
took account of the fact that, over the past 20 years, an increasingly large
number of private bodies, such as companies and charities, have come to
exercise public functions that were previously exercised by public
authorities24.
22
Although, for a critique of whether it is always obvious whether a body is a pure public authority, see
Kate Markus , What is Public Power: the Courts’ Approach to the Public Authority definition under the
Human Rights Act, in Delivering Rights, Jowell and Cooper, eds (Hart, 2003) at pages 80-83
23
See Seventh Report of the Joint Committee on Human Rights, HL Paper 39, HC 382, “The meaning
of Public Authority under the Human Rights Act”
24
Home Secretary, HC Deb, 16 February 1998, col 773
10
Railtrack acts privately in its functions as a commercial property developer.
We were anxious that we should not catch the commercial activities of
Railtrack or, for example, of the water companies. which were nothing
whatever to do with its exercise of public functions. 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.25
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.26
For example, charities that operate … in the area of homelessness, no doubt do
exercise public functions. The NSPCC, for example, exercises statutory
functions which are of a public nature, although it is a charity.27
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.28
As the Home Secretary stated during the debates:
“The principle of bringing rights home suggested that liability in domestic
proceedings should lie with bodies in respect of whose actions the UK
Government were responsible in Strasbourg.”29
Despite these statements indicating that the public function test was to be interpreted
expansively so as to apply to those bodies for whose actions the UK government
would be responsible in Strasbourg, the courts have largely favoured a restrictive
approach to the application of section 6(3)(b) HRA. While the privatised public
utilities such as the water companies are accepted to be performing public functions in
their delivery of services30, the application of section 6(3)((b) to smaller private or
charitable organisations who are often providing services under contract from local
authorities, is far less clear31. Thus in the first case to consider the issue in detail,
Poplar Housing and Regeneration Community Association v Donoghue32, a case
25
Home Secretary, HC Deb, 17 June 1998, Cols 409-410
Lord Chancellor, HL Deb, 24 November 1997, Col 811
27
Lord Chancellor, HL Deb, 24 November 1997, Col 800
28
Home Secretary, HC Deb, 17 June 1998, Col 433
29
HC Deb, 17 June 1998, col 406
30
See Marcic v Thames Water [2002] EWCA Civ 65
31
See Seventh Report of the Joint Committee on Human Rights, at paragraph 27
32
[2002] Q.B. 48
26
11
which concerned a housing authority providing rented accommodation on behalf of a
local authority, the Court of Appeal stated that “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. An act can remain of a private
nature even though it is performed because another body is under a public duty to
ensure that that act is performed.”33 The court stated: “What can make an act, which
would otherwise be private, public is a feature or a combination of features which
impose a public character or stamp on the act.”34 The court identified a number of
features which imposed public character on the act including whether there was
statutory authority for the act, the extent of control by a public authority, and the
extent to which the acts that could be of a private nature are enmeshed in the activities
of a public body. In that case, the court concluded that the role of Poplar Housing
Association in providing accommodation for the defendant and then seeking
possession was so closely assimilated to that of the local housing authority that it was
performing public functions and was therefore a public authority.35
In R(Heather) v Leonard Cheshire Foundation36 residents of a care home challenged
the decision to close the home and relocate the residents elsewhere. The care home
was run by a charity, but the majority of the residents at the home, including the
claimants, had been placed there by the social services departments of their local
authority or by their health authority. In making the placements and providing the
funding which the placements required, the authorities were exercising statutory
functions. The claimants argued that the closure of the home violated their right to
respect for a home under Article 8. The key question before the Court of Appeal was
whether the home was a public authority under section 6(3)(b) HRA. The court held
that it was not for the following reasons:
(1) Except for the resources needed to fund the residents there was no material
distinction between the nature of the services provided by the care home to the
publicly funded residents and the privately funded residents;
33
Ibid at paragraph 59
Ibid at paragraph 65(v)
35
Ibid, paragraph 66
36
[2002] 2 All E.R. 936
34
12
(2) There was no other evidence of there being a public flavour to the functions of
the care home; although there was statutory authority for the actions of the
local authority the care home was not exercising any statutory power.
Both of these cases laid heavy emphasis not on the nature of the act itself, but on the
relationship of the body with a pure public authority and the existence of statutory
authority for carrying out the act. In other words the court in these cases was not in
fact applying a functional test in order to ascertain whether a body is a public
authority, but was instead relying on the institutional arrangements for carrying out
the act in question, a test which is very similar to the test of amenability for judicial
review37.
In R(A) v Partnerships in Care Ltd38 the court found that a private provider of mental
health care was a public authority under section 6(3)(b) HRA. The claimant in that
case had a severe personality disorder and was detained under mental health
legislation at a private psychiatric hospital which was registered as a mental nursing
home under statutory provisions. The hospital managers decided to change the focus
of her ward from the provision of care and treatment for patients suffering from
personality disorders to the provisions of care and treatment for patients suffering
from mental illness. The claimant alleged that this was a breach of Articles 3 and 8
ECHR as it resulted in her being denied the care and treatment appropriate for her
condition.
