Section 6 HRA: Public Authorities

Introduction

Section 6 of the Human Rights Act 1998 (HRA) establishes a fundamental requirement for public authorities within the United Kingdom to act compatibly with the rights enshrined in the European Convention on Human Rights (ECHR). This statutory provision mandates that any action by a public authority must not contravene a person's Convention rights, unless a specific piece of legislation dictates otherwise. This obligation applies to both direct actions and omissions by public bodies, reflecting a comprehensive application of human rights law in the public sphere. The core technical principle of section 6 resides in its broad definition of "public authority," which includes a wide range of entities performing public functions. Key requirements encompass the proactive integration of ECHR principles into administrative and judicial decision-making processes. This creates a framework designed to protect individual liberties and ensure accountability within the UK’s public sector. The definition of public authority is, however, not without its difficulties, as will be discussed in subsequent sections.

Defining 'Public Authority' Under Section 6 HRA

The ambit of Section 6 HRA hinges on the term "public authority." The Act does not provide an exhaustive list, but a two-part definition has developed through case law. This definition covers bodies which:

1. Are core public authorities: These are bodies of a governmental nature, such as government departments, local authorities, the police, and the courts. These always fall under the scope of the HRA.
2. Are hybrid public authorities: These are private bodies that perform public functions. This aspect of the definition has given rise to some complex case law.

The approach taken by the courts is often a pragmatic one; where the exercise is of a public function, the court will look towards whether the function is of a public nature. In Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37 , the House of Lords established that a parochial church council, even though technically a private body, was not a public authority when it was exercising its rights to enforce a private debt, rather than public function. The crucial element is the type of function, rather than the body itself, which makes the concept of hybrid public bodies more elusive. This contrasts with core public bodies which are always considered public authorities.

The definition has been tested in various contexts, such as:

• Private Care Homes: In YL v Birmingham City Council [2007] UKHL 27, the House of Lords determined that a private care home providing services on behalf of a local authority was not itself a public authority, as it was performing private functions, even though it was being contracted by a local council. This decision is seen as a narrow interpretation of section 6 and has been widely criticised. However, it established that private bodies acting on behalf of a public authority, does not always equate to them acting as a public body.
• Private Schools: In R (Williamson) v Secretary of State for Education [2005] UKHL 15, the House of Lords ruled that private schools exercising a public function by providing education were performing these functions in a private manner, meaning they are not considered public authorities.
• Religious Organisations: A religious organization's internal disciplinary proceedings are not usually deemed to be a public function. However, if these religious organisations are involved in providing public services such as education or healthcare, then they may be considered a hybrid public authority when performing these functions.

These examples demonstrate that the determination of whether a body is a public authority depends significantly on the specific nature of the functions it is performing, which is often a highly fact sensitive assessment.

The Scope of Section 6 Obligations

Section 6 HRA imposes an obligation that public authorities must act in a manner compatible with Convention rights. This obligation extends to various aspects of a public body’s operation:

• Policy and Decision-making: Public authorities must ensure their policies and decisions are consistent with Convention rights. For example, a local council must consider residents' rights to privacy and family life when implementing housing policy.
• Service Delivery: When providing public services, public authorities must do so without violating ECHR rights. This might involve ensuring access to healthcare is not discriminatory or that education policies respect freedom of religion.
• Procedural Fairness: Public authorities must adhere to fair procedures, especially those that affect individuals' rights. For instance, planning authorities must conduct fair hearings. This may require a public body to take a more proactive role in assisting vulnerable people (including with the presentation of their case)
• Legislative Interpretation: Section 3 of HRA further requires that courts must interpret legislation in a manner which is compatible with the ECHR as far as it is possible to do so, which further strengthens the role of Section 6 of the HRA by applying it even in the event that a statutory basis is relied upon for their action.

A failure to comply with these obligations may result in a breach of the HRA. Importantly, Section 6(2) outlines that a public authority does not act unlawfully if a piece of legislation means that it cannot act compatibly with the ECHR. This provision attempts to ensure that the will of Parliament is not overruled by the judiciary by way of the HRA, meaning that it does not overrule the separation of powers doctrine.

Practical Application of Section 6

The impact of Section 6 HRA can be seen in various legal contexts. One area in which section 6 has been of great practical importance is in the area of Article 8 of the ECHR, concerning the right to family life, as is shown in various case law including Ghaidan v Godin-Mendoza [2004] UKHL 30 , where a homosexual partner was able to rely on Article 8 to secure rights of occupation. Other practical applications of section 6 include the following:

• Immigration and Asylum: Public authorities must process applications with due regard to Article 8 (right to family life), ensuring, as a specific example, that deportation does not unjustifiably separate families or place people at risk of mistreatment.
• Healthcare: Decisions regarding medical treatment, particularly when affecting a person's right to life or autonomy, must be compatible with ECHR principles.
• Policing: Police powers, such as stop and search, must be exercised in compliance with ECHR principles, ensuring they are proportionate, non-discriminatory, and respect privacy rights. For example, whilst a police power to detain may be compliant with the HRA, a long detainment without any justification may breach Article 5 of the ECHR, which guarantees the right to liberty and security.
• Education: Schools must respect students' rights to freedom of thought, conscience, and religion, and must treat all students with dignity. The case of Campbell & Cosans v United Kingdom (1982) 4 EHRR 293 provides an example of the use of human rights laws by parents in the context of their children's education.

Section 6 actions are often brought under judicial review in the UK’s administrative court system. However, it is also relevant to legal actions between individuals which also involve statutory considerations, making the application of section 6 particularly wide.

Challenges and Criticisms

Despite its importance, Section 6 HRA faces some challenges and criticisms:

• Ambiguity in 'Public Function': The concept of 'public function' remains open to interpretation, creating uncertainty for organisations operating in the private sector. As was discussed previously, the concept of a hybrid public authority is elusive, and can lead to a lack of clarity when organisations are deciding if they may be caught by its remit.
• Judicial Interpretation: Courts are sometimes accused of taking either a too expansive or a too narrow view of the obligations placed on public authorities. Depending on the normative beliefs of the judiciary, this may lead to inconsistency.
• Balancing Rights: It is not always simple to balance competing rights, such as the right to privacy and the right to freedom of expression. Where conflicts exist between human rights it can be difficult to apply a universally acceptable assessment of the rights.
• Political Sensitivity: Some actions, such as those relating to national security or immigration, are seen as highly sensitive and subject to political pressures, which may influence a court’s interpretation of public obligations.
• Resource Constraints: Public bodies, particularly local authorities, have argued that human rights obligations may conflict with limitations on resources that they face. As such, a claim in human rights law may be used as a convenient vehicle to argue for more funding.

These issues highlight the ongoing need for further legal clarification and consistent application of section 6 within diverse situations.

Conclusion

Section 6 of the Human Rights Act 1998 is a cornerstone of human rights law within the UK, imposing an obligation on public authorities to act compatibly with the ECHR. This statutory provision has had a demonstrable impact on public bodies’ decision-making and actions, ensuring greater regard for individual rights. The scope and application of this section continue to develop, leading to debate about the legal framework of public bodies, and their obligations. However, the core requirement that public bodies should not violate human rights as recognised under the ECHR, remains a core tenet of UK law.