Structure of the Human Rights Act

The Human Rights Act 1998 (HRA) is an outstanding piece of legislation in the last decade and therefore needs no further introduction. It always became a part of controversy and therefore it may be helpful to set the recent academic and judicial debate about public authorities in context. According to Section 6(1) “it is unlawful for a public authority to act in a way which is incompatible with a Convention right”, [1] so the notion of a public authority is decisive to the capacity and usefulness of the Act. Public authority has never been properly defined, but the HRA effectively recognised that there are two kinds of public authority. The one is the core public authorities, such as local authority or police, must not act in a way which is incompatible with a Convention right, unless one of the Section 6(2) exemptions applies. The second is the hybrid public authorities, which carries out some functions of a public nature under Section 6(3)(b), but if they are private then under Section 6(5) exempted for particular acts. Similarly Section 6(5) determined the meanings given to functions of a public nature and to a lesser extent. Moreover private acts are key`s to ascertaining the scope of the HRA. These questions came before the courts in several important cases, such as Heather v Leonard Cheshire Foundation, [2] Aston Cantlow v Wallbank, [3] Poplar Housing v Donoghue [4] and again in YL v Birmingham. [5] The House of Lords held that a care home, managed by Southern Cross, providing care and accommodation to the elderly been organized by the local authority under the National Assistance Act 1948, was not executing functions of a public nature.

Structure of the Act

The Human Rights Act obliged all courts and tribunals in the United Kingdom to interpret legislation which is compatible with the rights as described in the European Convention on Human Rights. But there are certain limitations to judicial creativeness and now it is clear that the courts may not interpret Acts of Parliament, which can negatively affect to its true meaning. Where it is not possible, than the courts may issue a declaration of incompatibility by stating how legislation may appear to breach of human rights. Moreover the Human Rights Act applies to all public administrations within the United Kingdom, which includes central government, local authorities, and bodies exercising public functions. It also comprises the Courts. However, it does not comprise Parliament when it is acting in its legislative capacity. [6]

However it is true that the Act just stated about public authorities, but the Human Rights Act has had positive impact on private law litigation, which may have horizontal as well as vertical effect. This is because section 6(1) of the Human Rights Act determine that the courts must follow the human rights obligations except where the declaration of incompatibility issues. Therefore judges are under an obligation to act in compatibility with the convention even when an action is a private one between two individuals.

Although the Act’s itself given authority to interpret legislation which is compatible with Convention rights, therefore section 3(1) applies only to statute and not common law. So section 6 of the Act may not entertain incompatible legislation. Thus the common law may issue a declaration of compatibility with the Convention in an incremental fashion. However, the Act may not issue a declaration to create new course of action in private law. [7]

Public authorities in the context of interpretation in the Courts

According to section 6 of Human Rights Act 1998, there are two types of public authorities. One is the pure public authorities and second is the functional public authorities.

Pure public authorities

The HRA is creating a relationship between the state and the individual. It protects the individual rights, if so violate by the state. It also determined certain positive individual rights. In the context of public services, the HRA is performing an outstanding role for the protection of the rights of service users. However British courts considered a narrow range of service providers in the context of public authorities, and these are only those with public authority context who are bound by the HRA.

In common parlance, it means that pure public authorities, such as governmental departments, local authorities, the police, NHS Trusts etc are covered by the HRA and they can take legal action, if their human rights be violated by their service provider. In addition to, a quality of contemporary Britain is the increasing marketisation of public services, with specific and numerous services, from social care services to welfare and employment services, from housing to after school clubs, maybe contracted out to private and third sector providers. It means the destiny of the increasing numbers of service users are left onto lottery as to whether they are covered by the HRA or not. [8]

The pure public authorities have been deeply discussed in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank. “The House of Lords held that a parochial church council was not a pure public authority. Moreover the House of Lords judgement stressed that, in accordance with the European Convention on Human Rights, the purpose of placing responsibility on public authorities under section 6 was to protect Convention rights to everyone within the jurisdiction and to provide a proper remedy where they were breached.” [9]

Functional public authorities

The second kind of public authorities is the functional/hybrid public authorities. It is partially public and partially private authorities. Such kind of authorities is oblige by human rights principles only when they exercise the functions of public nature, but these authorities are not bound when they exercise their private functions. According to section 4(1)(c) it is very clear that these functions must include functions of public nature, when they exercise functions on behalf of public authority or the state. For instance when a private security company providing security at a prison, which is totally different in character when offering security to commercial entity or super market.

