Structure of Human Rights Act

The Human Rights Act 1998 (HRA) is an outstanding pieces 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.

This essay will consist in different sections. The first section reviews the historical background and structure of the Human Rights Act with regard to public authorities in context. The second section consists of Public authorities with regard to international human rights obligations. The third section reviews the public authorities under the human rights act in context of legislative debates. The fourth section comprise of public authority determine by the courts. The fifth section consists of Human rights and private spheres. The last section reviews the recommendations and the conclusion.

Historical Background and Structure of the Act

“The HRA 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and therefore it came into force on 2 October 2000.” [6]  The purpose of this act is to give further effect in UK law to the obligations incorporated in the European Convention on Human Rights. The Act became available in UK courts a remedy for violation of a Convention right, without going to the European Court of Human Rights in Strasbourg. This act totally abolished the death penalty in UK law, though it was not required at that time.

Moreover particularly the Act makes it unlawful for any public authority to act in a way which is incompatible with the Convention, unless the wording of an Act of Parliament means they have no other option. It also bound UK judges to take into consideration the decisions of the Strasbourg Court and to interpret the law properly which is compatible with the Convention. However, if it is not possible to interpret legislation properly so as to make it compatible with the Convention, then the judges are not allowed to nullify it. Just they can issue a declaration of incompatibility. This declaration does not affect the legitimacy of the Act of Parliament, so the Human Rights Act can only seek to maintain the principle of Parliamentary sovereignty. Then individual can take his case to the Strasbourg court as a last resort. [7]

Similarly Under section 3(1) the Human Rights Act bound all courts and tribunals in the United Kingdom to interpret law so far as to make it possible in a way compatible with the principles laid down in the European Convention on Human Rights. The judicial creativity on this issue has been much discussed but now it is clear that the courts cannot interpret Acts of Parliament which may weaken their clear meaning. The courts can just issue a declaration of incompatibility under section 4, describing how legislation appears to violate human rights. The declaration does not nullify the legislation, but provides the amendment of the legislation by a special fast-track procedure under section 10 of the Act.

Likewise “the Human Rights Act applies to all public authorities within the United Kingdom, including central government, local authorities, and bodies exercising public functions.” [8] It also includes the Courts. However, when the Parliament is acting in its legislative capacity then it does not included in it. [9] The important provisions subsist for the devolved Scottish administration under the Scotland Act 1998, which directs that the Scottish Parliament and Scottish Executive have no authority to do anything contrary to the ECHR. [10]

Public authorities and international human rights obligations

The important perspective is the international human rights obligations which the Act is purposed to bring home. There are two provisions of the Convention which are not comprised in the Human Rights Act for the reason that the Act as a whole is purposed to protect them. The first provision is the duty of the State’s to protect the Convention rights and freedoms of their individual`s within its jurisdiction under Article 1 and the second provision is to ensure an effective remedy for violation of Convention rights under Article 13. These two Articles were taken together, which required a State are under an obligation to ensure that everyone’s Convention rights are actively protected, and that anyone can obtain remedy where those rights are violated. In their statement on the Bill, the Home Secretary pointed out. The principle of bringing rights home indicated that liability in national proceedings should lie with authorities in respect of whose actions the UK Government were liable in Strasbourg. [11]

Moreover it is permanently founded in the Strasbourg jurisprudence that the State cannot evade its liability to protect Convention rights by delegation to private authorities or individuals. Where the State may trust on private organisations to accomplish essential public functions, particularly important for the safeguard of Convention rights, such as provision of primary education or legal aid, it also provides responsibility for any violation of the Convention that arises from the actions of those private authorities. This principle comprised under other international human rights instruments to which the Great Britain became a party. This includes the International Covenant on Civil and Political Rights (ICCPR).

Similarly the principle of positive obligations is an important doctrine of ECHR law, which is also included in its international context in which the meaning of public authority is to be determined. Positive obligations place a restriction not to interfere with Convention rights, and are require in some circumstances, that the state must take positive steps to safeguard people’s rights against the interference by others. This principle arises in part from Article 1 of the ECHR, which provides that states protect the Convention rights to all within their jurisdiction. For instance, under Article 2, which guarantee a right to life of its individual`s and it bound state to protect the basic rights of those whom they know or ought to know are at risk. This is relevant, for instance, in care home settings or healthcare.

