Role of Courts in Fulfilling the Objectives of the Human Rights Act 1998 - Research Paper Example

Role of Courts in Fulfilling the Objectives of the Human Rights Act 1998 The primary goal of the Human Rights Act is to provide human rights to every citizen and integrating these rights into daily life. As such, its aim is to enable individuals to utilize autonomy, fairness, respect, equality and dignity and to ensure the quality of public services. Therefore, the Human Rights Act has a wide operational area that covers the courts, the public at large as well as the entire community. The users of such services can seek quality services from service providers. This would improve implementation and respect for human rights in the United Kingdom1. The discrepancy created, in determining as to who constitutes a public authority, by the UK courts has adversely affected human rights protection. The failure of the courts to properly utilize the mandate given to them by Parliament, in this context, has proved to be unfair and biased towards individuals; thereby violating the provisions of the Human Rights Act 1998. As such the present status of the case law, in this regard, has proved to be irreconcilable with the objectives set out by Parliament. The Courts have been interpreting the provisions of section 6(3) (b) in a narrow way, so that most of the organizations are not covered by the definition of Public Authority. The result is that the rights provided by the European Convention are not being implemented properly. Furthermore, courts are determining whether a regulatory body can be considered as public authority, under the purview of s 6(3)(b), Human Rights Act , on the basis of their institutional position. In the Aston Cantlow case2, the House of Lords had opined that there was a need to adopt a different approach, while dealing with important public authorities. This new approach was to be different to that adopted in cases involving functional agencies. Under Section 6(1) of the Human Rights Act, such core public authorities have to invariably ensure that the rights provided by the Convention are respected in their activities, irrespective of public or private activities. Section 6(3) (b) of the Human Rights Act stipulates that the core authorities are under an obligation to ensure that the rights of Convention had been adhered to in their public functions. According to Lord Hope, there should be a clear demarcation between the public and private functions of core authorities, as required by the Section 6(3) (b) of the Human Rights Act. This particular section has a wide applicability and is dependent to a large extent on the various factors involved in any particular case. The function performed by any particular authority determines, whether that authority is a core public authority. The decision in R (on the application of Beer) v Hampshire Farmers’ Markets Ltd (2004)3 and R (on the application of A) v Partnerships in Care Ltd (2002)4 focused on the functions of core authorities, in order to draw a difference between public functions and private functions. In the case of Beer it was held that a company becomes a functional public authority if it runs farmers’ markets in a monopolistic manner. The reason behind it was that the local public authority had established an enterprise with the objective of operating a non – profit – oriented body. Furthermore, the public authority had established that enterprise in the interest of the general public, with due responsibility, as required by the extant legislation. In the case of Partnerships in Care, the plaintiff was a patient. The plaintiff required constant medical supervision and was detained under the Mental Health Act 1983. The managers of a private psychiatric clinic decided to modify the specialism of the ward, in which the plaintiff was accommodated. She sought a judicial review regarding the decision of the management, in changing the specialism of the ward. The plaintiff contended that the decision of the managers was in violation of the rights guaranteed to her by Articles 3 and 8 of the Human Rights Act. The plaintiff also argued that the decision was to be subjected to a judicial review. It was decided by the Administrative Court that the functions of the managers of the hospital were along the lines of a functional public authority, as required by the section 6(3) (b).Therefore, the managers of the hospital were exonerated from the charge of compulsory detention. The decision of the House of Lords in Aston Cantlow established the appropriate test in deciding the functionality of core public authorities. However, it cannot be predicted as to how the courts will interpret the test in each case. It is unclear as to whether the courts will focus on the function of the authority or on the nature of the entity that performs those functions. Moreover, the House of Lords did not base their judgments on the decision of the Court of Appeal in cases like Poplar Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and another; Housing and Regeneration Community Association Ltd v Donoghue (2001)5; and R (on the application of Heather) v Leonard Cheshire Foundation (2002)6 in their ruling. The Court of Appeal had decided these cases by adopting a restrictive approach to section 6(3) (b). Their Lordships did not rely on the decision in these cases. However, the Administrative Court had relied on the decisions, in its rulings, in the cases of Partnerships in Care and Beer, despite the fact that the decision in Aston Cantlow was delivered much earlier than that of Beer. The Administrative Court had concentrated mainly on the functions of the authorities and this blunder was carried over