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Published online by Cambridge University Press: 07 July 2005
One feature of the current debate concerning the term “public authority” in the Human Rights Act 1998 is a rule to the effect that public authorities are not themselves capable of having and enforcing Convention rights. In what follows this will be referred to as the “rights-restriction rule”. The position was confirmed by the House of Lords in Aston Cantlow and has been given effect by the courts in relation to English local authorities and to NHS Trusts in Scotland. Despite this, doubts have been expressed. In particular the parliamentary Joint Committee has suggested, though without argument, that the denial of Convention rights to public authorities may be wrong in principle and that there are “circumstances in which public authorities have Convention rights”.
Thanks to anonymous reviewers, Richard Edwards and Professor Barry Hough; all errors and infelicities are the author&s.
1 E.g., Grosz, S., Beatson, J. and Duffy, P., Human Rights: The 1998 Act and the European Convention (London 2000)Google Scholar, chapter 4, 4.42-4.44; Oliver, D., “The Frontiers of the State: Public Authorities and Public Functions under the Human Rights Act” [2000] P.L. 476Google Scholar. For a pre-Act discussion see Oliver, D., “The Underlying Values of Private and Public Law”, in Taggart, M. (ed.), The Province of Administrative Law (Oxford 1997)Google Scholar, ch. 11.
2 Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v. Wallbank and another [2003] UKHL 37, [2004] 1 A.C. 546, at [8] (hereinafter Aston Cantlow v. Wallbank).
3 R (Mayor of the City of Westminster) v. Mayor of London [2002] EWHC (Admin) 2440, [2003] B.L.G.R. 611, at [93]-[96]; R (Medway Council and others) v. Secretary of State for Transport [2002] EWHC (Admin) 2516, [2003] J.P.L. 583, at [20].
4 Grampian University Hospitals NHS Trust v. Procurator Fiscal [2004] H.R.L.R. 18; Appeal Court, High Court of Justiciary.
5 House of Lords, House of Commons Joint Committee on Human Rights, The Meaning of Public Authority under the Human Rights Act, Seventh Report of Session 2003-4, HL Paper 39, HC 382, para. [23].
6 Human Rights Act 1998 ss. 7(1) and 7(7); Article 34 ECHR. Eckle v. Germany (1982) 5 E.H.R.R. 1, [66] (“… the person directly affected by the act or omission which is in issue …”). On comparisons with “ordinary” judicial review see Miles, J., “Human Rights Standing under the Human Rights Act 1988: Theories of Rights Enforcement and the Nature of Public Law Adjudication” [2000] C.L.J. 133.Google Scholar
7 Grosz, Beatson, and Duffy, Human Rights, op cit, paras. [4.42]-[4.44].
8 E.g. R v. Ministry of Defence ex parte Smith [1996] Q.B. 517, 536 (CA).
9 R v. Secretary of State for Employment ex parte Equal Opportunities Commission [1995] 1 A.C. 1; cf R (Howard League) v. Secretary of State for the Home Department [2002] EWHC (Admin) 2497, [2003] 1 F.L.R. 484: declarations on the application of the Children Act to Youth Offender Institutions.
10 E.g. R v. Re Northern Ireland Human Rights Commission [2002] UKHL 25, 2002] H.R.L.R. 35. See Hannett, S., “Third Party Intervention: In the Public Interest?” [2003] P.L. 128–150.Google Scholar
11 E.g. Zentralrat D.S.R.R. v. Germany (1997) 23 E.H.R.R. CD 209; A and others v. Denmark (1996) 22 E.H.R.R. 458.
12 See further: Miles, J., “Standing in a Multi-layered Constitution” in Bamforth, N. and Leyland, P. (eds.), Public Law in a Multi-Layered Constitution (Oxford 2003)Google Scholar, ch. 15.
13 E.g. R (Medway Council and others) v. Secretary of State for Transport [2002] EWHC (Admin) 2516, [2003] J.P.L. 583, at [20]. The authority conceded it had no Convention rights of its own but its claim to argue in terms of the Convention rights of its population was rejected. There is little discussion and it is unclear whether the authority's point was rejected because of the rights-restriction rule or because the authority was not “directly affected”.
