Regarding statutory interpretation, at first, it seemed the courts were steering away from the objectives of the HRA in the judgement of R v A. However the subsequent cases illustrate that the courts are now heading in the right direction, assisting the will of Parliament and the objectives of the HRA.
Section 6 of the HRA is a key provision, and in order for the courts to help the HRA achieve its objectives, section 6 needs to be very effective. Section 6 makes it unlawful for ‘public-authorities’ to act in a manner which is inconsistent with the convention rights. Section 6 tells us that a public authority includes: ‘core’ public bodies, for example the courts, and ‘functional’ bodies which are private bodies exercising a function of a public nature. Klug comments on the importance of the meaning of a public authority: “The meaning of a ‘public authority’ under the HRA was always going to be crucial to the success of the protection offered by the Act.” Clayton agrees with this comment. R v Partnerships in Care saw the courts use a test for determining a public authority, the judgement has been criticised. The case involved a private hospital moving a patient from a specialist ward to a general ward; the patient argued her article 3 and 8 rights were in violation. The court reached the conclusion that the private hospital was a public authority, the reason being the hospital was exercising a function of a public nature. The court stated that the decision to change the nature of the ward was an act of public nature. This test is wrong and a mistake by the courts, the consequence of this is that the courts have left vulnerable people without any human rights protection. This is clear evidence of the courts going against the objectives of the Human Rights Act.
An institutional test was used in Partnerships in Care, this is likely because of convenience. They were concentrating on the nature of the body in question by examining the legal relationships with the state, whether the body was exercising statutory powers and whether the body exercised coercive powers. The words of the HRA and judicial review are very similar. In a judicial review case, the court needs to decide whether the body is subject to judicial review, so in this case the courts asked whether the body was a public body. This is absolutely inappropriate and conflicts with the objective to make convention rights more accessible. Judicial review and the HRA have completely different motives, which should not be applied to one another. The courts were completely wrong and hindered the progress of the HRA objectives.
In order to successfully help the HRA achieve its objectives, the courts should have employed a functional test, where they focus on the nature of the function exercised by the body. Section 6 tells us that if you have a core public body, it has to act compatibly with convention rights in everything it does. Functional bodies are only bound when the function is public, and the particular act is public. Therefore, the key question is whether the body is bound, and that depends on the function it is performing.
In Aston Cantlow v Wallbank, the HoL expressed the functional test. However, there were two previous cases under section 6(3)(b that the HoL did not refer to in the judgement, thus the cases are still valid. This position was very unfortunate with adverse consequences; the HoL stated a new test, yet two prominent cases remain. The first of these cases was Poplar Housing v Donoghue. Initially, the CoA were satisfying the objectives of the HRA by stating that a generous approach should be taken to s6(3)(b). However, Lord Wolfe proceeded to do the complete opposite by arguing that if you have a private company performing a function which otherwise a public body would perform, that does not mean that the private body is exercising a function of a public nature. This is bizarre, not necessary, and against the HRA objectives. This approach was applied in R v Leonard Cheshire. Here, Lord Wolfe drew a distinction between the arrangement of care and the provision of care. The arrangement of care is of public nature, yet providing it is not. This resulted in the courts adopting a very narrow view which is contrary to the HRA objectives, Clements agrees: “In so deciding, the Court gave a highly restricted interpretation the meaning of ‘public authority’.”
Phenomenal criticism followed, which ultimately led to Parliament explicitly stating that the section 6(3)(b) intention was to make private bodies under a duty to respect human rights. Parliament intervened in YL v Birmingham City Council. Here, the Secretary of State for constitutional affairs joined the case. The central issue was whether a private company running a care home was a public authority under section 6. The case went up to the HoL where many influential bodies appeared, all arguing that the private company was a public authority. Unbelievably, the HoL held on a 3 to 2 majority that the private company was not exercising a function of a public nature. The 3 judges drew a distinction between arranging care and providing care, reaching the same conclusion as Lord Wolf in Leonard Cheshire. This does not make sense, how can it not be a function of a public nature not to care for vulnerable persons? This is clearly against the HRA objectives.
It is questionable why the courts are continuing with the wrong approach. It is likely that the courts are resistant to the idea that the private sector should be under a duty to respect Human Rights. Lord Scott in YL argued that the private body was carrying out its private business. Lord Mance concurred, arguing the private body had commercial motivation. The dissenting judges were adamant that the private company was providing a public function and that Leonard Cheshire was wrongly decided. Lord Bingham commented that it is clearly against the intentions of Parliament:
“If, as may be confidently asserted, Parliament intended the Act to offer substantial protection of the important values expressed in the articles of the Convention given domestic effect by the 1998 Act, it can scarcely have supposed that residents of privately run care homes ... would be unprotected”
Klug and Starmer conclude that the restrictive approach by the courts is having a detrimental effect on the objectives of the HRA: “There is every prospect that the Act can fulfil the government’s broad obligations under the ECHR. However an unduly restrictive approach to s.6 risks defeating, at least in part, this goal.”
