Defining Public Authority and Public Function

211188 A. When deciding whether or not the courts have adopted a coherent approach to defining “public authority” and “public function”, one must first look to the section of the Human Rights Act 1998 (“the Act”) which addresses this. In section 6, the Act holds that “[i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right”.[1] It goes on to qualify what it means by “public authority” by adding that this term will include a court or tribunal, and any person whose function is a function of a public nature, but does not include the House of parliament or those exercising parliamentary functions.[2] The Convention rights are included as well, and consist of various fundamental human rights such as fair trial rights; the right to education etc.[3] The Act is therefore a broad protection of fundamental rights, and it is thus incredibly pertinent to determine the exact nature of the horizontal and vertical application of the provisions.[4] This is especially in light of the suspicions many European countries have in regard to the extent to which the European Court of Human Rights can extend its influence not only into the judiciary, but into the legislature as well.[5] In light of the importance of the possible effects of this Act, there have actually been multiple methods used to interpret this section. The broadest interpretation as to the scope of “public authorities” has been adopted by Sir William Wade – because section 6 (3) includes courts and tribunals, he asserts this means that, regardless of the parties before the court, the court will always be subject to the Act.[6] This means that, horizontally, the Act will be used to determine widely to private bodies as well. However, this interpretation seems to both ignore the “function” as mentioned in section 6 (1), as well as the fact that, if the Act was meant to apply to all disputes before a court, the Legislature would not have needed to include the term “public authority” at all. When passing the Act, the Ministers involved held that “public authority” should generally be given a wide meaning, and be determined on a case by case basis.[7] In drafting, it was established that this should be done by reference to “public function”.[8] This method of looking at the function, rather than nature, of the office concerned is a method adopted by many jurisdictions when considering the issues of judicial review, and seems true to the legislature’s intention due to their express inclusion of the term “function” in section 6 (1).[9] In practice though, the courts tend to look at both the source and the nature of the power.[10] For instance, in situations where the power arose from a private contract, it will generally not be considered sufficiently “public” to fall under the Act, regardless of the function.[11] However, this approach seems to be diverting from the broad application originally intended and suggested by the Lord Chancellor in regard to scope.[12] There are “pure” public authority’s, which tend to be defined narrowly on the source of the power acted upon, but “functional” public authorities are more broadly defined in practice by the courts.[13] Because of this variance in tests and lack of coherence in definition, there are often instances where private bodies are essentially acting as public authorities, but the public are not protected by the rights enshrined under the Act due to the seemingly irrelevant “…criterion of the body’s administrative links with institutions of the State”.[14] These definitions then lead to uncertainty as to the application of the Act, as well as the extent to which human rights are practically protected in the United Kingdom. In investigating this concern, the suggestion has been made that there must be intervention into the case law to develop the jurisprudence.[15] The House of Lord’s has submitted that a body is“…performing a public function under section 6(3)(b) of the Human Rights Act where it exercises a function that has its origin in governmental responsibilities, in such a way as to compel individual’s to rely on that body for realisation of their Convention human rights”.[16] This apparent compromise both recognises the reality of the function (i.e. in practice, what type of power is being exerted?), while also appreciating the necessity for advancing human rights and providing for certainty in jurisprudence. B. The Human Rights Act has clear application in regard to judicial review in the United Kingdom, but there are questions as to the extent of the impact. The Act has incorporated into the United Kingdom human rights principles which must be applied within domestic cases, but how do these effect judicial review in particular? Lord Hoffman said: “Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental human rights...But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost...In the absence of express language or necessary implication to the contrary, the courts...presume that even the most general were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document”.[17] In other words, the Act has changed the way in which courts now interpret legislation, and the Act is now the key interpretative document referred to.[18] However, the courts can not strike down legislation, but can merely declare it incompatible and refer it back to the legislature to determine whether, or how, they will address the incompatibility if the courts are unable to re-interpret it to cure the defect.[19] The Act has thus brought to the fore as a distinct juridical consideration how the separation of powers should be maintained within the United Kingdom.[20] However, the actual balance in terms between the judiciary and legislature has fundamentally remained in tact.[21] There has been a theoretical development: judicial review is now considered in light of human rights, and not just the enforcement of public duties.[22] Further too, the Human Rights Act will be enforced most often through judicial review proceedings.[23] In some ways the Act provides a far more limited form of judicial review. Locus standi is dealt with in section 7 where its states that “[i]f the proceedings are brought an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act”.[24] This then means that public interest groups have to act through ‘victims’, whereas the typical procedure for judicial review does not require standing to proven at all.[25] In cognisance of the broad application of the Act, the legislature now tends to draft with the impact of the Act in mind.[26] In this way, the Act has exerted a strong human rights jurisprudence influence, but without allowing the courts to breach the principle of parliamentary sovereignty. Generally though, the impact on judicial review itself, and thus in turn parliamentary sovereignty, is minimal. Though the judiciary can declare legislation to be ‘incompatible’, it does not have the power to force the government to act on this incompatibility.[27] Realistically though, the value judgment in regard to legislation in view of Human Rights interpretation that the judiciary now has, does instil the courts with a certain amount of political pressure that they never had before.[28] However, the government has expressly held that in spite of this new influence of the judiciary, they will not bend and defer to every incompatibility declaration, and in that way ‘...the sovereignty of Parliament will be preserved both in principle and in practice’.[29] BIBILOGRAPHY Bakker, Rob; Heringa, Aalt Willem and Stroink, Frits (1995) ‘Judicial control: comparative essays on judicial review’ Maklu: Netherlands. Bamforth, Nicholas (1999) ‘The Application of the Human Rights Act 1998 to public authorities and private bodies’ Cambridge Law Journal 58(1), March 1999: Great Britain. Beatson, Jack (1999) ‘The Human Rights Act and the criminal justice and regulatory process’ The University of Cambridge, Centre for Public law: United Kingdom. Department for Constitutional Affairs (2006) ‘Review of the implementation of the Human Rights Act’ accessed 10 July 2008 at https://www.dca.gov.uk/peoples-rights/human-rights/pdf/full_review.pdf. Ewing, K.D (1999) ‘The Human Rights Act and Parliamentary Democracy’ Modern Law Review 62, 79. Joint Committee on Human Rights (2004) ‘The meaning of public authority under the Human Rights Act: seventh report of session 2003-2004’ accessed 10 July 2008 at https://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/39/39.pdf. Woolf, Lord (2005) ‘Has the Human Rights Act made Judicial Review Redundant?’ ALBA Annual Lecture, 23 November. Turpin, Colin and Tomkins, Adam (2007) ‘British Government and the Constitution: text and materials’ Cambridge University Press: United Kingdom. STATUTE