14 R (Mayor of the City of Westminster) v. Mayor of London [2002] EWHC (Admin) 2440, [2003] B.L.G.R. 611, at [93]-[96].
15 Supperstone, M. and Coppell, J., “Judicial Review after the Human Rights Act” [1999] 3 E.H.R.L.R. 301–329Google Scholar, 309, a view supported in Re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10, [2002] 2 A.C. 291, at [88]. Cf. R (Rusbridger) v. Attorney General [2003] UKHL 38, [2004] 1 A.C. 357, at [21], cited in Miles “Standing in a Multilayered Constitution”. Standing for such a declaration, it is submitted, is likely to be refused at least where it would be tantamount to recognising Convention rights vested in a public authority.
16 E.g. in Local Authority v. Health Authority (disclosure: restriction on publication) [2003] EWHC (Fam) 2746, [2004] Fam. 96 (a dispute over rights of publication). Convention rights were relevant because the court was a public authority; but in effect the authority was asserting a right to freedom of expression); cf., London Regional Transport v. Mayor of London [2001] EWCA Civ 1491, [2003] B.L.G.R. 611.
17 As in the Zircon affair (Bailey, S., Harris, D. and Jones, B., Civil Liberties Cases and Materials. 4th ed. (London 1995), pp. 454–455)Google Scholar. That a search of offices can raise an issue under Article 8 has been accepted in, for example, Noviflora AB v. Sweden (1993) 15 E.H.R.R. CD 6.
18 As in R. (Medway Council and others) v. Secretary of State for Transport [2002] EWHC (Admin) 2516, [2003] J.P.L. 583.
19 A possibility, for example, given developments in corporate manslaughter; see Forlin, G., “Directing Minds: Caught in a Trap” (2004) 154 N.L.J. 326.Google Scholar
20 The Article 6 right of a standard public authority not to be compelled to accept Alternative Dispute Resolution was implicitly recognised in Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576, [2004] 4 All E.R. 920.
21 Oliver, D., “Functions of a Public Nature under the Human Rights Act” [2004] P.L. 329Google Scholar; cf. Craig, P., “Contracting out, the Human Rights Act and the Scope of Judicial Review” (2002) 118 L.Q.R. 551–568;Google Scholar and Joint Committee on Human Rights, “Meaning of Public Authority”.
22 The Joint Committee on Human Rights, “Meaning of Public Authority” urges a version of the broader view. This may explain the comment in text to note 5 above.
23 Bennion, F., “What sort of Human Rights Act?” (1998) 148 N.L.J. 488.Google Scholar
24 Aston Cantlow v. Wallbank [2003] UKHL 37, [2004] 1 A.C. 546, at [8] per Lord Nicholls, [47] per Lord Hope, [87] per Lord Hobhouse and, by strong implication, [158]-[160] per Lord Rodger.
25 See, for example, Collected Editions of the “Travaux Prèparatoires” of the European Convention of Human Rights (The Hague 1975)Google Scholar, Volume I, p. 210 and, in particular, (1976) Volume III, p. 270. See further Miles, “Human Rights Standing”.
26 Confirmed in Aston Cantlow v. Wallbank [2003] UKHL 37, [2004] 1 A.C. 546: a (standard) public authority is a body “whose nature is governmental in a broad sense of that expression” at [7] per Lord Nicholls; a body “exercising governmental power” with “a range of functions which are, in a broad sense, governmental” at [160] per Lord Rodger.
27 Aston Cantlow v. Wallbank [2003] UKHL 37, [2004] 1 A.C. 546, compare [7] with [12], per Lord Nicholls. Failing to distinguish institutional from functional tests in some recent Court of Appeal cases has been criticised, see D. Oliver, “Functions of a Public Nature”, and Joint Committee on Human Rights, “Meaning of Public Authority”.
28 Aston Cantlow v. Wallbank [2003] UKHL 37, [2004] 1 A.C. 546, at [7] per Lord Nicholls referring to Oliver, “Frontiers of the State”.
