Public authorities as “victims” under the human rights act

Cambridge Law Journal

Volumn 64, Issue 2, 2005, Pages 315-328

  Davis, Howard ^a  

^a BOURNEMOUTH UNIVERSITY   (United Kingdom)

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[No Author keywords available]

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EID: 84922936467     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197305006872     Document Type: Article

References (89)

1. E.g., S. Grosz, J. Beatson and P. Duffy, Human Rights: The 1998 Act and the European Convention (London 2000), chapter 4, 4.42–4.44
2. D. Oliver, “The Frontiers of the State: Public Authorities and Public Functions under the Human Rights Act” [2000] P.L. 476.
3. For a pre-Act discussion see D. Oliver, “The Underlying Values of Private and Public Law”, in M. Taggart (ed.), The Province of Administrative Law (Oxford 1997), ch. 11.
4. Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v. Wallbank and another [2003] UKHL 37
5. [2004] 1 A.C. 546, at [8] (hereinafter Aston Cantlow v. Wallbank).
6. R (Mayor of the City of Westminster) v. Mayor of London [2002] EWHC (Admin) 2440, [2003] B.L.G.R. 611, at [93]-[96]
7. R (Medway Council and others) v. Secretary of State for Transport [2002] EWHC (Admin) 2516, [2003] J.P.L. 583, at [20].
8. Grampian University Hospitals NHS Trust v. Procurator Fiscal [2004] H.R.L.R. 18; Appeal Court, High Court of Justiciary.
9. House of Lords, House of Commons Joint Committee on Human Rights, The Meaning of Public Authority under the Human Rights Act, Seventh Report of Session 2003–4, HL Paper 39, HC 382, para. [23].
10. Human Rights Act 1998 ss. 7(1) and 7(7); Article 34 ECHR.
11. Eckle v. Germany (1982) 5 E.H.R.R. 1, [66] (“… the person directly affected by the act or omission which is in issue…”).
12. On comparisons with “ordinary” judicial review see J. Miles, “Human Rights Standing under the Human Rights Act 1988: Theories of Rights Enforcement and the Nature of Public Law Adjudication” [2000] C.L.J. 133.
13. Grosz, Beatson, and Duffy, Human Rights, C.L.J., paras. [4.42]-[4.44].
14. E.g. R v. Ministry of Defence ex parte Smith [1996] Q.B. 517, 536 (CA).
15. R v. Secretary of State for Employment ex parte Equal Opportunities Commission [1995] 1 A.C. 1
16. cf R (Howard League) v. Secretary of State for the Home Department [2002] EWHC (Admin) 2497
17. [2003] 1 F.L.R. 484: declarations on the application of the Children Act to Youth Offender Institutions.
18. E.g. R v. Re Northern Ireland Human Rights Commission [2002] UKHL 25
19. [2002] H.R.L.R. 35.
20. See S. Hannett, “Third Party Intervention: In the Public Interest?” [2003] P.L. 128–150.
21. E.g. Zentralrat D.S.R.R. v. Germany (1997) 23 E.H.R.R. CD 209
22. A and others v. Denmark (1996) 22 E.H.R.R. 458.
23. See further: J. Miles, “Standing in a Multi-layered Constitution” in N. Bamforth and P. Leyland (eds.), Public Law in a Multi-Layered Constitution (Oxford 2003), ch. 15.
24. E.g. R (Medway Council and others) v. Secretary of State for Transport [2002] EWHC (Admin) 2516
25. [2003] J.P.L. 583, at [20]. The authority conceded it had no Convention rights of its own but its claim to argue in terms of the Convention rights of its population was rejected. There is little discussion and it is unclear whether the authority's point was rejected because of the rights-restriction rule or because the authority was not “directly affected”.
26. R (Mayor of the City of Westminster) v. Mayor of London [2002] EWHC (Admin) 2440
27. [2003] B.L.G.R. 611, at [93]-[96].
28. M. Supperstone and J. Coppell, “Judicial Review after the Human Rights Act” [1999] 3 E.H.R.L.R. 301–329, 309, a view supported in Re S (Minors)
29. (Care Order: Implementation of Care Plan) [2002] UKHL 10
30. [2002] 2 A.C. 291, at [88].
31. Cf. R (Rusbridger) v. Attorney General [2003] UKHL 38
32. [2004] 1 A.C. 357, at [21], cited in Miles “Standing in a Multi-layered Constitution”. Standing for such a declaration, it is submitted, is likely to be refused at least where it would be tantamount to recognising Convention rights vested in a public authority.
33. E.g. in Local Authority v. Health Authority (disclosure: restriction on publication) [2003] EWHC (Fam) 2746, [2004] Fam. 96 (a dispute over rights of publication). Convention rights were relevant because the court was a public authority; but in effect the authority was asserting a right to freedom of expression)
34. cf., London Regional Transport v. Mayor of London [2001] EWCA Civ 1491
35. [2003] B.L.G.R. 611.
36. As in the Zircon affair (S. Bailey, D. Harris and B. Jones, Civil Liberties Cases and Materials. 4th ed. (London 1995), pp. 454–455).
37. That a search of offices can raise an issue under Article 8 has been accepted in, for example, Noviflora AB v. Sweden (1993) 15 E.H.R.R. CD 6.
38. As in R. (Medway Council and others) v. Secretary of State for Transport [2002] EWHC (Admin) 2516
39. [2003] J.P.L. 583.
40. A possibility, for example, given developments in corporate manslaughter; see G. Forlin, “Directing Minds: Caught in a Trap” (2004) 154 N.L.J. 326.
