ADMIN LAW PUBLIC BODIES

During the last 10 years, among the top most important legislative works is “Human Rights Act of 1998” and it is one of the most significant parts of discussions. But there had been several controversies in it as well e.g. “HRA’s Sec 6”. As per the sec.6(1), "it is unlawful for a public authority to act in a way which is incompatible with a Convention right". A dispute is observed between the judges and scholars when we are concerned with the explanation of “section 6(3)(b) of HRA”, especially when dealing with “Public Authority and Public Functions”. With each day this apprehension is getting louder and louder, as per this apprehension HRA is at the risk of getting halted because of the fact that the public has failed to fulfill their duty as discussed in the section 6 of HRA. Therefore, courts have started to restrict its scope in various cases. They have adopted a considerably narrow approach to explain it, during “Campbell v Mirror Group Newspapers”, it has led to the withdrawal of various public bodies from the responsibility of upholding “Convention rights”. To get a comprehensive understanding of “Public Authority” by the judges we will have to do a close analysis of the legal logic that lays the foundation of the case laws.

During “Poplar Housing v Donoghue”, Lord Woolf CJ stated that “just because an organization performs tasks similar to those of a public body doesn't mean it automatically does public work”. Furthermore, in some cases a “public body” may let a privately held organization perform their duties. Now, that the private company has to perform the duty of the public body doesn’t mean that the private company is now a public body. To find out if a company is doing “public work”, courts use the institutional test. Since, this technique is identical to the technique that is relied upon by the courts while determining where a party is susceptible to judicial review or not therefore it has some problems. According to Lord Woolf, “any potentially broad scope should be bound by the approach developed by the courts in identifying the bodies and activities subject to judicial review”. After doing detailed analysis, it looks as if the court requires a “functional test” instead of an “institutional test”.

The main issue in the case “YL v Birmingham City Council” is pretty much identical to the problem in “Leonard Cheshire”. It is noteworthy that during both the initial decision and the appeal, Southern Cross wasn’t considered an organization performing “public functions”. The court during "Leonard Cheshire"

She went on to share another perspective which states that even “if LCF were deemed to be a 'public authority,' the home would likely have closed regardless in the Leonard Cheshire Case”. And when factoring in all the legal expenses which won't be recovered from the claims, that money could have been used for a better cause. As per this perspective if the definition were broadened, there would have been more people attempting to claim, but ultimately, the result would be similar to using a restrictive interpretation, resulting in wastage of both time and money.

It has been clearly stated by “Richard Buxton” that the “European Convention on Human Rights are not rights against other citizens; likewise, the Convention right under the H.R.A. preserves the nature of a right against governmental bodies and not against a private entity”. In other words it can be said that “Human Rights Act” can never have a “horizontal impact”. “E.H.R.W. Wade” is totally against the concept that the only way “Convention rights” can exist is like government duties before the “HRA”. In his view, what led to this was actually the lack of alternatives and it wasn't due to the fact that the rights were inherently inapplicable among “private individuals”. It appears that there is no logic for keeping the secondary aspects e.g. their extent and ways of implementing, the same when moving into “domestic legislation”.

However, while keeping in view the changing from an “international convention” to a parliamentary act, it would be very surprising if they still kept it the same. In view of Nicholas Bamforth “the true legal basis for any "horizontal effect" are located in “section 3 of the H.R.A”. He shares the view that when focusing completely on “section 6”, some of the great writers such as “Buxton and Wade” have ignored “section 3”. Section 3 lets the court explain laws in accordance with “Convention rights”. During “Ghaidan v Mendoza” it was established that this responsibility of the court to explain applies to all laws, even when we are concerned with cases dealing with “private individuals”.

Result

So far, we have observed that the courts have been struggling when dealing with the objectives of “Section 6 of HRA”. The section 6 was initially aimed at enhancing implementation of “convention rights”. The section 6 was initially aimed at enhancing implementation of “convention rights”. The problem is whether the judiciary is going to stand by the viewpoint of “Lord Nicoll” in “Aston Cantlow”. His viewpoint supports a wider reading of “public function” while following the “section 6(3)(b)”. It is believed that they will soon refrain from reverting to the limitations of “Donoghue and Leonard Cheshire” and adopt a broader interpretation of “public authority”. In my view, I think that it will be nothing but a hurdle for many people when they try getting their rights, especially the ones who are needy. Till substitute avenues of redress are acknowledged, this issue is going to dispossess citizens of recourse for violations of their inherent “Convention rights” that are embodied within the “Human Rights Act”. The current law, the way it is now, is not satisfactory, stringent, and inconsistent with the intention of the Legislature.