Public Authority and Human Rights Act 1998 - Assignment Example

Public ity and the Human Rights Act 1998 The Human Rights Act 1998 directs the domestic courts of the UK, regarding the manner, in which legislation is to be interpreted, so that it is in conformity with the precepts enjoined in the ECHR1. A very important facet of the Human Rights Act 1998 is the definition that it provides regarding a public authority2. On occasion, the UK authorities are not above infringing the rights of the public. Such individuals can initiate action against a public authority, under the auspices of the Human Rights Act 19983. Some of the entities that fall under the purview of this statute are the local authorities, courts, police officers, social services and the public sector4. Subsequent to the adoption of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in 19505; the United Kingdom enacted the Human Rights Act in 1998, in order to give further effect to the rights and freedoms guaranteed by the former6. A public authority is precluded by the Human Rights Act 1998, to discharge its functions in such a way that it contravenes the provisions of the ECHR7. There is a marked absence of a detailed description of what constitutes a public authority, in the Human Rights Act 1998. However, it does state that an entity, some of whose functions assume a public character, constitutes a public authority8. In YL v Birmingham City Council, their Lordships ruled that even though a private body’s was making available publicly funded residential care, it could not be construed that it was discharging the functions of a public body9. This decision was arrived on the basis of their interpretation of the Human Rights Act 199810. This is an issue that involves considerable controversy. Essentially, this question clarifies, whether an entity providing such care is required to act in accordance with this Act. The Human Rights Act 1998 goes on to state that in respect of a specific act, an entity cannot be deemed to be a public authority, merely on the basis of the provision of subsection 3(b) of the Human Rights Act 1998; if that particular act has a private nature11. Thus, we are provided with public authorities of two different genres, by the Human Rights Act 1998. The first of these comprises of the principal public authorities, which have to act, solely in accordance with the provisions of the ECHR. Some of the more outstanding examples of such public authorities are the police, local authorities and government departments. On the other hand, we have the second variety of public authority, which can be construed to be merely functional public authorities. Such entities are constrained to behave as a public authority, in accordance with the ECHR, only when discharging functions that are of a public nature. There have been two landmark decisions in this context, and these are detailed in the sequel. In Poplar Housing and Regeneration Community Association Ltd v Donoghue, the Court of Appeal took up an appeal that related to the provision of housing accommodation to Donoghue, who was deemed to be a homeless person12. The Tower Hamlets, a local authority, was duty bound, as per the provisions of the Housing Act 1996, to provide adequate housing to those who were homeless. However, this duty did not extend to persons who were intentionally homeless. Subsequently, this local authority transferred its interests, including the dwelling, in which Donoghue was resident, to the Poplar Housing and Regeneration Community Association Ltd13. The latter entity, on discovering that Donoghue had remained intentionally homeless, attempted to possess the property in which Donoghue was housed. The latter contested this move, contending that this was in contravention of Article 8 of the ECHR. The crux of the matter was whether the Association was discharging functions that were of a public nature, whilst providing the accommodation14. The Appellate Court rules that the nature of the Association, during the course of providing accommodation, was public in nature. All the same, the court ruled that the rights provided to Donoghue, under Article 8 of the ECHR had not been breached. The court opined that under the provisions of section 6(3)(b) of the Human Rights Act 1998, the Association had functioned as a public authority15. Specifically, it was indisputable that Donoghue had been a tenant of the Tower Hamlets, at the time of transfer of the property. Consequently, she was to be accorded the same treatment, subsequent to the transfer of property. Furthermore, the Poplar Housing and Regeneration Community Association Ltd, had been established by the Tower Hamlets16. In addition, its board members were members of the local authority; and the manner that the Association dealt with its tenants, was under the control of that authority. The engendering of this proximate nexus, betwixt the Association and the Local Authority served to preclude any qualms regarding the public nature of the Association’s activities17. R (Heather) v Leonard Cheshire Foundation dealt with the provision of residential care by the Leonard Cheshire Foundation, a charitable organisation, to Heather. The Surrey County Council, as required by the provisions of the National Assistance Act 1948, had contracted with the Foundation to make such housing provision18. Subsequently, the Foundation decided to discontinue this provision in the place where Heather was residing. A much harried Heather contested this decision, as being in breach of Article 8 of the ECHR. The task before the court was to ascertain, whether the Foundation was engaged in activities that could be classified as being public in nature19. In this case, the Court of Appeal concluded that Foundation