UK: Who Must Comply with the Human Rights Act?

Last Updated: 31 May 2002
Article by Andrew Lidbetter

Section 6(1) of the Human Rights Act 1998 (HRA) provides that it is unlawful for a "public authority" to act in a way which is incompatible with the rights guaranteed by the European Convention on Human Rights. It is therefore important to know which bodies will be regarded as "public authorities" for the purposes of the HRA. This question is particularly acute in situations where local authorities and government departments "contract out" functions to the private or charitable sector and in relation to privatised utility companies.

There is no definition of a public authority in the HRA. Section 6(3)(b) states that public authorities include any person "certain of whose functions are public or of a public nature," but section 6(5) makes clear that such a person should not be treated as a public authority when performing acts "of a private nature". In other words, certain "hybrid" bodies will be public authorities when performing "public functions" but private bodies when carrying out private activities. In the Parliamentary debates on the HRA, the Government gave as examples Railtrack (a public authority when carrying out its statutory functions relating to safety, but not when acting as a property developer), general practitioners (exercising public functions when working for the NHS but not in relation to private patients), and private security companies (exercising public functions when running contracted-out prisons but acting privately when guarding commercial premises).

Recent cases on the meaning of "public authority"

The question of which functions are public and which are private has received consideration in three recent casesconcerning the provision of accommodation under contracted-out arrangements.

Leonard Cheshire Foundation

In R (Heather) v. Leonard Cheshire Foundation (unreported, 22 March 2002), various local authorities were under a statutory duty to provide accommodation for people in the position of the Claimants. They also had a statutory power to provide that accommodation through arrangements with voluntary organisations, and they made arrangements to fund the Leonard Cheshire Foundation to provide accommodation for the Claimants. The Foundation subsequently decided to close the home at which the Claimants were residents, and to move them to alternative accommodation. The Claimants sought to challenge the Foundation’s decision under the HRA, arguing that it violated their right to a home and family life under Article 8 of the Convention.

The crucial question in the case was whether the Foundation could be regarded as a public authority in providing accommodation for the Claimants. The Court of Appeal concluded that the role performed by the Foundation manifestly did not involve public functions, since:

  • although the public funding of the services provided by the Foundation was a relevant consideration, it was not decisive. There was no material distinction between the services provided to residents funded by the local authorities and residents funded privately;
  • there was no "public flavour" to the Foundation or its functions, and it could not be said that the Foundation was standing in the shoes of the local authorities. The legislation conferred powers on the local authorities alone, and the arrangements with the Foundation did not transfer any statutory functions to the Foundation; and
  • the fact that the Claimants would not be able to rely on the Convention against the Foundation if it were not a public authority did not provide a reason for classifying its functions as public rather than private.

The most significant factor in this case seems to have been the fact that the statutory duty under the relevant legislation remained at all times with the local authorities. The local authorities retained an obligation to respect Article 8 of the Convention (but it was accepted that no claim could be brought against the authorities in respect of the Foundation’s decision to move the Claimants). However, since the Foundation was not exercising public functions, the Claimants’ application for judicial review under the HRA was dismissed.

Poplar Housing and Regeneration Community Association Limited

The Heather decision may be contrasted with the Court’s earlier judgment in Poplar Housing and Regeneration Community Association Limited v. Donoghue [2002] QB 48. The Defendant in that case had been a local authority tenant. Her home was transferred to a housing association which had been set up by the authority to take over its housing stock, with central government funding for housing improvements. The local authority had previously determined that the Defendant had been intentionally homeless, and the association issued a summons for possession of the property. The Defendant sought to rely on Article 8 of the Convention against the association.

The Court of Appeal held that, for the purposes of the HRA, housing associations were not "standard" public authorities, regarded as public authorities for all purposes. The fact that the association was a charity motivated by the public interest did not point towards it being a public authority. However, if a particular function performed by the association was public in nature, it would be a "hybrid" or "functional" public authority in performing that function.