In addition to, the right to non-discrimination in the enjoyment of Convention rights is also safeguarded by Article 14. It is also relevant in due course. Article 14 protects against unjustifiable discrimination in context to the other Convention rights, whatever the reasons of that discrimination. Where, for instance, there was found to be unjustifiable discrimination in the protection of Article 8 rights to respect for private life as between different local authority areas, Article 14 would be violated. [12]

Public authorities under the Human Rights Act (the parliamentary debates)

The Ministerial statements during debates on the Human Rights Bill recommended that the aim of the public function determine under section 6(3)(b) was to make the Act broader rather than restrictive in its sense, in accordance with the doctrine that delegation did not clear the State of responsibility. The then Lord Irvine and Lord Chancellor pointed out that the drafting of the material provisions was planned to provide as much safeguard as possible for the rights of the individual against the misuse of authority by the State. There was an outstanding decision to reject a more prescriptive approach and enlist those authorities subject to responsibilities under the Act. Such an approach was limiting the access to remedy of the citizen in ways which might be incompatible with Article 13.

Moreover the Home Secretary and the then Lord Chancellor in the parliamentary debates in both Houses made it clear that privatised or contracted-out public services were intended to be brought within the scope of the Act by the public function provision. It was also made clear that the Government intended the provisions of the Act to be adaptable to the changing structures of public realm and to changes in the distribution of power and responsibility for factors affecting individual rights.

Similarly 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 violate 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 authorities.

However the courts are under an obligation to interpret the legislation to determine exactly where the lines between public and private functions should be drawn. It is quite clear that Parliament predicted that the scope of section 6(3)(b) should be based primarily on the nature of the function being performed by a private body, rather than the real nature of the body itself. In an important statement the Home Secretary pointed out, 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. [13]

Courts as s.6 public authorities

According to Section 6(1) of HRA “it is unlawful for public authorities to act in a way that is incompatible with a Convention right.” [14] The term public authority is left undefined by the act. Moreover under section 6 of HRA, the core public authorities are required to comply with Convention rights in all their activities whether they are private or public. Similarly the term core public authority does not find its way into HRA. But in Aston Cantlow and Wilmcote Parochial Church Council, the House of Lords considered that such an authority was falling within section 6 without reference to section 6(3). Importantly, a core public authority could not in the view of the House of Lords, ever claim to be a victim of violation of Convention rights. This is because a core authority is effectively a governmental organisation. However by virtue of HRA s 6(3)(b), other public authorities sometimes called hybrid authorities are required to comply with Convention rights only when exercising a public function. The principle for having hybrid authorities is that such spheres may from time to time exercise functions of a governmental nature even though they are non-governmental bodies and therefore efficient of themselves being the victim of violation of Convention rights. Therefore the distinction or classification between core and hybrid public authorities is highly remarkable. Whilst it was a dichotomy recognised at the time that the HRA was drafted, at least as different Ministerial statements at the time suggest its importance has only recently materialized as a result of the decision in Aston Cantlow. [15]

In addition to, a core authority should be interpreted relatively narrowly. As Lord Nicholls determined “ … This feature, that a core public authority is incapable of having Convention rights of its own, is a matter to be borne in mind when considering whether or not a particular body is a core public authority. In itself this feature throws some light on how the expression public authority should be understood and applied. It must always be relevant to consider whether Parliament can have intended that the body in question should have no Convention rights.” [16]

But on the other hand Lord Nicholls determined “Unlike a core public authority, a hybrid public authority exercising both public functions and non-public functions is not absolutely disabled from having Convention rights. A hybrid public authority is not a public authority in respect of an act of a private nature. Here again, as with section 6(1), this feature throws some light on the approach to be adopted when interpreting section 6(3)(b). 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.” [17]

Human Rights and the Private Bodies

Section 6 of the HRA did not define for horizontal effect of convention rights. It provides rather than that public authorities are under an obligation to act compatibly with those rights, and defines such authorities to include private spheres are performing functions of a public nature unless the nature of the act in question was private. In the case of YL v Birmingham City Council the House of Lords determined that a private care home was not performing 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 (ECHR) when it tried to remove her from the home failed.

My focus is on the suggestions that would result from giving horizontal effect to convention rights, i.e. from requiring private bodies to respect the human rights. We need to bear 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 the effect is as against state institutions. For example, the US 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 have moved, often certainly, towards requiring private spheres to respect human rights i.e towards giving horizontal effect, whether direct or indirect to human rights provisions. Such extensions raise a number of theoretical and practical issues. It is concern on the part of the courts about these issues that has, in reality, produced the decisions in YL and other English cases. [18]

Similarly those who opposed to the reality that private care homes were not deemed as exercising 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. Of course most convention rights are in fact safeguarded by the ordinary law of contract and tort and by property law. A reason why there has been an insufficient cases about care homes and low cost housing, some before and some since the coming into effect of the HRA is that common law does not generally provide rights to respect for a person’s home and correspondence or private and family life, and specifically none for respect for privacy or for the home when it is not owned or rented by the claimant. Nor have our courts determined that a right to respect for one’s home needs security of tenure. For example, in Qazi v Harrow LBC [19] the House of Lords determined that it was not unpredictable with the meaning of the right to regard for a home under Article 8 of ECHR for a local authority to recover possession 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 family members under assured tenancies. But this statute did not limit to residents of care homes.

