Authored By: Afrah Jinnah
Middlesex University Dubai
Human rights are fundamental principles that protect individuals’ freedoms and dignity, forming the cornerstone of democratic governance.1 The Human Rights Act 1998 (HRA) incorporates the European Convention on Human Rights (ECHR) into UK law, providing individuals with a domestic mechanism to enforce their rights.23 Section 6(1) of the HRA is central to this framework, declaring it unlawful for public authorities to act in a way that is incompatible with the Convention rights.4 This provision imposes a legal duty on the public bodies to ensure their actions comply with human rights obligations, reshaping public decision making processes and fostering accountability at all levels of governance.5 Even so, it must be considered that judicial interpretations of the HRA have often undermined its effectiveness, particularly in the cases involving hybrid authorities and privatised services.6 This essay critically examines how Section 6(1) of the Human Rights Act 1998 has reshaped the public authority accountability in the UK. While it has strengthened rights protection within traditional public bodies, its transformative potential has been undermined by restrictive judicial interpretations, particularly in cases involving hybrid entities and privatisation. The essay evaluates legal accountability mechanisms, operational impacts on public authorities, and judicial challenges to argue that courts must adopt a functional approach in order to fully realize Parliament’s intent.
Section 6(1) of the Human Rights Act 1998 applies only to ‘public authorities’, a term defined under Section 6(3)(b) as including bodies performing functions of a public nature.7 The distinction between “pure” public authorities, such as government departments and local councils, and “hybrid” authorities, which perform both public and private functions, has been central to judicial interpretation.8In the case of Poplar Housing and Regeneration Community Association Ltd v Donoghue [2001], the Court of Appeal held that a housing association was a public authority due to its close relationship with the local council and its role in fulfilling statutory obligations.9 However, in the case of YL v Birmingham City Council [2007], the House of Lords adopted a narrower approach, ruling that a privately-run care home providing state funded care was not performing a public function.10 Judicial decisions have tended to focus on formalistic criteria such as the statutory underpinning and the institutional ties rather than the substantive nature or purpose of the service.11 This approach has been criticized for undermining Parliament’s intent to ensure comprehensive rights protection under the HRA, particularly in an era of increasing privatisation where essential services are outsourced to private entities.12 Therefore, it becomes evident that by limiting the scope of ‘public authority’, courts have created accountability gaps for hybrid bodies, restricting individuals’ ability to enforce their Convention rights.
The section 6(1) of the Human Rights Act 1998 has reshaped the operational practices of public authorities by embedding human rights considerations into their decision-making processes.13 Public bodies are required to ensure that their actions comply with Convention rights, fostering a culture where human rights impact assessments and staff training programs have become integral to public administration.14 For instance, local authorities must consider Article 8 of the ECHR (right to private and family life) when allocating social housing or handling eviction cases.15 Following this line of reasoning, policing practices have been influenced by Section 6(1), with law enforcement agencies required to balance public safety with respect for individual rights under Article 5 (right to liberty and security).16 In the case of R (Razgar) v Secretary of State for the Home Department [2004], the House of Lords emphasized that any interference with an individual’s private life must be proportionate to a legitimate aim, setting a precedent for how public authorities should balance competing interests.17 In contrast to this seemingly positive development, it must be considered that restrictive judicial interpretations of Section 6(3)(b) of HRA have limited accountability for hybrid entities performing public functions.18 This gap undermines Parliament’s intent to ensure comprehensive rights protection across all entities delivering essential services on behalf of public authorities.19 While Section 6(1) has transformed traditional public bodies, its operational impact remains limited by judicial reluctance to extend its reach to hybrid entities.
Judicial interpretations of ‘public authority’ under Section 6(1) of the Human Rights Act 1998 have often been criticized for relying on formalistic criteria rather than focusing on substantive rights protection, which undermines Parliament’s intent to ensure comprehensive accountability.20 In the case of YL v Birmingham City Council, the House of Lords ruled that a privately-run care home providing state-funded care was not a public authority under section 6(1), emphasizing the contractual nature of the service rather than its public purpose or social importance.21 This judicial approach ultimately resulted in a situation where the individuals, particularly those belonging to vulnerable or marginalised groups, were deprived of any effective legal remedy when their human rights were breached.22 By contrast, Lord Bingham argued that care homes delivering state-funded services should be considered public authorities due to their essential role in fulfilling governmental obligations.23 Similarly, in the case of Aston Cantlow v Wallbank, the House of Lords highlighted that determining whether a body is a public authority depends on the function being performed rather than the entity’s institutional structure, a perspective that aligns more closely with Parliament’s intent under Section 6(1).24 Proportionality has also emerged as an important principle in assessing public authority actions; in the case of Bank Mellat v HM Treasury, balancing individual rights against legitimate state interests demonstrated how courts could adopt a more nuanced approach toward accountability gaps created by privatisation and outsourcing. Critics argue that adopting a consistent functional test would address these gaps and better safeguard human rights.25 Judicial decisions have also been shaped by the “rights-restriction rule,” which prevents public authorities from claiming Convention rights under the HRA.26 This distinction reflects the obligation of public authorities to secure rights rather than enjoy them, but it has been criticized for limiting their ability to defend statutory powers and responsibilities in disputes with other state entities.27 A more functional approach, focusing on the nature and purpose of services rather than contractual arrangements, would better align with Parliament’s intent to safeguard human rights comprehensively under Section 6(1).28