to Poplar in which it overlooked access to a judicial review in the context of susceptibility engendered by the duty specified in section 6 of the Human Rights Act. In that case the Court of Appeal had argued that to arrive at a correct definition and to determine the scope of a public authority, in the context of a public function; as provided for by section 6 of the Human Rights Act 1998, it is essential to adopt a liberal interpretation to the definition given in that section. However, the Court’s reasoning, which was based on the interpretation of section 6(3) (b) proved to be contradictory in practice. According to Lord Woolf CJ, if a public body performs a function under a statutory obligation, then such a function cannot be construed to be a public function. While carrying out its public duties, a public entity may utilize the services of a private body. In such a case the services of these private bodies should not be treated as public services and in such situations section 6 of the HRA is inapplicable. The National Assistance Act 1948 requires the local public authorities to provide residential accommodation to adults who need it. This empowers the adults with legal rights to initiate action against the local public authorities, in order to meet their accommodation needs. This duty of providing appropriate accommodation is further extended by the HRA. Since, section 6 of the HRA requires the fulfilment of Convention rights. By this specific duty, private bodies come under the ambit of this legislation, if they provide public service. This enables adults to enforce their rights against private bodies.The duty specified by section 6 of the HRA applies only with regard to functional authorities in situations where that particular function and act are public in nature. In the Poplar case the Court of Appeal did not apply this approach. Lord Woolf had opined that if a private entity performs the functions of public nature, which have to be performed by public entities; even then such functions are to be regarded as being private under section 6(3) and 6(5). The court failed to apply the complete scheme of section 6 of the HRA in the case of Poplar with regard to functional authorities. Its principal focus was in determining the identity of the entity. Lord Woolf had opined that under section 6(3) (b) it was not important to identify the body, since the body had nothing to do with public interest. A public entity exists because it carries out certain public interest functions on behalf of a public body. Moreover, such functions were supposed to have been performed by a public body. The European Court of Human Rights or the ECtHR held in the case of Costello-Roberts v UK7 that responsibility was vested on the state, under the Convention. As such the state was held responsible for the actions of a private school. Section 6 of the HRA provides that private entities are also responsible, when they engage in performing public duties. Thus it is clear that section 6 represents the intentions of Parliament. If the activities of a private entity infringe human rights, then it can be said that the private entity had penetrated into the operational area of the state. In such instances, the private entity can be made accountable to the citizens, in this regard. In the context of public bodies, it is apparent that they perform only public duties and the citizens can enforce their rights in the event of an infringement of human rights. Any person or body, some of whose functions are endowed with a public nature, is deemed to be a public authority. In R (on the application of Beer) v. Hampshire Farmers Markets Ltd8, the county council had established a private company to manage farmer markets. The court held that as this company was discharging a public function. Beer’s application for renewal of his stall was refused by this company. He had argued that this company had violated his right to seek redressal from the court, under the Human Rights Act9. To this company had contended that it was a private company and was therefore precluded from being challenged under the HRA. The court held that this company was performing a public function and that it was accordingly, subject to judicial review10. The Human Rights Act prohibits a public authority from violating rights granted by the ECHR. In R (on the application of A and others) v. Partnerships in Care Ltd, the court held that a private mental health institution was functioning as a public authority, as per the provisions of section 6(3)(b) of the HRA11. In this case, the claimant had been forcibly restrained by the Partnership Care Ltd, under the provisions of the Mental Health Act 1983. She applied for a judicial review as she contended that her rights under sections 3 and 8 of the HRA had been violated. In Housing and Regeneration Community Association Ltd v. Donoghue a restrictive approach was taken by the courts regarding section 6(3)(b) and neglected to permit access to a judicial review, in the context of section 6 HRA duty12. It had been conceded by the Appellate Court that in the context of section 6 of the Human Rights Act 1998, the terms public authority and public function were to be given a wide construal. Nevertheless, the interpretation of section s 6(3)(b) did not match such intent. Specifically, in this case, Lord Woolf CJ opined that a private body could not be considered to have performed a public function, if it had merely done what was normally done by a public body. He also stated that a public body could utilize the good offices of a private body to discharge its public functions. Thus, it would be incorrect to apply section 6 and hold that such services by a private