Section 6 Flashcards
Section 6
Section 6- Acts of Public Authorities
(1) it is UNLAWFUL FOR A PUBLIC AUTHORITY TO ACT IN A WAY WHICH IS INCOMPATIBLE WITH A CONVENTION RIGHT
(2) this does not apply if:
(a) as a result of one or more provisions of primary legislation, the authority could not have acted differently; or
(3) in this section “public authority” includes:
(a) a court or tribunal
(b) any person certain of whose function are functions of a public nature
(4) parliament is not included as a public authority
(5) in relation to a particular act, a person is not a public authority by virtue of s.6(3)(b) if the nature of the act is private
What are the three types of public authorities?
- Core Public Authorities
- Hybrid Public Authorities
- Courts or Tribunals
Core Public Authorities.
In the case of Aston Cantlow [2003] it was outlined that a public authority is “a reference to a body whose nature is governmental in a broad sense of that expression…this means factors such as possession of special powers, democratic accountability, public funding and obligations to act in the public interest, and statutory constitution are considered”.
Hybrid Public Authorities.
Due to the nature of many governmental organisation not being solely government based in administration, the notion of hybrid public authorities was developed. During the parliamentary debates, an example raised of such a body was a private security firm running a public prison. When exercising their private function the body is covered by s.6(5) HRA, however when exercising their public function s.6(1) HRA.
Where is the line between public and private functions?
In the case of Aston Cantlow, Lord Nicholls notes that there is no single test for determining when a body is exercising their public or private function. However, he outlines certain factors to consider, such as; are they publicly funded, are they exercising statutory powers, and are they providing a statutory service. This can be evidenced through the case of YL v. Birmingham City Council [2007].
YL v. Birmingham City Council [2007]
- In the case of YL, a local authority had a statutory duty to arrange accommodation for an elderly claimant, they did so in a private care home.
- Upon her removal from the care home, and subsequent breach of Article 8 rights, it was considered by the court if the private care home could amount to a public authority.
- This was a close decision by the House of Lords with a 3/2 divide, it was held that it was not a public authority.
- Lord Scott noted the commercial context of the home, running for profit. Whereas, there was a strong dissenting judgement from Baroness Hale, who considered the role one of the public interest, and should not be allowed to proceed through artificial considerations.
- Davis (2009) sums up criticism on this case as encouraging an arbitrary divide in rights protection, dependent on if you get placed in a public or private care home.
Section 6 (2)
Section 6 (2) protects a public authority from the severity of s.6(1) if they could not have acted differently, it therefore uphold parliamentary sovereignty.
Courts as Public Authorities.
S.6 (3)(a) holds that if a case is presided in a court, a court may not decide something that is contrary to the HRA.
This can be evidenced by the case of Venables v. News Group Newspapers [2001], Another example of the court doing this can be seen in the case of Campbell v. Mirror Group Newspaper [2004].
Venables v. News Group Newspapers [2001]
Hale, L considered that individuals cannot bring a private action against one another, however this section compels the court to comply with the HRA when ruling on existing common law cases.
Lord Woolf in Poplar Housing v. Doughue
argues that just because a public authority carries out an action this does not necessarily mean it should be bound by the HRA, need to consider what the action is
A report by the Joint Committee on Human Rights in 2004
argued that there should be a function based approach rather than a institution based approach to determining if a body is public authority
Oliver (2004) argues this approach could give rise to uncertainty
A report by the Joint Committee on Human Rights in 2007
argued the function based approach was in line with what parliament intended when it enacted s.6, as it was not as narrow
the test should be if the government has taken responsibility for the institution then it should be a public authority
What was the government response to the decision in the YL case?
they passed a law stating that a care home was a public authority
Oliver (2004)
the idea of public nature is illusive under English law, it is developing similar manner to that of establishing a claim under judicial review and a test needs to be established, although she argues there has not been one yet
