Human Rights Reform and “Functions of a Public Nature”

In December 2021, the United Kingdom government launched a consultation on its proposals to replace the Human Rights Act 1998 (HRA) with a Bill of Rights.¹ Among the twenty-nine questions posed in the consultation paper (CP) is whether the current definition of “public authorities” under s 6 should be maintained, or whether it should be amended to provide “more certainty … as to which bodies or functions are covered”.² In this note, I argue that this is a welcome question, considering that the courts have taken a restrictive approach to interpretation,³ arguably leading to a “gap in human rights protection” as public services are increasingly outsourced to private providers.⁴ However, the question must be considered alongside the wider proposals for reform, which are unlikely to lead to greater certainty and are in fact likely to weaken human rights protection within the UK.

Section 6(3)(b) of the HRA states that “public authorities” include “any person certain of whose functions are functions of a public nature”. The functions are not defined in the Act to provide for greater flexibility as privatisation in its various forms has led to diverse arrangements for public service delivery. It was drafted in acknowledgement of the challenges posed by privatisation and with the understanding that private bodies responsible for carrying out public functions must be held accountable for respecting human rights, at least with respect to those functions.⁵ It was accepted that the HRA should have a broader application than judicial review, and section 6(3)(b) was drafted to capture so-called “hybrid bodies” so that they would be covered for the functions they performed that were public in nature, but not for their private activities.⁶

Despite the apparently broad scope of section 6(3)(b), the courts have developed a restrictive approach to interpretation, meaning that many private contractors delivering public services are not subject to the HRA. In Donoghue, Lord Woolf suggested that “functions of a public nature” should be interpreted broadly by considering a range of factors.⁷ However, in determining whether a housing authority set up by a local authority was a “public authority” for HRA purposes, the Court of Appeal based its decision largely on the close relationship between the two authorities and the extent to which the housing authority’s activities were “enmeshed” with those of the contracting authority.⁸ The Court of Appeal later applied the Donoghue reasoning to conclude that the Leonard Cheshire Foundation, which had contracted with a local authority to provide residential care services for the elderly, was not “standing in the shoes of the local authorities” and therefore not a public authority under the HRA.⁹

Following these decisions, the Parliamentary Joint Committee on Human Rights (JCHR) described the courts’ interpretation as “highly problematic”.¹⁰ They argued that the criteria used to determine whether a body was a public authority gave too much weight to the “administrative links” between the contracting body and the state, rather than the nature of the function.¹¹ The report considered a range of possible solutions, including an alternative drafting of section 6(3)(b), but concluded that it was too early to consider legislative amendment, and, in any event, it would be...