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...