Section 6 of the HRA PDF

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Explains section 6 of the Human rights act. ...

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Public lecture- Section 6 HRA.        

Obligation placed on public authorities by the HRA was the other main way, alongside the interpretive duty, in which the HRA aimed to give effect to the convention rights. Understand the meaning of “public authority” as the scope of this term defines the boundaries of the state’s obligation to respect human rights. State shouldn’t be able to avoid obligations by agreeing to let another body exercise particular functions. Security in prisons, for example, is a function that has been privatised in the UK but this doesn’t take away the responsibility of the state to exercise coercive power. Under ECHR, the state includes public bodies. Public bodies are an extension of the state. Aim in HRA was to have an accord with the bodies for which the state would be held responsible, under the ECHR in Strasbourg. The way in which “public authority” is construed, is potentially wide in section 6. Allows the meaning to be broad. Section 6 duty is a new duty created by the HRA (like section 3 interpretative obligation and section 4)

Basic position 1) Unlawful for a public authority to act in a way which is incompatible with a convention right. 2) Primary Legislation Exception -(2) Subsection (1) does not apply if... Intricately worded. Basically an exception to the unlawfulness of actions, related to incompatible primary legislation. We know that incompatible primary legislation is not unlawful. Public authorities may derive their authority from primary legislation, if this is the case, it will not be unlawful for a public authority to act incompatibly with a convention right. It will not be unlawful if the public authority had no choice but to act in such a way e.g. primary legislative provision that instructs the home secretary to do something, the home secretary has no choice here. Even if the result would be incompatible with convention rights, the home secretary has to follow the primary legislation. 

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Where a public authority might rely or try to rely on section 6, it is important to firstly establish that there is an incompatibility with the convention rights. The legislation could not have been interpreted in a way that allowed it to be incompatible with the convention rights. If a public authority tries to rely on this exception in a claim that is made against it, it will only be able to do so if the court cannot find a compatible interpretation under section 3. Situations where it won’t be possible to find a compatible meaning are very rare. Therefore, section 6 exception is rare.

Exclusion of Parliament (3) Public authority does not include either House of Parliament or person exercising functions in connection with proceedings in parliament. -prevents individuals from challenging parliamentary proceedings.

(6) Member of Parliament cannot be challenged in court for saying something, doing something or proposing certain legislation that is arguably convention rights incompatible. e.g. a failure to make a remedial order. That means that you cannot challenge a MP on the basis that they have failed to remedy a convention rights incompatibility that is known to the parliament. This protects the parliament, the legislation, the proceedings, the members, who are not supposed to be subject to the duties of the HRA. Fits in to overall constitutional scheme in which the HRA was initially designed. Exclusion of parliament is in line with parliamentary privilege. A key one being the idea that parliament regulates its own affairs- what happens in parliament cannot be challenged. Parliament is its own authority. Court can’t supervise parliamentary proceedings. Functions of a public nature (3)(b) any person certain of whose functions are functions of a public nature. “Person” refers to those with legal personality: including companies and organisations. “Certain…nature” S6 only concerned with public bodies, not private bodies. This mirrors the scope of concern of the ECHR as a treaty which deals with relationship between individuals and the state. Important to determine who counts as a public authority. Private bodies simply don’t have the same direct obligations. This subsection referring to “certain functions” of “public nature” aims to encompass within the section 6 duty, bodies which may exercise both public and private duties. Doesn’t exclusively have to exercise public functions- certain functions have to be public in nature. Different kinds of public authorities are sometimes categorised as: -Core public authorities “pure” -Function ‘hybrid’ public authorities. Purely private bodies are not bound by the section 6 obligations. Core public authorities- all their functions considered as being of a public nature and so all of their actions fall within the scope of section 6. Examples; government departments, government ministers, local authorities, the army, the police, the emergency services. Hybrid public authorities are bound by the section 6 obligation in relation to functions they exercise that can be deemed public in nature. This is really important because the scope of this category in part determines the scope of section 6 duty. Public functions are often outsourced to private bodies, and the state shouldn’t be able to avoid these functions and avoid being accountable for these functions by outsourcing them to a private organisation. State should remain responsible but e.g. a private security firm who provides security at a prison but also provides security at public events, that firm cannot be held under the obligations of section 6 whilst carrying out the private functions. How to determine whether something is public or private -Hybrid bodies; must address the question- public or private? -Leading case YL v Birmingham City Council  HOL 2007.