The privatisation of public services has created significant challenges in applying Section 6(1) of the Human Rights Act 1998.29 Hybrid entities performing public functions often fall outside the scope of ‘public authority,’ leaving individuals without effective remedies for human rights violations, a concern particularly evident in sectors such as healthcare and housing where private providers dominate service delivery models traditionally managed by local councils or government agencies.30 This issue is particularly concerning in sectors like healthcare, housing, and social care, where private entities increasingly deliver services traditionally provided by public authorities.31 In the case of YL v Birmingham City Council, the House of Lords ruled that a privately-run care home providing state-funded care was not a public authority under Section 6(1), prioritising the contractual nature of the service over its public purpose.32 This decision highlighted a judicial reluctance to extend accountability to privatised entities, despite their role in delivering essential services.33 Conversely, in the case of R (Weaver) v London and Quadrant Housing Trust [2008], a housing trust managing social housing was deemed a public authority due to its statutory underpinning.34 These inconsistent rulings have fragmented rights protection, allowing privatisation to dilute accountability under the human rights act.35 Critics argue that courts should adopt a functional approach, focusing on both the nature and purpose of services rather than contractual arrangements alone in order to align more closely with Parliament’s intent to safeguard human rights comprehensively.36 Furthermore, it has been highlighted that privatisation creates systemic gaps in accountability, as public authorities can outsource their responsibilities to private entities without ensuring compliance with human rights obligations.37 This undermines the transformative potential of Section 6(1), which was intended to provide comprehensive protection against human rights violations across all entities performing public functions.38
In conclusion, Section 6(1) of the Human Rights Act 1998 has played a pivotal role in embedding human rights considerations into the operations and decision making processes undertaken by public authorities while providing individuals with an effective domestic mechanism through which they can enforce their fundamental rights against violations caused by governmental actions or omissions.39 However, its effectiveness has been significantly undermined by restrictive judicial interpretations of ‘public authority,’ particularly in cases involving hybrid entities and privatised services.40 Judicial reliance on formalistic criteria, such as contractual arrangements and institutional ties, has created accountability gaps, leaving vulnerable individuals without remedies for human rights breaches.41 While decisions in Poplar Housing42 and Weaver43 demonstrate judicial willingness to hold certain hybrid bodies accountable, the judgement in the case of YL v Birmingham City Council44 exposes a contrasting judicial hesitance that allows privatisation to dilute accountability. These rulings conflict with Parliament’s intent to ensure comprehensive human rights protection across all entities performing public functions. To fully realise the transformative potential of Section 6(1) of HRA, courts must adopt a functional approach that prioritizes the nature and purpose of services over contractual or institutional frameworks, ensuring that all entities delivering public functions are held accountable for upholding the Convention rights.
Bibliography
Primary Sources
Table of Cases
Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2003] UKHL 37
Bank Mellat v HM Treasury (No 2) [2013] UKSC 39
R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27 R (Weaver) v London and Quadrant Housing Trust [2008] EWHC 2878 (Admin) YL v Birmingham City Council [2007] 3 WLR 112 (HL)
Table of Legislation
European Convention on Human Rights
Human Rights Act 1998
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Books
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Amos M, ‘Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer?’[2009] 72 MLR
Davis H, ‘Public Authorities as “Victims” under the Human Rights Act’ (2005) 64(2) CLJ
‘Defining a Public Body: When Does Section 6 of the Human Rights Act 1998 Apply?’ (2016) 5 OJ Law Religion 1
1 A.W. Bradley, K.D Ewing & C.J.S. Knight, Constitutional and Administrative Law (18th edn, Pearson 2022).
2 Human Rights Act 1998 (HRA 1998), s 1 and s 6(1).
3 European Convention on Human Rights (ECHR).
4 HRA 1998, s 6(1).
5 Merris Amos, ‘Problems with the Human Rights Act 1998 and How to Remedy Them: Is a Bill of Rights the Answer?’ [2009] 72 MLR 883.
6ibid.
7 HRA 1998, s 6(1) and s 6(3)(b).
8 Michael Doherty & Noel McGuirk, Public Law (3rd edn, Routledge 2022).
9 Popular Housing and Regeneration Community Association Ltd v Donoghue [2002] QB 48 (CA).
10YL v Birmingham City Council [2007] 3 WLR 112 (HL).
11 Mark Elliott & Robert Thomas, Public Law (5th edn, OUP 2024).
12 Amos (n 4).
13 HRA 1998, s 6(1).
14 Doherty & McGuirk (n 8).
15 ECHR, art 8.
16 ibid.
17 R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27.
18‘Defining a Public Body: When Does Section 6 of the Human Rights Act 1998 Apply?’ (2016) 5 Ox. J Law Religion.
19 ibid.
20 Ibid.
21 YL (n 10).
22 Elliott & Thomas (n 11).
23 YL (n 10).
24 Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank[2003] UKHL 37.
25 Bank Mellat v HM Treasury (No 2)[2013] UKSC 39.
26 Howard Davis, ‘Public Authorities as “Victims” under the Human Rights Act’ (2005) 64(2) CLJ 315.
27 ibid.
28 Doherty & McGuirk (n 8).
29 HRA 1998, s 6(1).
30 Abbas Mithani, Mithani: Directors’ Disqualification (LexisNexis, looseleaf, Division VIII ch 1 s 4).
31 Doherty & McGuirk (n 8).
32 YL (n 10).
33 Elliott & Thomas (n 11).
34 R (Weaver) v London and Quadrant Housing Trust [2008] EWHC 2878 (Admin).
35 Doherty & McGuirk (n 8).
36 Mithani (n 30) Division VIII ch 1 s 4 .
37‘Defining a Public Body’ (n 18).
38 Doherty & McGuirk (n 8).
39 HRA 1998, s 6(1).
40 ibid s 6(3)(b).
41‘Defining a Public Body’ (n 18).
42 Poplar Housing (n 9).
43 Weaver (n 34).
44 YL (n 10).