29 Grampian University Hospitals NHS Trust v. Procurator Fiscal [2004] H.R.L.R. 18, at [9] and [19].
30 Human Rights Act 1998, ss. 6(3)(b) and 6(5).
31 E.g. punishment in independent schools engages state responsibility (Costello-Roberts v. United Kingdom (1995) 19 EHRR 112), and can found rights claims, at least by their head teachers (R (Williamson) v. Secretary of State for Education and Employment [2005] UKHL 15, [78]; but cf. [35].
32 Ayuntamiento de Mula v. Spain (Ap 55346/00) (1991) 68 D&R 209.
33 Article 34 would not be a barrier if, for example, the NSPCC, exercising its functions under the Children Act 1989, was prevented by a public authority from publishing matter relating to that function.
34 Professor Oliver has pointed out that it is inappropriate in the Convention context to express this in terms of establishing domestic remedies against those bodies ‘for whose acts the state is answerable before the European Court of Human Rights’, D. Oliver, “Functions of a Public Nature”, 333-334.
35 Aston Cantlow v. Wallbank [2003] UKHL 37, [2004] 1 A.C. 546, at [159].
36 “… a realistic and modern definition of the state” HC Deb. vol. 314 col. 406 (17th June 1998) (Jack Straw MP). See also Aston Cantlow v. Wallbank [2003] UKHL 37, [2004] 1 A.C. 546 at [9] per Lord Nicholls and at [159] per Lord Rodger.
37 For recent discussions see, e.g., Bamforth, N. and Leyland, P., (eds.) Public Law in a Multi-Layered Constitution (Oxford 2003)Google Scholar.
38 E.g., the dismissal of the Chief Executive of the Prison Service in 1995.
39 See, for example, Craig, P., Administrative Law 5th ed. (London 2003)Google Scholar, ch. 4; Craig uses both terms.
40 See above, note 28 and related text. In Aston Cantlow v. Wallbank [2003] UKHL 37, [2004] 1 A.C. 546 at [152], Lord Rodger implies that the Equal Opportunities Commission is a standard public authority.
41 E.g., Harlow, C. and Rawlings, R. Law and Administration 2nd ed. (London 1997)Google Scholar, ch. 10.
42 See Oliver “Frontiers of the State”.
43 E.g. the Equal Opportunities Commission's duty to promote equality of opportunity (Sex Discrimination Act 1975 s. 53(1)) or Ofcom's duty to “further the interests of citizens in relation to communications matters” (Communications Act 2003 s. 3(1)(a)).
44 Ayuntamiento de Mula v. Spain (Ap 55346/00) (1991) 68 D&R 209
45 Danderyds Kommun v. Sweden (Ap 52559/99) (2001) First Chamber; see also Rothenthurm Commune v. Switzerland Ap 13252/87 (1988) D&R 59, p. 251.
46 Holy Monasteries v. Greece (1994) 20 E.H.R.R. 1.
47 Allison, J.W. “Theoretical and Institutional Underpinnings of a Separate Administrative Law”, in Taggart, M. (ed) The Province of Administrative Law (Oxford 1997)Google Scholar, 71.
48 See Oliver, D. Common Values and the Public-Private Divide (London 1999)Google Scholar, pp. 17-19 and the citations therein.
49 Foster v. British Gas [1990] ECR-I 3313: “a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing public services under the control of the state and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals”.
50 See in particular Oliver, “Functions of a Public Nature”.
51 Professor Oliver's general theory includes the imposition of standards of “considerate decision-making” on private, often monopolistic, companies and organisations exercising public power.
52 [1995] 1 All ER 513. Discussed by Oliver, “Underlying Values of Private and Public Law.”
53 Oliver, “Frontiers of the State”, at pp. 492-493.
54 Hannett, S., “Third Party Intervention: In the Public Interest?” [2003] P.L. 128–150Google Scholar; cf. M. Arshi, and C. O’Cinneide, “Third Party Interventions: the Public Interest Reaffirmed” [2004] P.L. 69-77.