The functional public authority is less decisive in character than for pure public authorities. It contains limited list of factors, which are relevant to ascertaining whether a function is of public nature or not. It must be noted that these factors may be listed under both types of public authorities and are not exhaustive. The presence of one or more factors does not mean that such function is of public nature. [10]

In addition to, the functional public authorities have to comply with convention rights and is defined under section 6(3)(b) where they are exercising public functions and has proved more controversial and difficult. However the functional public authorities was properly defined in the Aston Cantlow case, “the House of Lord rejected the argument that a Parochial Church Council enforcing a statutory obligation to repair the Chancel of a parish church was performing a public function under section 6(3)(b). It held that, in enforcing its statutory powers in this case, the PCC was essentially acting as a private party enforcing a civil liability.” [11]

Public authorities in the context of parliament

The aim of public function under section 6(3)(b) was to make the Act more broader rather than restrictive in its sense. According to its principle the delegation did not clear the State of responsibility. Moreover the then Lord Chancellor noted that the drafting of such provisions was designed to provide a protection to individual against the state, so they may not misuse their authority. [12] There was an important decision, which maybe rejected a more perspective approaches and enlisted those bodies who are responsible under the Act. Such kind of approaches may limit the access to remedy of the citizens in a way which might be incompatible under Article 13.

In addition to, the Home Secretary and the Lord Chancellor stated in parliamentary debates that privatised or contracted-out public services were intended within the provision of public function. They also made it clear that the Government had intention to make the Act to be adaptable to the changing structure of public realm and to change in the separation of power is so affecting individual rights.

Therefore it left onto courts to interpret the legislation to find out the proper lines between private and public functions. It is very clear that section 6(3)(b) should be based on the nature of function being performed by private body, having essential nature of the body itself. [13]

“Mirroring” The Convention: “Standard” & “Functional” Authorities

The idea of governmental organisation is given effect through the realm of public authority under section 6 of the HRA, which created distinction between pure and functional public authorities. The former is so recognised by its institutional characteristics and the latter is identified by tests for public function. Similarly core public authorities, identified in this institutional way and are bound in convention rights as well as rights-restriction rule are institutionally incapable to perform their own Convention rights. Moreover functional authorities are bound by Convention rights when they exercise the function of public nature, but they are not bound to perform in respect of their private acts. These are so recognised in Aston cantlow [14] and in Grampian university hospital NHS Trust. The latter was wholly under the supervision of the state and being an entity independent from the state and was able to meet the institutional criteria of being pure authorities.

In addition to, under the Strasbourg law a governmental body may not perform Convention rights when it is acting non-governmentally. But this fact is not true, because it is not mention in Strasbourg cases that non-governmental body can perform public function. For example a commercial company or charity may cease to have convention rights under Article 34 because the violation affects it in the way it is exercising those functions. [15]

Justification & the Conception of the State

The Purpose of Convention is to provide a redress against the institutions and has to secure of Convention rights and freedom, which is the responsibility of the state. The then Lord Rodger in Aston Cantlow agreeing with the Court of Appeal and said “arts 1 and 34 assume the existence of a state which stands distinct from persons, groups and non-governmental organisations.” [16]

However the privatisation of government is fully recognised in subsections 6(3)(b) and 6(5) of the Act. The main principles of the modern state is not clearly recognised in the context of the Act, which provides a different roles of non-departmental public bodies including director generals, commissioners etc which are mostly found in the public life of the United Kingdom. Similarly Non-departmental public bodies meet some but not all the institutional criteria of pure public authorities.

