Section 6 HRA - These are notes from the Exeter School of Law Lectures - the lecture was delivered PDF

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These are notes from the Exeter School of Law Lectures - the lecture was delivered by the head of C&A Law. There are individual case breakdowns, easily accessible vocabulary and concepts, and some key theories in law. There are also some wider concepts that are valuable to consider if reaching for a...

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Section 6 HRA (1) It is unlawful for a public authority to act in a way which is incompatible with a convention right. […] (3) In this section "public authority" includes (a) a court or tribunal, and (b) any person certain of whose functions are functions of public nature, But does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

Aston Cantlow and Wilmcote The church as a functional public body and should be governed by the HRA. Let's think about the Church of England's functions… • Officiating marriages - public • Conducting burials - public • Keeping registers - public • Running state-funded faith schools - public • Offering a place of worship - private • Engaging in contracts - private • Enforcing property rights - private

Case study - Contracting out State started to have greater responsibility to its citizens (welfare state) This is distinctly modern concern. • From 1910 onwards, the state expanded into welfare & social security, housing, health NHS), industry. • Thatcher privatised parts of the state, creating a system of private enterprise with public regulation. • Today, what remains of the state (health, social housing, the administration of justice?) is increasingly being contracted out to private providers: Serco, G4S, Atos, Capita. Thatcher 1979 wanted to privatise the state's functions… and this happened. Private functions needed public funding… emerged statutory bodies of regulation. From Tony Blair onwards, there has been a demand to reduce costs. Reduction of the NHS through Blair. Before Thatcher, there were 5 million social houses. After her, there were only 1 million. Parliament confers a specific legal duty on a public authority • That public authority seeks to outsource the function to a private provider. • That private provider makes a decision engaging an individual's Convention rights' • The question arises as to whether the private provider is a functional public authority under s.6(3) HRA.

Poplar Housing v. Donoghue [2001] EWCA Civ 595

Donoghue was provided with temporary non-secure tenancy by a local authority, pending determination of whether she was intentionally homeless. The property was transferred to a housing association, with a distinct legal identity to the local authority. The housing association served notice to quit, and pursued a possession order in the courts. Donoghue sought to argue that her Article 8 right ECHR were engaged, and sought an adjournment to the possession proceedings so that the point could be argued. The trial judge refused the adjournment on the basis that, if her Article 8 rights were engaged, there would be no infringement of that right. She appealed to CA. The CA agreed on the point that no Article 8 rights were violated. But crucially, the CA did rule that Poplar Housing was a public authority under s.6(3) having regard to: • The statutory responsibilities it was exercising on behalf of the local authority; • The closeness between the local authority and the housing authority (the former created the latter). HRA as a sword and a shield.

R (Heather) v. Leonard Cheshire Foundation [2002] EWCA Civ 366 The C's were long-stay residents of a care home run by Leonard Cheshire, and funded by the local authority or health authority as appropriate. LC sought to close the care home despite earlier assurances that residents would be able to stay there as long as they needed. The C's challenged the decision under the HRA, on the grounds that it would contravene with their Article 8 rights. The court had to first determine whether LC fell under s.6(3) as a functional public authority (or 'hybrid') The court said LC wasn't a functional public authority: • The Article 8 obligations of the local authority had not been fully contracted out to LC, so there was an insufficient conferral of public law function to LC. • Were the HRA obligations to be contracted out to LC, the C's would have a right to sue in contract for any Article 8 ECHR infringement.

Poplar Housing and Leonard Cheshire •

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A crucial difference between the cases seems to be that Poplar Housing was something of an alter ego of the housing authority - the housing authority set Poplar Housing up, and they shared many resources and facilities. LC was distinct, and this the 'core' local authority or health authority remained the amenable public body in the absence of the contracting out of liabilities. There are still questions of consistency here. Remember, s.6(3) is about function - not whether the identity was distinct.

YL v. Birmingham CC [2007] UKHL 27 The C was 84 years old, and required residential care under s.21 of the National Assistance Act 1948.

The care was provided by Southern Cross, a for-profit firm operating care homes for the benefit of public and private residents. The majority of the C's fees were met by the local authority. There was a disagreement between the C's relatives and the care home, so the home simply decided to terminate the care contract and remove C from the home. A clam was brought under the HRA, and the question for the court was whether Southern Cross was a functional public authority. By a 3-2 majority, (Bingham and Hale) SC was NOT a public authority for the purposes of s.6(3) HRA. • The HRA rights of the C against the local authority had not been contracted out to the care provider; • SC were a for-profit company, providing care principally for profit, albeit whilst also meeting a social need. Lord Mance (Majority in YL) The assistance being provided by the State is to put the C in a comparable position to the SC's private residents - i.e. the support is financial. To decide otherwise would be to give the state-funded residents more rights than the private residents, i.e. public law rights in addition to contractual rights (see [115]-[119]). Imagine: hypothetical care residents Person A: housed by the local authority in a local authority-run home. Person B: housed by Southern Cross, but funded by the local authority. Person C: housed by Southern Cross, and funded privately. Lord Mance does not want to place Person B in a stronger position than Person C: this would not be fair. Lord Bingham (dissenting in YL) "The greater the state's involvement in making payment for the function in question, the greater (other things being equal) the assumption of responsibility" (at[10]). "The intention of Parliament is that residential care should be provided, but the means of doing so is treated as, in itself, unimportant." (at [16]). Lady Hale (dissenting in YL) "This was a function performed for the A pursuant to statutory arrangements, at public expense and in the public interest. I have no doubt that Parliament intended that it be covered by section 6(3)(b). The CA was wrong to reach a different conclusion on indistinguishable facts in Leonard Cheshire." (at [73])

Section 145 Health and Social Care Act 2008 (1) A person (P) who provides accommodation, together with nursing or personal care, in a care home for an individual under arrangements made with P under the relevant statutory provisions is to be taken for the purposes of 6(3)(b) of section 6 of the HRA 1998 (c.42) (acts of public authorities) to be exercising a function of a public nature in doing so.