Conclusions and recommendations

A gap in human rights protection

The courts are under an obligation to determine whether a function is a public function within the meaning of section 6(3)(b) of the HRA, which is in human rights terminology are highly problematic. The application of the protection of human rights is dependent not on the nature of power being exercised, nor on its capacity to intervene with human rights, but on the comparatively arbitrary (in human rights terms) standard of the body’s administrative coherence with institutions of the State. The European Convention on Human Rights give no basis for such a limitation, which calls into question the capacity of the Human Rights Act to bring rights home to the full extent visualized by those who designed, debated and agreed the Act. Similarly the principles set out by Lord Hope in Aston Cantlow are contradictory with those earlier decisions of the lower courts. So in my point of view, the approach in Aston Cantlow is to be preferred. In addition to, a serious gap has opened in the protection which the Human Rights Act was planned to offer, and a more dynamic approach to re-establishing the real nature of the Act needs to be pursued. This is not just a theoretical legal problem. The development of the case law has outstanding and proper practical implications. [20]

Why does the meaning of public authority matter?

The responsibilities to protect fundamental human rights should not be left uncertain by those providing important public services, whether from the State or private sectors. Moreover the extent of public authority responsibilities under the HRA is greatly significant to both the providers and the recipients of these services in context of private and voluntary sector involvement in public service provision and in case of human rights violations by private and voluntary sector providers of public services will give rise to accountability under the Human Rights Act is likely to depend on a number of relatively arbitrary criteria. Similarly under Article 1 and 13 of ECHR the inadequacies and gaps in human rights protection arising from this situation are likely to mean that the UK let down of its international obligations to secure the effective protection of Convention rights and to provide an effective compensation for their violation. However the imbalances in human rights protection arise from the current case law on the meaning of public authority are unfair and without solid grounds in human rights principles. Unless other ways of redress can be found, this situation is likely to deprive individuals of redress for violation of their substantive Convention rights integrated under the Human Rights Act. The situation created by the current state of the law is inadequate, unjust and variable with the intention of Parliament. [21]

Concerns of service providers and users

A private sector body that is executing a public function for the sake of section 6 of the HRA would not endanger the independence from the state of a non-governmental body. Similarly the financial burden, obligation and possible conflict with other duties, for instance, under charity law, that public authority status may enforce on a voluntary sector organisation needs to be taken into consideration by State bodies when they contract-out public functions. However it is immaterial to determine the application of the Act whether an organisation performing a public function is considered to be within or without the public sector for wider, including financial aims. [22]

Is the category of functional public authority necessary?

The responsibility of the contracting-out body for conformity with Convention rights by contractors is not a sufficient substitute for direct accountability of the service provider under section 6. If a human rights culture is to be developed in our public administration and public services, this will not encourage by removing from those delivering sensitive services the responsibility for compliance with, and the liability for violations of those human rights standards. Similarly the deficiency of a cause of action to bring a case to court would mean that in many cases horizontal application of Convention rights would be of little assistance to victims of a violation of Convention rights by a provider of a public service which was not a public authority. Section 6 of the HRA is a pure legal mechanism which provides full responsibility for the protection of, and direct accountability for violations of Convention rights. [23]

Principles of interpretation

The two main doctrines public and function have posed imbalances in the application of section 6 through reality on standard, which includes institutional approach to the State and on statutory grounds, which are not guaranteed either by the terminology of the Act or by the ECHR. A function is a public one when government has taken its responsibility. Moreover under direct statutory obligation a public function does not need to do so. But under section 6 of the Human Rights Act, there should be no difference between a body providing housing because it itself is required to do so by law, and a body providing housing because it has contracted with a local authority to provide the service. The loss of a single step in approach to the statutory duty does not change the peculiarity of the function and not the peculiarity of its capacity to interfere with Convention rights as well. Similarly institutional connections with a public body are not important to identifying a public function. However the assignation of public authority responsibilities to private sector spheres is clear on the grounds that private body operating to discharge a government programme is likely to exercise a degree of power and control over the realisation of the individual’s Convention rights. [24]

Conclusion

The application of the functional public authority provision which is used in section 6(3)(b) of the HRA leaves insufficiencies and real gaps in theory and practices. These inadequacies in protection may well leave the UK in violation of its international obligations to safeguard the Convention rights of all those in the jurisdiction and to provide mechanisms for remedies where those rights are violated. Moreover the courts are under a duty to interpret the meaning of the public authority under close review and would pay particular attention to the need to intervene in future cases. We can also compel the government to intervene in the public interests as a third party in cases where it can press the case for a broad, functional interpretation of the meaning of public authority under the HRA. As a matter of broad principle, where it possess a function that has its origin in governmental responsibilities, in such a way as to compel individuals to trust on that body for realisation of their Convention human rights.