In addition to, the denial of Convention rights to core authorities is supported by the Strasbourg case law under Article 34 and this concept is trace by governmental bodies. However the Court of Human Rights under Article 34 is not compelled to this position and therefore is an unarticulated theory of the nature and role of the state. The Holy Monasteries [17] denying standing under Article 34 widely discribed the function of public authorities, which provide that the Strasbourg concept of governmental organisation provides the character of public functions even though if they also have private power. Likewise a governmental organisation is not only consisted the central organs of the state but it also consisted decentralised authorities that exercise public functions.

The protection of rights in the private sphere

The Human Rights Act 1998 imposes obligations to protect Convention rights in context of public authorities. The Act itself permits the Convention rights to have some positive influence in the development of law related to private bodies. Therefore section 6 of Human Rights Act defined public authorities in such context that they are under obligation to protect and to respect the Convention rights and the law applies in all cases, where it may conform to these rights. Secondly the courts are under an obligation to interpret legislation compatibly with the convention rights. [18]

In addition to, the pedigree of horizontal application of Human Rights Act between private parties is generally accepted and which would apply the principle to respect with Convention rights to both public and private person on the basis of equality. However, the cases of private sector service providers falling contractedly outside the definition of public authority. The Human rights obligations has give authority to courts in a sense to comply with convention rights and their duty is to interpret legislation in accordance with the Convention rights The Private sector service providers are subject to the criminal law as well as action arises in tort or contract. Additionally, the sectors such as healthcare and housing are subjected by legislation and courts are obliged to interpret them in conformity with the Convention rights under section 3 so far as it is possible to do so.

Likewise section 6 of the Human Rights Act 1998 is the only legal mechanism which provides and guaranteed full responsibility for the safeguard of Convention rights and it also provides direct accountability for violations of Convention rights. [19]

The role of the private sector in delivering public services

The broad definition of public authority raised the number of private sector inclusion in the human rights protection which is present to the beneficiaries of public services. Although we have not did any precise research to determine the level of the private sector involvement in the utterance of public services. In concerning to the housing sector the deputy prime minister stated that 200 tenant management organisations presently handle 84,000 local authority homes in England and Wales. Similarly nearly 1.7 million properties are owned and handled by registered social landlords. Likewise in relation to social care, the Department of health stated that the independent sector provided 92% of care homes and 64% of contact hours of home care. The department also summarized the supreme role of the private sector in children services. According to an estimate 15% of foster placement is organized by private agencies and 20% of adoption placements are organized by Voluntary Adoption Agencies. Similarly in case of NHS, great private sector involvement in the provision of healthcare seems to be the same as others. Moreover other private sector organisations are also providing public services. Which include National Air Traffic Services and Network Rail. [20]

In addition to, the arrangement for the involvement of voluntary and private sector is very wide and it takes place under specific statutory regimes. For instance the involvement of Housing Associations in the commission of social housing is to be dates back in the 19th century. Rather than the role of voluntary and private sector provisions in public housing is become most significant since 1980s. [21]

Human Rights in context of Private Bodies

The section 6 of the Human Rights Act 1998 defined the Public authorities in broad realm but it did not define horizontal effect of convention rights. It provides that the public authorities are under an obligation to act in-compatibly with those rights, and defines such authorities can include private spheres, so they may perform functions of a public nature unless the nature of the act is so private. In the case of YL v Birmingham City Council [22] the House of Lords determined that a private care home was failed to perform a function of a public nature in-relation to a resident who was being paid for by her local authority; hence a claim by the resident that the owners of the home were in violation of Article 8 of the European Convention of Human Rights when it tried to remove her from the home failed.

The positive realm which may result from giving horizontal effect to convention rights and private bodies are under strict duty to protect the individuals and to respect human rights principles and obligations in international arena. It is so important to keep in mind that the starting point in most constitutional human rights provisions in the past has been that they have only negative effect, which means that such kind of effect is as against state institutions. For example, the United States Constitution was the first to included human rights protections, only does so in relation to state action. The Canadian Constitution provides that human rights obligations only bind governments and legislatures. The applicability of specific human rights protections has not depended on the nature of the function that was being performed, but on the identity of the respondent in a case.