The Court noted that the council did not transfer its primary public duties to the association, and that providing accommodation was not, without more, a public function. However, an act which would otherwise be private could become public if it had features which imposed a "public stamp" on it. In this case, the "public stamp" was provided by the very close relationship between the local authority and the association: the authority had established the association, they had several board members in common, and the association was subject to the authority’s guidance as to how it treated the Defendant. Furthermore, at the time of the transfer it was intended that the Defendant should be treated no better or worse than if she remained a local authority tenant. The Court therefore came to the conclusion that, having taken on the local authority’s housing stock, the housing association stood in relation to the Defendant "in very much the position previously occupied by [the authority]". The role of the association was so "closely assimilated" to that of the council that it should be regarded as a functional public authority for the purposes of the HRA in this case.

Partnerships in Care Limited

The third case in the recent trilogy is R (A) v. Partnerships in Care Limited (Keith J, unreported, 11 April 2002). The Claimant suffered from a severe personality disorder and was detained under the Mental Health Act. The health authority had a statutory power to enter into contracts for private hospitals to provide treatment for people with mental disorders, and the Claimant was therefore detained at a private psychiatric hospital operated by the Defendants. The hospital was registered as a mental nursing home, which meant that its managers came under a statutory duty to provide adequate staff and treatment facilities. The managers subsequently decided to stop treating patients with personality disorders, and the Claimant applied for judicial review, alleging violations of her rights under the Convention.

Keith J accepted that the hospital might not have become so closely "enmeshed" in the activities of the health authority that it assumed any of the authority’s obligations (as in Donoghue). However, he held that the statutory duty to provide adequate facilities imposed a free-standing obligation on the hospital and meant that its decision to change the focus of the Claimant’s ward was a decision of a public nature.

The judge held that the nature of the functions performed by the hospital would also make it a functional public authority in this case. Drawing an analogy with private prisons, he considered it significant that patients such as the Claimant were admitted under compulsion in order to receive treatment which could enable them to live in the community again. There was a public interest in the hospital’s decision because failure to provide the treatment which psychiatrists had deemed necessary could prolong patients’ detention.

General principles and implications

These are clearly important decisions on the principles which apply where public services are contracted out. In both Heather and Donoghue, the Court of Appeal accepted that the definition of a public authority for the HRA was not clear but should be given a "generous interpretation". However, it also held that merely performing an activity which would otherwise be carried out by a standard public authority was not enough to make a private body public, even though those activities would constitute public functions if carried out by a standard public authority. Otherwise, any private company providing services for a public authority (such as a hotel providing temporary accommodation for a housing authority, or a private

company processing blood samples for an NHS hospital) might be said to perform a public function. This, according to the Court, was not the intention of the HRA. Similarly, the Court in Heather held that the degree of public funding would not be decisive as to whether a body performed a public function.

The question of whether public functions are being exercised clearly depends on all of the circumstances of the case. The recent cases provide some indication of the factors which will determine whether a body which provides services for a public authority is performing acts of a public nature. They suggest three possible criteria:

  • Public nature of the activity. Heather and Partnerships in Care indicate that it will be necessary to consider the nature of the activity being performed, including whether there is a public interest in the proper performance of the activity.
  • Close control by a public authority. In Donoghue the Court of Appeal held that acts are more likely to be public if they are "enmeshed in the activities of a public body", but not merely because they are supervised by a public sector regulator.
  • Statutory underpinning. Heather and Partnerships in Care indicate that statutory authority for what is done will be very significant. If statutory powers or duties either apply to a contractor directly or have been transferred to it from a public authority, the contractor is highly likely to be regarded as performing public functions in exercising those powers or duties.

It seems from the recent decisions that it will not always be necessary to satisfy allthree tests, but it is not yet clear whether satisfying just one of them is sufficient. Nor can it be expected that these criteria will always provide clearly answers. Of the three possible indicators that a body is a public authority, the existence of statutory powers or duties would seem to be the clearest and most easily applied. The Court of Appeal also attached weight to this factor in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v. Wallbank [2002] Ch 51. It held that a Parochial Church Council was a public authority "in the sense that it is created and empowered by law; that it forms part of the church by law established; and that its functions include the enforcement through the courts of a common law liability to maintain its chancels resting upon persons who need not be members of the church". In reaching the conclusion that the Council was a public authority, the Court attached considerable importance to the fact that it possessed statutory powers which private individuals did not, in particular the power to issue notices requiring lay rectors to repair its church.