body were public functions13. There are difficulties inherent in such an approach, for instance, if a private body performs a public duty that pertains to a public body, then such an act can be construed to be a public function. For instance, in R (Heather and others) v. Leonard Cheshire Foundation and another the appellants resided in a place that was administered and possessed by the Leonard Cheshire Foundation. The Leonard Cheshire Foundation had taken a decision to close this charitable home. The appellants’ had applied for a judicial review, with regard to this decision by the Leonard Cheshire Foundation, which had been dismissed14. Section 21 of the National Assistance Act 1948, required the local authority to provide appropriate care services. It had appointed the Leonard Cheshire Foundation to fulfil this task. The relevant provisions of this act make it mandatory to provide residential accommodation to those who are in need of care and attention, and whose age is above eighteen years. In addition, section 26 of this very same act permits the obtention of such services from a voluntary organization or a person who is not a local authority15. In its decision, the Court of Appeal held that the Leonard Cheshire Foundation had not supplanted the local authorities, because section 26 of the National Assistance Act 1948, does not bestow any powers upon it. Hence, that foundation could not be held to be exercising statutory power. Therefore, it was held that the Leonard Cheshire Foundation was not performing public functions16. The European Convention on Human Rights chiefly pertains to the individuals and their relationship with public authorities. The court interpreted the term public authority in a restrictive manner, for instance in one particular case it held that in accordance with the Human Rights Act, a provider of charitable accommodation for the old was not a public authority. Accordingly, such a body was held to be beyond the purview of its provisions. The large scale privatization of health and social care public functions, during the past two decades, has been construed to be a major legislative lapse. It has been clarified by the judiciary that these bodies are liable, in case their actions oppose their charitable goals. The courts have exhorted public bodies to compel the private bodies to uphold the rights of service users. The Human Rights Act disallowed judges to rescind incompatible primary legislation. The objective of this measure was to maintain parliamentary supremacy17. In YL v Birmingham City Council and others, the House of Lords ruled that private and voluntary service providers of care homes had to invariably protect the human rights of their inmates. The House of Lords’ ruling was ineffective against the abuse of human rights by private bodies. This situation posed a serious challenge to the intention of Parliament to protect human rights, and to ensure the highest possible protection for the citizens of UK18. Public authorities are under an obligation under the Human Rights Act to ensure the implementation of human rights. The Act also covers other entities that are engaged in performing functions relating to public interest. Those private bodies which perform public services on behalf of public bodies also fall under the scope of this Act. This implies that private bodies have to respect the human rights of the citizens who use their services. Consequently, public bodies, which sub – contract their services to private bodies cannot avoid liability for the breach of human rights by such private bodies19. In this context, the British Institute of Human Rights has stated that human rights will be instrumental in improving the quality of public services, as well as in attaining social change in a trouble free manner20. In the UK, many aged people and people with disabilities are accommodated in private or voluntary sector asylums by the local public authorities. The minimum facilities available in such places are of a very low quality. These old people are in no position to claim their human rights or to improve the standard of the facilities offered to them. The courts have opined that these old people were precluded from invoking the Human Rights Act, in order to legally proceed against the authorities, when their human rights were disregarded in such asylums21. The objective the Human Rights Act is to enforce Community Rights by imposing a duty upon the public authorities through the provisions of this act. Under section 6 of the Human Rights Act, Public Authorities are required to take various measures to comply with their obligations. However, it had been discerned that they were not taking the initiative in fulfilling their obligations. Bibliography 1. Article 6. Human Rights Act 1998 2. Bringing rights to life, retrieved 26 January 2008 from http://www.bihr.org/downloads/YLresponse20-06-07.pdf 3. Clements, Luke J and Read, Janet. Disabled People and European Human Rights: A Review of Implications. 2003. The Policy Press. P. 16 4. Costello-Roberts v. United Kingdom, 19 EHRR 112 (1993) 5. Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another (2003) UKHL 37 6. Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595 7. R (on the application of Beer) v Hampshire Farmers Market Ltd [2003] EWCA Civ 1056 [2004] 1 WLR 233 CA. 8. R (on the application of A and others) v Partnerships in Care Ltd [2002] 1 WLR 2610 9. R (on the Application of Heather) v Leonard Cheshire Foundation [2002] 2 All ER 936 10. The Human Rights Act – Changing Lives, retrieved 26 January 2008 from http://www.bihr.org/downloads/bihr_hra_changing_lives.pdf 11. YL v Birmingham City Council and others (2007) UKHL 27. Read More