41. The Article 6 right of a standard public authority not to be compelled to accept Alternative Dispute Resolution was implicitly recognised in Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576
42. [2004] 4 All E.R. 920.
43. D. Oliver, “Functions of a Public Nature under the Human Rights Act” [2004] P.L. 329
44. cf. P. Craig, “Contracting out, the Human Rights Act and the Scope of Judicial Review” (2002) 118 L.Q.R. 551–568
45. Joint Committee on Human Rights, “Meaning of Public Authority”.
46. The Joint Committee on Human Rights, “Meaning of Public Authority” urges a version of the broader view. This may explain the comment in text to note 5 above.
47. F. Bennion, “What sort of Human Rights Act?” (1998) 148 N.L.J. 488.
48. Aston Cantlow v. Wallbank [2003] UKHL 37
49. [2004] 1 A.C. 546, at [8] per Lord Nicholls, [47] per Lord Hope, [87] per Lord Hobhouse and, by strong implication, [158]-[160] per Lord Rodger.
50. See, for example, Collected Editions of the “Travaux Prèparatoires” of the European Convention of Human Rights (The Hague 1975), Volume I, p. 210 and, in particular, (1976) Volume III, p. 270.
51. See further Miles, “Human Rights Standing”.
52. Confirmed in Aston Cantlow v. Wallbank [2003] UKHL 37
53. [2004] 1 A.C. 546: a (standard) public authority is a body “whose nature is governmental in a broad sense of that expression” at [7] per Lord Nicholls; a body “exercising governmental power” with “a range of functions which are, in a broad sense, governmental” at [160] per Lord Rodger.
54. Aston Cantlow v. Wallbank [2003] UKHL 37
55. [2004] 1 A.C. 546, compare [7] with [12], per Lord Nicholls. Failing to distinguish institutional from functional tests in some recent Court of Appeal cases has been criticised
56. see D. Oliver, “Functions of a Public Nature”
57. Joint Committee on Human Rights, “Meaning of Public Authority”.
58. Aston Cantlow v. Wallbank [2003] UKHL 37
59. [2004] 1 A.C. 546, at [7] per Lord Nicholls referring to Oliver, “Frontiers of the State”.
60. Grampian University Hospitals NHS Trust v. Procurator Fiscal [2004] H.R.L.R. 18, at [9] and [19].
61. Human Rights Act 1998, ss. 6(3)(b) and 6(5).
62. E.g. punishment in independent schools engages state responsibility (Costello-Roberts v. United Kingdom (1995) 19 EHRR 112), and can found rights claims, at least by their head teachers.
63. (R (Williamson) v. Secretary of State for Education and Employment [2005] UKHL 15, [78]; but cf. [35]
64. Ayuntamiento de Mula v. Spain (Ap 55346/00) (1991) 68 D&R 209.
65. Professor Oliver has pointed out that it is inappropriate in the Convention context to express this in terms of establishing domestic remedies against those bodies ‘for whose acts the state is answerable before the European Court of Human Rights’, D. Oliver, “Functions of a Public Nature”, 333–334.
66. Aston Cantlow v. Wallbank [2003] UKHL 37
67. [2004] 1 A.C. 546, at [159].
68. “… a realistic and modern definition of the state” HC Deb. vol. 314 col. 406 (17th June 1998) (Jack Straw MP).
69. See also Aston Cantlow v. Wallbank [2003] UKHL 37
70. [2004] 1 A.C. 546 at [9] per Lord Nicholls and at [159] per Lord Rodger.
71. For recent discussions see, e.g., N. Bamforth and P. Leyland, (eds.) Public Law in a Multi-Layered Constitution (Oxford 2003).
72. See, for example, P. Craig, Administrative Law 5th ed. (London 2003), ch. 4; Craig uses both terms.
73. See above, note 28 and related text. In Aston Cantlow v. Wallbank [2003] UKHL 37
74. [2004] 1A.C. 546 at [152], Lord Rodger implies that the Equal Opportunities Commission is a standard public authority.
75. E.g., C. Harlow and R. Rawlings Law and Administration 2nd ed. (London 1997), ch. 10.
76. See Oliver “Frontiers of the State”.
77. Ayuntamiento de Mula v. Spain (Ap 55346/00) (1991) 68 D&R 209
78. Danderyds Kommun v. Sweden (Ap 52559/99) (2001) First Chamber
79. see also Rothenthurm Commune v. Switzerland Ap 13252/87 (1988) D&R 59, p. 251.
80. Holy Monasteries v. Greece (1994) 20 E.H.R.R. 1.
81. J.W. Allison “Theoretical and Institutional Underpinnings of a Separate Administrative Law”, in M. Taggart (ed) The Province of Administrative Law (Oxford 1997), 71.
82. See D. Oliver Common Values and the Public-Private Divide (London 1999), pp. 17–19 and the citations therein.
83. Foster v. British Gas [1990] ECR-I 3313: “a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing public services under the control of the state and has for that purpose special powers beyond those which result from the normal rules applicable in relations between individuals”.
84. See in particular Oliver, “Functions of a Public Nature”.
85. [1995] 1 All ER 513.
86. Discussed by Oliver, “Underlying Values of Private and Public Law.”
87. Oliver, “Frontiers of the State”, at pp. 492–493.
88. S. Hannett, “Third Party Intervention: In the Public Interest?” [2003] P.L. 128–150
89. cf. M. Arshi, and C. O'Cinneide, “Third Party Interventions: the Public Interest Reaffirmed” [2004] P.L. 69–77.