The Law after YL • •

s.145 reverses the effect of YL in the context of publicly funded care under the 1948 Act. But YL is still relevant and applicable to the general approach taken by the courts on this interpretation of functional public authorities under s.6(3) HRA.

R (Weaver) v. London & Quadrant Housing [2009] EWCA Civ 587 The C had most of their rent (but) payed by a local authority. The registered social landlord sought possession of the property when the rent fell into arrears. The C sought to rely on her Convention rights in contesting the possession order. The CA held that the landlord was a functional public authority. The CA had regard to: • The significant public financing of the accommodation; • The extent to which the landlord worked in close harmony with the core public authority (the local authority); • The fact that the landlord was bound by a regulatory framework for social housing. The CA further considered that: • Parliament had intended to confer public law rights on C's subjected to the decisions of hybrid public bodies; and • Perhaps the situation would be different were the landlord to enforce his private law rights to possession of the property where the rent was at market value. Elias LJ at [72]: "None of these factors taken in taken in isolation would suffice to make the functions of the provision of public functions, but I am satisfied that when considered cumulatively, they establish sufficient public flavour to bring the provision of social housing by this particular RSL within that concept. That is particularly so given that their Lordships have emphasised the need to give a broad and generous construction to the concept of a hybrid authority."

Who has rights? The UK is a country which has had considerable influence abroad, e.g.: • As a colonial power that continues to exercise supreme legislative authority over some territories • As a country with a recent history in armed conflict and 'humanitarian intervention' • As a country with an extensive network of diplomatic mission and embassies. R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs No.2 [2008] UKHL 61 • In 1971, a colony in the Indian Ocean called 'BIOT' was subject to a prerogative order requiring inhabitants of the Chagos Islands to vacate, to make way for a US military base. • In 2000, Bancoult successfully sought a court order from HC declaring the 1971 order to be ultra vires. • The Foreign Secretary 'accepted' the court's decision and announced a programme to allow the islanders to return should they wish to.

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In 2004, the Foreign Secretary changed his mind and a new prerogative order was made, preventing islanders from returning.

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In new judicial review proceedings, the HC declared the new order to be unlawful. The CA dismissed the Minister's appeal. The HL (by 3-2 majority) allowed the Minister's appeal, effectively reinstating the exclusion order, making it lawful.

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Lord Hoffman 'The Crown has no authority to transport anyone beyond the seas except by statutory authority… In a ceded colony, however, the Crown has plenary legislative authority. It can make or unmake the law of the land.' [44] 'the actions of the Crown in BIOT cannot infringe the provisions of the HRA 1998… ...So, they say, the HRA, when enacted, became part of the law of the territory. So be it. But the Act defines Convention rights as rights under the Convention as it has effect for the time being in relation to the UK. BIOT is not a part of the UK and the HRA, though it may be a part of the law of England, has no more relevance in BIOT than a local government statute for Birmingham.' [65] Lord Bingham (dissenting) '…the relationship between the citizen and the Crown is based on reciprocal duties of allegiance and protection and the duty of protection cannot ordinarily be discharged by removing and excluding the citizen from his homeland.' [70] Article 56 of ECHR allows EU states to choose which one of its overseas territories are subject to HRA 1998.

R (Al-Skeini) v. Defence Secretary [2007] UKHL 26 The C's were families of 6 deceased persons who were killed during the invasion of Iraq by British Forces. In the first 5 cases the deceased were shot by British troops. In the 6th case, the deceased had died whilst in custody - allegedly from brutality and torture by British troops They claimed, under the HRA, that Article 2 requires the state to either accept responsibility for the deaths, or establish, or establish an independent investigation into the deaths. The House of Lords ruled that the HRA could have extra-territorial effect, but only where the State's actors have 'effective control' such as to provide the full spectrum of rights. The 6th claimant, being under 'effective control' in a British-run prison, had met such a requirement - but not the other 5 claimants.

In the European Court of Human Rights R (Al-Skeini) v. United Kingdom [2011] 53 EHRR 18

The 5 unsuccessful C's sought a ruling from the ECtHR - and were successful. The ruling required the UK to undertake an appropriate independent investigation into the deaths. The C's were also awarded £15,000 for the distress caused by not investigating the deaths. The ECtHR noted in particular: • That there was a 'jurisdictional link' between UK and the territory in South-East Iraq, established by their presence as a security force. • That the UK (with the USA and others) removed a sovereign governing authority, and to prevent a 'legal vacuum' were to be treated as the de facto governing force in Iraq, which comes with it adherence to the Convention....