The meaning of the different criteria for identifying a "functional public authority," and the relationship between those criteria, are matters which will undoubtedly require further elaboration from the Courts. There are likely to be many contractors whose positions will have to be clarified, as the legislative provisions which allow public authorities to contract out their services are worded in a variety of ways. For example, under the Contracting Out (Functions relating to Social Security) Order 2000, local authorities may allow contractors to exercise their functions relating to the administration of claims for housing benefit and Council Tax benefit. Arguably, the contractors could be regarded as public authorities since they "exercise the functions" of the local authority and may deal with the public in its place, but the position is not entirely clear. Even more difficult questions are likely to arise in relation to contractors providing services under public-private partnerships.

Other cases should present fewer problems. For example, the operators of contracted-out prisons should be regarded as public authorities subject to the HRA on any of the three tests set out above. They have a range of statutory powers and duties by virtue of the Criminal Justice Act 1991 and the Prisons Act 1952; they appear to stand in the position which would otherwise be occupied by the Prison Service; and in Partnerships in Care Keith J held that "the nature of their functions" would probably bring their decisions within the ambit of public law.

In relation to privatised utility companies, there will generally be some statutory "underpinning" which is sufficient to indicate that the company will be regarded as a public authority, at least in exercising its statutory functions. Hence in Marcic v. Thames Water Utilities Limited [2001] 3 All ER 698, [2002] 2 All ER 55, where a claim was brought against a statutory water and sewerage undertaker in relation to the performance of its statutory duties to maintain sewers and provide effective drainage, the parties accepted that the Defendant was a public authority for the purposes of the HRA. We would expect that the exercise of statutory functions by bodies such as Railtrack would be treated in the same way.

Discussion

The question of which bodies are "public" is not new to administrative law: it has frequently arisen where the Courts have been asked to decide which bodies are open to challenge by way of judicial review. The Courts have held that the availability of judicial review turns on whether there is a sufficient "public element", which may come from statutory authority or from the body in question being "woven into the system of governmental control".

In Aston Cantlow the Court of Appeal held that decisions on whether bodies are amenable to judicial review would "not necessarily be determinative" of whether they were public authorities for the purposes of the HRA. Indeed, it can be argued that the purposes of the judicial review procedure and of the HRA are somewhat different. Nevertheless, in Donoghue and Heather the Court of Appeal was heavily influenced by the approach in earlier judicial review cases, and in Partnerships in Care Keith J held that the issues in relation to judicial review and the HRA "stand or fall together".

However, the pre-HRA judicial review cases do not always offer clear guidance. The status of non-statutory regulatory bodies has caused particular difficulties. Whereas the Panel on Takeovers and Mergers, the financial services self-regulating organisations, the London Metal Exchange and the Advertising Standards Authority have all been held to be public bodies, the Courts have held that judicial review is not available against the insurance ombudsman, sporting regulators or the Society of Lloyd’s (at least in relation to most activities). The distinctions drawn in these cases are not always easy to apply, and difficult questions may arise as to whether the HRA imposes obligations on these bodies. However, in the recent case of Doll-Steinberg v. Society of Lloyd’s (unreported, 19 March 2002), Burnton J held that he was bound by earlier decisions that Lloyd’s was not amenable to judicial review in that case, and that it followed that Lloyd’s was not exercising public functions within the meaning of the HRA.

In some cases, it may be possible to point to another public authority which is obliged to comply with the HRA. Where services are contracted out, if the contractor is not exercising a public function, the reason will often be that legal responsibility has remained with the public authority which contracted out the service. In Heather the Court of Appeal held that, if the arrangement with the Foundation had been made after the HRA came into force, the Claimants might have been able to argue that the local authority should have imposed an obligation on the Foundation to protect their Convention rights. The Claimants could then have claimed under the contract, as persons for whose benefit the contract was made.

Furthermore, even if it is not possible to identify a public authority for the purposes of the HRA, private bodies may still be affected by the European Convention on Human Rights. The Courts are public authorities, and are therefore obliged to respect Convention rights even in cases involving private bodies and individuals. The HRA also requires the Courts to interpret legislation in accordance with the Convention wherever that is possible. For these reasons, the Convention may be relevant both to the substance of private law and to Court procedures.

© Herbert Smith 2002

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.