In reaching its decision that the hospital managers were a functional public authority
under section 6(3)(b) the court emphasised the element of compulsion involved in
detaining the claimant and the fact that the need for her to receive care and treatment
which might result in her living in the community again was a matter of public
concern and interest. Although the hospital managers were not enmeshed in the
activities of the health authority as in Poplar Housing, and despite the fact that the
statutory obligations of the health authority to provide care and treatment ended when
it arranged for the private hospital to do so, and did not pass to that private hospital,
37
See Civil Procedure Rules Part 54(2)(a)(ii) which states that a claim for judicial review means a
claim to review the lawfulness of a decision, action or failure to act in relation to the exercise of a
public function.
13
there was specific statutory underpinning for the question of whether facilities could
and should be provided and adequate staff should made available to enable the
treatment directed by psychiatrists for the claimant.
Section 6(3)(b) HRA was reviewed by the House of Lords in the case of Aston
Cantlow v Wallbank.39 The case concerned a parochial church council which called
upon a lay rector to repair the chancel of his parish church. The rector alleged an
infringement of his right to peaceful enjoyment of his possessions under Article 1,
Protocol 1 of the ECHR. The House of Lords rejected the argument that the church
council was a pure public authority, and also concluded that in taking steps to enforce
the rector’s chancel repair liability the church council was essentially acting as a
private party enforcing a civil liability and was not therefore performing a function of
a public nature.
In reaching this conclusion, however, the House of Lords focused clearly on the
wording of section 6 HRA40 with Lord Hope stating: “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. The question whether section 6(5) applies to a
particular act depends on the nature of the act which is in question in each case.”41
Lord Nicholls stated that “Giving a generously wide scope to the expression “public
function” in section 6(3)(b) will 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”42 but observed that there
could be no single test of universal application, given the diverse nature of
governmental functions and the variety of means by which these functions are
discharged today.43 He stated that factors to be taken into account included the extent
to which in carrying out the relevant function the body is publicly funded, or is
exercising statutory powers, or is taking the place of central government or local
authorities, or is providing a public service.
38
[2002] 1 W.L.R. 2610
[2004] 1 AC 546
40
Ibid per Lord Hope at paragraph 41
41
Ibid
42
Ibid at paragraph 11
39
14
In none of the judgments of their Lordships in Aston Cantlow are the cases of
Leonard Cheshire, Poplar Housing or Partnerships in Care mentioned, although the
former two were cited in argument; nor, however, were these judgments expressly
overruled. Consequently, despite the more generous approach indicated as appropriate
by the House of Lords, in the case of R v Hampshire Farmers Market ex parte Beer44
the Court of Appeal concluded that the judgments in Leonard Cheshire and Poplar
Housing, would continue to form a source of valuable guidance45 and suggested that
in most cases the issue of whether a body was amenable to judicial review and
whether it is a public authority under section 6(3)(b) would march hand in hand. 46 In
that case the Court of Appeal concluded that the farmers’ market was a public
authority firstly because the power of access to a public market had a public element
or flavour47, and secondly because the farmers market owed its existence to the local
authority and had stepped into the shores of the local authority in the sense that it
performed functions which had previously been performed by the local authority.48
The failure of the Court of Appeal in the cases described above to take the generous
approach to the interpretation of public authority which both Ministerial statements in
the passage of the Human Rights Bill and the House of Lords in Aston Cantlow have
indicated is correct, and to develop a functional test as to which bodies are public
authorities has led to a chorus of criticism among commentators.49
The Joint
Committee of Human Rights has stated that “A serious gap has opened in the
protection which the Human Rights Act was intended to offer, and a more vigorous
approach to re-establishing the proper ambit of the Act needs to be pursued.”
The Joint Committee on Human Rights has proposed the following principles for
assessing whether a body is a public authority for the purposes of section 6(3)(b)50:
43
Ibid at paragraph 12
[2004] 1 W.L.R. 233
45
Per Dyson LJ at paragraph 25
46
Per Dyson LJ at paragraph 29
47
At paragraph 30
48
At paragraphs 35-36
49
See e.g Kate Markus, in Delivering Rights (above) at pages 106-114 and the Seventh Report of the
Joint Committee on Human Rights (above), in particular at paragraphs 41-44 and paragraphs 45-74.
But see also Dawn Oliver, in Public Law, Summer 2004, at 329-354
50
Seventh Report at paragraphs 135-147
44
15
(1) the key test of whether a function is public is whether it is one for which the
government has taken responsibility in the public interest, so that for example
the discharge of duties necessary for provision of the government programme
of healthcare is a public function, while discharge of healthcare services in
itself is not;
(2) there is no need for a body to discharge the function under direct statutory
authority;
(3) Institutional links with a public body are not necessary to identifying public
function;
(4) Confining public function to the coercive powers of the State risks improperly
identifying a public function with the exercise of public powers.
The Joint Committee on Human Rights has called upon central government to
intervene in cases as a third party where it can press for a broad functional
interpretation of the meaning of public authority under the HRA. It remains to be
seen whether the government will take this course. In the meantime, the debate
continues.
One thing is certain, however: the narrower the interpretation given to public
authority under the HRA, the more likely it is that the UK will be found by the ECHR
to be in breach of its international obligations under the ECtHR.
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