Due to the resistance from the courts, Parliament implemented a provision that protects the vulnerable in private care homes, but there is no mention of other scenarios. At present, we will need to wait for future cases in order to see what the courts decide. It is unlikely they will change their approach, thus, with regards to section 6, the courts are clearly not helping the HRA achieve its objectives.
I have discussed the section 3 and 6 arguments that the courts are not helping the HRA achieve its objectives; I will now mention other worthy arguments. In “Winners and Losers”, Clements argues that the majority of vulnerable persons cannot protect their Human Rights through the courts because of their situation: “New rights may be open to all ... but in practice they prove more accommodating to the rich than the poor.” Bringing Rights Home told us that the HRA would “nurture a culture of understanding of rights and responsibilities at all levels in our society.” Clements has proved that the courts are not helping the HRA achieve this objective with regards to vulnerable people.
Costigan and Thomas carried out research which established that high street solicitors are not interested in the HRA and that it has had a limited impact on the courts: “It comes up occasionally, but in the criminal courts, certainly locally, it doesn’t seem to be a live issue.” The fact that the lawyers are not very aware of the HRA and that it is not having an impact on the courts illustrates that the courts are not helping the HRA objectives.
The HRA was enacted to ‘bring rights home’, by making convention rights more accessible to UK citizens. The courts have a duty to help the HRA achieve its objectives. With human rights cases on the increase, the courts attention is paramount. The use of section 3 by the courts was initially worrying in cases such as R v A, however, subsequent case law illustrates the courts are now on track and assisting the HRA in achieving its objectives. The need to determine a public authority in Section 6 has caused massive criticism. In Partnerships in Care, the courts used the wrong test to determine a public authority, a fundamental mistake and completely against the HRA objectives. Subsequent case law showed promise for the right test, however this was short lived. In Y v L the courts were expected to change their ways; however because of a resistance to make private bodies bound by the HRA, they resorted to the previous case law, again completely against the HRA objectives. The HRA is not very accessible to vulnerable persons, high street solicitors have very little awareness of the HRA, and the courts tend to avoid the HRA; all of which are not constructive for the progress of the HRA. Unfortunately, all of this evidence shows us that the courts are doing very little in assisting the HRA in achieving its objectives. Only time will tell if the rights are actually brought home.
Word Count: 2,601
Bibliography
Books
Jowell, Cooper, “Delivering Rights: How the Human Rights Act is Working”, (2003 Hart Publishing)
Stone, Rickard, “Textbook on Civil Liberties & Human Rights”(8th ed., 2010 OUP)
Articles
Bradley, “Judicial independence under attack” (2003) P.L. 397
Clayton, “Judicial deference and ‘democratic dialogue’: the legitimacy of judicial intervention under the Human Rights Act 1998” (2004) PL 33
Clayton, “The Human Rights Act six years on: where are we now?” (2007) EHRLR 11
Clements, Luke: “Winners and Losers”, JLS, 32 2005
Costigan & Thomas, “The Human Rights Act: A View from Below” Journal of Law and Society, The Human Rights Act: a Success Story? (2005) 32(1) JLS
Nicol, Danny, “Statutory Interpretation and Human Rights after Anderson”, PL 2004
Fredman, “From deference to democracy: the role of equality under the Human Rights Act “1998 (2006) 122 LQR 53
Kavanagh, “Unlocking the Human Rights Act: the ‘radical approach’ to section 3(1) revisited” (2005) 3 EHRLR 259
Klug & Starmer, “Standing Back from the Human Rights Act: How Effective is it Five Years On?” [2005] PL 716
Lester, “The utility of the Human Rights Act: a reply to Keith Ewing” [2005] P.L. 249
Sedley, Steven: “The Rocks or the Open Sea: Where is the Human Rights Act Heading?” JLS, 32, 1, 2005
Steyn, “Deference: A Tangled Story” (2005) PL 346
Other Materials
Bringing Rights Home: Labour’s plans to incorporate the ECHR into UK Law (Labour Party consultation document, 1996)
Joint Committee on Human Rights, Seventh Report “The Meaning of Public Authority under the Human Rights Act” HL (2002-03) 39, HC (2002-03) 382
The Times: “Number of court cases involving Human Rights Act rises by a third” – taken from
Lord Steyn, “Deference: a tangled story” , (2005) PL 346
Particularly in relation to asylum claims
A.W. Bradley, “Judicial independence under attack” (2003) P.L. 397
European Convention on Human Rights
Bringing Rights Home: Labour’s plans to Incorporate the ECHR into UK Law (Labour Party consultation document, 1996)
Ibid., p.11:
“To improve awareness of human rights issues throughout our society.”
See n.4 above, p.8:
“To enable individuals to use the UK courts to prevent and remedy the misuse of public power.”