Human Rights Act 1998.

CASE LAW

President of Republic of South Africa and Others v. South African Rugby Football Union and Others 2000 (1) SA 1 (CC).

R v. Insurance Ombusman Bureau, ex p. Aegon Life Assurance Ltd [1994] C.L.C 88, 93.

1

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Footnotes

[1] Human Rights Act 1998 s.6(1). [2] Ibid s.6(3). [3] Ibid schedule 1. [4] Bamforth, N (1999) p.159. [5] Bakker, R (1995) p.154. [6] Bamforth (ibid) p.163. [7] Ibid p.160. [8] Ibid. [9] See, for instance, in South African judicial review jurisprudence President of Republic of South Africa and Others v. South African Rugby Football Union and Others 2000 (1) SA 1 (CC). [10] R v. Insurance Ombudsman Bureau, ex p. Aegon Life Assurance Ltd [1994] C.L.C 88, 93. [11] Beatson, J (1999) p.102. [12] Ibid. [13] Joint Committee on Human Rights (2004) p.16. [14] Ibid. [15] Ibid p.56. [16] Ibid. [17] Turpin, C (2007) p.62. [18] Human Rights Act (ibid) s.3. [19] Ibid s.4; Turpin (ibid) p.62. [20] Turpin (ibid) p.110. [21] Department for Constitutional Affairs (2006) p.1. [22] Woolf, L (2005) p.1. [23] Ewing, K.D (1999) p.88. [24] Human Rights Act (ibid) s.7(3). [25] Woolf (ibid) p.3. [26] Turpin (ibid) p.274. [27] Ewing (ibid) p.92. [28] Ibid. [29] Ibid p.99.

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