was not discharging functions that could be categorised, as being public in nature, in the course of providing housing care to Heather. In particular, the court held that in instances where the authority, itself was making accommodation available, it could be deemed to providing a public function20. In addition, an authority that arrived at an arrangement with an organisation, like the Leonard Cheshire Foundation to provide accommodation, was to be held to be engaged in the discharge of a public function. Nevertheless, a charitable organisation, like the Leonard Cheshire Foundation, while providing accommodation to individuals specified by the authority, could not be held to be performing a public function21. The principal distinction between the decision in Poplar Housing and Regeneration Community Association Ltd v Donoghue, and R (Heather) v Leonard Cheshire Foundation was that in the former case, there had been an intimate relationship between the Surrey County Council and the Foundation. However, in respect of the Housing Association and Tower Hamlets, such relationship was conspicuous by its absence. These decisions have drawn considerable flak, from legal scholars. The chief objection is to the alteration of the nature of a function, if it is performed on a contractual basis. A function that is held to be public, when done by the same organisation, should continue to remain so; even on being performed by some contracted agency. The Joint Committee on Human Rights was of the opinion that the Appellate Court had applied the incorrect test. This committee was of the opinion that the Court should have applied a functional test, instead of an institutional test. It had committed this alleged blunder by according importance to the propinquity of a private body to a State owned institution22. In other words, the Court had preferred to assess the nature of the entity performing the function; rather than evaluating whether the function was public in nature. The criticism that this decision was in contravention of the intent of Parliament, was also levelled at this decision23. In Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank, the House of Lords recommended that a wider interpretation was to be accorded to the term public function24. There has been a suggestion from some quarters, regarding the public nature of a function that is performed by a private entity25. It states that a private body is performing a public function, only if that activity entails explicitly and legally authorised coercion or exercise of authority that would in the normal course of events be illegal for this private body to exercise26. Source http://www.justice.org.uk/images/pdfs/wherenowforpublicauthorities.pdf The European Court of Human Rights has clarified, via its case law that the ECHR imposed responsibilities cannot be circumvented by a country; by resorting to delegation to a private body. In addition, it is not possible to evade such responsibility by privatising the functions of the state. Moreover, section 6 (3)(b) of the Human Rights Act 1998, is to be interpreted in a manner that protects the rights bestowed upon individuals by the ECHR. In the absence of such protection, the United Kingdom will be deemed to have breached the duty imposed upon it by Article 1 of the ECHR27. Therefore, a limited definition of what constitutes a public authority can be moderated, only if the assigning authority is held accountable for the acts of these representatives. Nevertheless, accountability, under section 6 of the Human Rights Act 1998, is feasible; only if the public authority is suitably empowered to rectify the infringements of the ECHR, committed by the provider of the service. Bibliography Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank (2003) UKHL 37 Convention for the Protection of Human Rights and Fundamental Freedoms England and Wales Court of Appeal (Civil Division) Decisions. Retrieved from http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2001/595.html&query=Donoghue&method=all on 12 December 2009 Human Rights Act 1998 Human Rights (2008). Dictionary of Policing. Retrieved from http://www.credoreference.com/entry/willanpolicing/human_rights on 12 December 2009 Judgments - YL (by her litigation friend the Official Solicitor) (FC) (Appellant) v. Birmingham City Council and others (Respondents). Parliament UK. Retrieved from http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd070620/birm-1.htm on 12 December 2009. McGarry, John. "Functions of a public nature" under the Human Rights Act 1998: the decision of the House of Lords in YL v Birmingham City Council. Retrieved from http://webjcli.ncl.ac.uk/2007/issue5/mcgarry5.html on 12 December 2009 Memorandum from the British Humanist Association. 3 March 2004. Parliament UK. Retrieved from http://www.publications.parliament.uk/pa/jt200304/jtselect/jtrights/39/39we15.htm on 12 December 2009 National Assistance Act 1948 Online Resource Centre. Endicott: Administrative Law. Retrieved from http://www.oup.com/uk/orc/bin/9780199277285/01student/ch15/03cases/ on 12 December 2009 Poplar Housing. Human Rights & Public Law Update. Retrieved from http://www.1cor.com/1315/?form_1155.replyids=520 on 12 December 2009 Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001] EWCA Civ 595, (2002) QB 48 R (Heather) v Leonard Cheshire Foundation [2002] EWCA Civ 366, [2002] 2 All ER 936 Seventh Report of the Joint Committee on Human Rights, 2004; Ninth Report of the Joint Committee on Human Rights, 2007 Where now for “public authorities”? A Comment on YL v Birmingham City Council. Retrieved from http://www.justice.org.uk/images/pdfs/wherenowforpublicauthorities.pdf on 12 December 2009 YL v Birmingham City Council (2007) UKHL 27 Read More