Human Rights Act 1998 Section 3
Human Rights Act 1998 Section 6
Lord Woolf, [2001] EWCA Civ 595
Human Rights Act 1998 Section 4
Human Rights Act 1998 Section 3
Human Rights Act 1998 section 3
Section 41 Youth Justice and Criminal Evidence Act 1999
Human Rights Act 1998 Section 3
D. Rose and C. Weir, “Interpretation and Incompatibility: Striking the Balance” in J. Jowell and J. Cooper, eds., Delivering Rights (Hart Publishing, Oxford, 2003), p.46 states:
“the most radical example so far of the use of section 3”
Human Rights Act 1998 section 4
Kavanagh, “Unlocking the Human Rights Act: the ‘radical approach’ to section 3(1) revisited” (2005) 3 EHRLR 259
C. Gearty, “Revisiting Section 3(1) of the Human Rights Act” [2003] 119 L.Q.R. 551 at 552.
Re S (Children: care plan) [2002] 2 All ER 192
Re S (Children: care plan) [2002] 2 All ER 192 at [10]
Human Rights Act 1998 Section 3
Ghaidan v Godin-Mendoza [2004] 2 AC 557
Ghaidan v Godin-Mendoza [2004] 2 AC 557 at [33]
Re S (Children: care plan) [2002] 2 All ER 192
A. Lester, “The utility of the Human Rights Act: a reply to Keith Ewing” [2005] P.L. 249 at 258
Human Rights Act 1998 Section 3
Human Rights Act 1998 Section 6
Human Rights Act 1998 Section 6(3)(a)
Francesca Klug, “Standing back from the Human Rights Act: How effective is it five years on?” [2005] PL
Richard Clayton, “The Human Rights Act six years on: where are we now?” (2007) EHRLR:
“The scope of the HRA is crucially dependant on the meaning to be given to the phrase ‘public authority’.”
R (on the application of A) v Partnerships in Care Ltd [2002] 1 WLR 2610
Namely, the provision of care to people who had been detained under the Mental Health Act.
Human Rights Act 1998 Section 4
Human Rights Act 1998: Section 6
Human Rights Act 1998: Section 6(5)
Aston Cantlow Parochial Church Council v Wallbank [2003] 3 All ER 1213
Human Rights Act 1998 Section (6)(3)(b)
Poplar Housing v Donoghue [2001] 4 All ER 604
R (on the application of Heather & ors) v Leonard Cheshire Foundation [2002] 2 All ER 936
Joint Committee on Human Rights, Seventh Report The Meaning of Public Authority under the Human Rights Act HL (2002-03) 39, HC (2002-03) 382: The protection offered by the HRA should be comprehensive.
Luke Clements, Winners and Losers, JLS, 32 2005 p49
YL v Birmingham City Council [2007] 2 WLR 1097 (CA); [2007] 3 WLR 112 (HL)
Human Rights Act 1998 Section 6
Including: Secretary of State of constitutional affairs; Civil rights groups; British Institute of Human Rights; Help the Aged; Age Concern England
Lord Bingham and Baroness Hale
YL v Birmingham City Council [2007] 2 WLR 1097 (CA); [2007] 3 WLR 112 (HL) at 19
Klug and Starmer, Standing back from the Human Rights Act: how effective is it five years on? PL (2005) p728
The Health and Social Care Act 2008, section 145
There were encouraging comments from LJ Elias in R (on the application of Weaver) v London & Quadrant Housing Trust (2010) 1 WLR 363, however, the courts are still no closer in applying the right test.
Human Rights Act 1998 Section 6
Luke Clements, “Winners and Losers”, Journal of Law and Society, The Human Rights Act: a Success Story? (2005) 32(1) JLS
Labour Party, Bringing Rights Home (1996)
, Costigan & Thomas, “The Human Rights Act: A View from Below” Journal of Law and Society, The Human Rights Act: a Success Story? (2005) 32(1) JLS
Anonymous Solicitor, Costigan & Thomas, “The Human Rights Act: A View from Below” Journal of Law and Society, The Human Rights Act: a Success Story? (2005) 32(1) JLS, pp 57
Also argued in: Human Right: Improving public service delivery (Audit Commission, 2003) para.2:
“In many local authorities the Act has not left the desk of the lawyers.”
Bringing Rights Home: Labour’s plans to Incorporate the ECHR into UK Law (Labour Party consultation document, 1996)
The Times: “Number of court cases involving Human Rights Act rises by a third” – taken from on 27/11/2010
Human Rights Act 1998 Section 3
Human Rights Act 1998 Section 6
R (on the application of A) v Partnerships in Care Ltd [2002] 1 WLR 2610
Poplar Housing v Donoghue [2001] 4 All ER 604; R (on the application of Heather & ors) v Leonard Cheshire Foundation [2002] 2 All ER 936
YL v Birmingham City Council [2007] 2 WLR 1097 (CA); [2007] 3 WLR 112 (HL)
Luke Clements, “Winners and Losers”, Journal of Law and Society, The Human Rights Act: a Success Story? (2005) 32(1) JLS
Costigan & Thomas, “The Human Rights Act: A View from Below” Journal of Law and Society, The Human Rights Act: a Success Story? (2005) 32(1) JLS