Moreover it is only relatively recently that some countries obliged private spheres to respect human rights obligations and principles i.e to give them direct or indirect horizontal effects to human rights provisions. So they may raise the number of theoretical and practical issues.

Similarly those who opposed to the reality that private care homes were not deemed as exercise the functions of a public nature were in fact saying that such private authorities need to honour the convention rights of those they deal with, particularly where they are in-securable, as those in care homes are. The most convention rights are safeguarded by the ordinary law of contract and tort. A reason why there has been an insufficient case about low cost housing and care homes. In addition to, common law does not generally provide rights to respect for a person’s private life and it is not specifically respect for privacy or for the home when it is not owned or rented by the claimant. Likewise neither common law courts determined that a right to respect for one’s home needs security of tenure. For example, in Qazi v Harrow LBC [23] the House of Lords determined that it was not un-predictable with the meaning of the right to regard for a home under Article 8 of ECHR for a local authority to recover the possession of property from tenant after the expiration of the tenancy by a valid notice to leave.

However, some legislative exceptions to the general rule are provided for by the housing legislation. This protects occupiers and their dependants under assured tenancies. But this statute did not limit the scope to residents of care homes.

Recommendations

A gap in human right protection

The courts are under an obligation to determine whether the nature of function is

public within the meaning of section 6(3)(b) of Human Rights Act 1998, which is highly problematic in the context of human rights. The protection of human rights is dependants on the relatively arbitrary administrative connections with the institutions of the state. There is no gap for such limitations in the European Convention on Human Rights. Moreover the principles set out by Lord Hope in Aston Cantlow which provided real principles and obligations for the protection of Convention rights. But House of Lords in the Poplar and in Leonard Cheshire did not clearly set aside the decisions. It founds that the principles set out in the Aston`s case are at odds with those decisions made previously by sub-ordinate courts. But approach which is to be made in Aston`s case is to be preferred. [24]

Why does the meaning of public authority matter?

The providers of public services whether they are from the private sectors or state

should not left blank because their responsibility is to protect fundamental human rights. Moreover the nature of public authority responsibilities under the Human Rights Act 1998 is greatly important to both the service providers and employees. Similarly in many case laws it is very fundamental, whether human rights violates by voluntary and private sector providers and is able to give rise to accountability under the Human Rights Act and is likely to depend on a number of different criteria. In addition to, the gap and inconsistencies in human rights protection give rise to the situation that UK falls of its international obligations to protect the effectiveness of Convention rights and to provide redress for their violation. [25]

Is the category of functional public authority necessary?

The accountability of contractors with the Convention rights is not proper substitute for

direct accountability of Service Providers, which is mention in section 6 of Human Rights Act. For instance if human rights culture is to be advanced in our public services or maybe in our public administration then it will totally mess our system and by removing those services means the promotion of human rights standards. Moreover if in case of legal mechanism then the horizontal application of Convention rights become helpful to victims of a violation of Convention rights by service providers. [26]

Principles of interpretation

It is very complicated to determine the two main key terms, the public and the function, which precede difficulties in the application of section 6, which includes institutional vicinity and statutory basis to the state and it is neither guaranteed by ECHR nor guaranteed by the language of the Act. Similarly under section 6 of the Human Rights Act there should be no difference between a body providing housing because it contracted with local authority which is required by statute to provide the service, and between a body providing housing because it itself is required to do so by the statute. [27]

Conclusion

The functional public authority provision which is used in section 6(3)(b) of the Human Rights Act leaves insufficiencies and real gaps in theory and practices. These inadequacies in protection of Human Rights Act may well leave the UK in violation of its international principles and obligations, so as to safeguard the Convention rights of all those in the jurisdiction and to provide proper mechanisms for remedies where those rights been violated. Moreover the courts are under an obligation to interpret the meaning of the public authority under close review and they may have to pay a particular attention to the need to interfere in further cases. We can also compel the government to interfere in the public affairs as a third party in cases where it can bring the case in the broad functional realm of the interpretation of the meaning of public authority under the Human Rights Act. As a matter of extensive realm, where it provides a function that has possess in governmental responsibilities, in this way it is very difficult to compel individuals to trust on that body for realisation of their Convention human rights.