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Question was whether this private care home could in these circumstances be considered as performing functions of a public nature. The care home was the decision to terminate an agreement which entitled the claimant to stay in the private care home. Claimant was 84-year-old woman, suffering from Alzheimer’s. Care home didn’t want to continue to provide her with care because they had some run-ins with the woman’s relatives. They alleged that the relatives had acted inappropriately and dint want the woman to reside there anymore. Family argued this would be incompatible with article 8 (right to home) by evicting her. Question was- is the private care home a public authority? Can a convention rights claim be breached? HOL held that the function in question was not public in nature. So, agreement that private care home could exercise functions of a public nature. No HR violation here because if the function is not public it cannot be challenged on the basis of HRA. Parliament then passed legislation to clarify that care homes (private) are essentially exercising public functions and clarify that they would be subject to section 6 duty under HRA. What is a function of a public nature? -How do we determine what makes a function “public” How does the court test this? -Not a simple test. Courts have said clearly that when interpreting this idea of public function, the objective is for a range of bodies for whom the state would be responsible before the Strasbourg court. -Take into account basically everything that can shed light on if a function should be considered as a public one. -All relevant factors should be weighed up. Scope of category of public authority can be quite wide. A lot of legal persons have the potential to fall within this category of exercising public functions all of the time or some of the time. Courts as public authorities -Public authority includes a court or tribunal. (3)(a) not difficult to know which bodies are courts and tribunals- in a sense this is significant in another way. Not concerned with interpretation, more about impact. Has significant consequences. Some have argued it is the most significant in the entire HRA. It means courts and tribunals must reach decisions in a way that is compatible with convention rights.  Has an impact on the development of the common law.  What does this mean for the relevance of the convention rights in cases where only private parties are involved?  Extending section 6 obligation to courts and tribunals.  Courts have to respect the convention rights and taken together it implies that the courts will have to develop the common law in a way that is compatible with convention rights.

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Not been many cases in which the courts have addressed this impact on the common law. (impact of section 6) One area that has been considered is privacy- courts worked with existing grounds of challenge and extended them what they were before HRA.

Courts as public authorities Article 8 being considered by courts and also article 10. Douglas v Hello! ‘breach of confidence’ (course of action under common law)  Deal with Okay! Magazine to allow them to publish photos of their wedding but photos selected by the couple. Photographer managed to get into this wedding, took photos and sold them to Hello! Magazine.  Right to respect for private life was taken into account by the court in this case.  They held that in considering what information should be protected as private, the COA said they were required by the HRA to adapt and develop the existing cause of action in such a way to give effect to freedom of expression and privacy. Example of courts taking into account convention rights in a decision that’s really based on the common law. They have to do this on their own initiative. Because as public authorities, the courts have to reach decisions in ways that are compatible with convention rights where there is a relevant cause of action.

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Campbell v MGN Naomi Campbell had been attending drug rehabilitation and was photographed coming out of one of these sessions. Her solicitors argued that the newspaper should not have published the photograph. They acknowledged that the newspaper was entitled to reveal that she had a drug problem, they took issue with the extent to which they revealed the information. Interference of privacy in terms of the detail and photograph which had been published. Guardian newspaper described this as the most important privacy case since the implementation of the HRA. HOL there was a balancing act between article 8 and article 10. HOL upheld Campbell’s claim and Lady Hale emphasised that the HRA doesn’t create any new cause of action between private persons but if there is a relevant cause of action applicable, the court as a public authority must act compatibly with both parties’ convention rights.

Cause of action is relevant and applicable; this area of the common law has shifted in a convention rights compatible way. Idea is that in terms of this development, the common law traditionally protected some forms of private life (confidential information where certain conditions were fulfilled) but this area has developed. Convention rights are being used/talked about in a case between private parties. This is why the inclusion of courts and tribunals as public authorities has been described as giving rise to a horizontal impact of the convention rights.

‘Horizontal effect’ – an effect on relationships between private individuals. Not the case that private individuals can claim that another private body has infringed on their convention rights. Not just vertical between private legal persons and the state but also between private legal persons. M Hunt (1998) the horizontal effect of the HRA. We know that when the parliament was drafting the HRA, it didn’t intend for it to be a ground of challenge directly between private legal persons. Parliament went to considerable lengths to carve out who would be subject to obligations placed on by public authorities. Parliament didn’t intend for the convention rights to only apply to private persons and the executive. Parliament decided to include courts and tribunals as public authorities, and like all public authorities they have to act compatibly with the convention rights. During the passage of the HR bill, an amendment was proposed to section 6 and the response from a minister was that “ we believe that it is right as a matter of principle….” Conclusion  

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Obligation on public authorities in section 6 is important. Main way directed to public authorities actions like state schools, NHS, armed forces etc. Or the courts themselves. Only limitation in terms of public authorities relates to parliament (Section 6 (2) exception) and also the other subsections within section 6 which excludes parliamentary proceedings from challenge. Essentially what the scope of public authority comes down to is how far does the state go? How do we determine the nature of the state? Should we understand the influence to go beyond that? E.g. the care home providing care, is this something the state should do? Or something a private body should do....