In the recent case of R (on the application of Johnson) v Havering London Borough Council/YL v Birmingham City Council and Others  All ER 271, the Court of Appeal has considered again the difficult question of what will qualify as a "hybrid" public authority for the purposes of section 6 of the Human Rights Act 1998 ("HRA"). "Hybrid" public authorities are private bodies that assume the responsibilities and obligations of "core" or central public authorities, usually by entering into contractual arrangements. The difficulties have arisen since the passing of the HRA, which has seen the "slow creep" of Convention rights into areas arguably well beyond that intended by the legislative drafters. However, balanced against the need to keep the scope of the HRA in check, the Courts have had to grapple with the need to ensure that public authorities do not escape their Convention obligations by delegating their decision making functions to the private sector.
This issue has proven to be a complex and difficult area for the Courts, with no clear test emerging as to the range of private bodies, and the nature of the obligations, that are likely to cross the threshold. It was hoped in the Johnson case that given the intervention of several key parties, including the Secretary of State of Constitutional Affairs, that the Court of Appeal might resolve the confusion surrounding the various legal tests. Unfortunately, the position remains less than clear, at least for bodies outside of private care homes. This confusion will remain until the House of Lords considers the matter on appeal, which is likely to occur before the end of the year.
Section 6 imposes a duty on "public authorities" not to act in a way which is incompatible with Convention rights. Private individuals and organisations have no such duty. Therefore, it is only when a body qualifies as a "public authority" under the HRA that Convention rights necessarily come into play.
"Public authority" is not defined in the HRA. It is therefore critical for a proper understanding of section 6 HRA to understand the distinction between the two types of public authority recognised by the HRA. First, there are "core" public authorities, which include for example central government departments, and local authorities. Second, there are what is known as "functional" or "hybrid" public authorities which are not governmental bodies, but nevertheless exercise certain functions which may be described as "public" in nature.
The relevant test in respect of "core" public authorities was considered in detail in the leading decision of the House of Lords in Aston Cantlow PCC v Wallbank  1 AC 546. However, the position of "hybrid" public authorities is less than clear.
The claimants in both sets of appeals in Johnson v Havering and YL v Birmingham City Council were resident in a care home maintained by the defendant local authority under the provisions of Section 21 of the National Assistance Act 1948. They sought to prevent the transfer by the local authority of their accommodation to private sector control. Broadly, the claimants argued that the transfer of control of the homes would in itself amount to a breach of the residents' rights under the European Convention on Human Rights, principally under Article 8. The two appeals were heard together given that they raised similar issues of public importance.
The decision in Johnson v Havering
The Court of Appeal disposed relatively easily of the issue on appeal in Johnson. In summary, the crux of the appellant's complaint was that the residents would, as a result of the transfer, lose a remedy that they could deploy to assert the level of Article 8 protection against the local authority directly. The Court of Appeal dismissed this argument on various grounds:
- The Court of Appeal considered that it was doubtful whether Article 8 placed on a member state an obligation to make welfare provision of the type and extent required by Section 21 of the 1948 Act;
- The public authority will continue to have Article 8 obligations towards a resident, as well as its Section 21 obligations, notwithstanding any transfer; and
- In any event, given the previous decision of the Court of Appeal in R (on the application of Heather) v Leonard Cheshire Foundation  2 All ER 936, in the event of a transfer of obligations by a public authority to a private care home, it was not "exercising functions of a public nature" pursuant to Section 6(3)(b) of the HRA.
The decision in YL: Is a private care home a "public authority"?
This was the more difficult issue for the Court of Appeal to decide. The Court noted its earlier decision in Cheshire, where the status of the care home in that case was not materially different from the primary facts relating to YL. However, the Secretary of State submitted that Cheshire was wrongly decided, given it was inconsistent with Strasbourg authority, and that it could not stand with the subsequent decision of the House of Lords in Aston Cantlow.
Although the judgment in Aston Cantlow dealt primarily with the issue of what is a "core" public authority, the House did deal briefly with the issue of what qualified as a "hybrid" public authority as follows:
- The Courts should have necessary regard to Strasbourg jurisprudence;
- Domestic cases which address amenability to judicial review are "not the touchstone", although they may provide useful guidance; and
- If the body is "taking the place of Central Government or the local authority" and is providing "a public service" this would be relevant to determining whether that body exercises functions of a public nature under section 6(3)(b).
The Court of Appeal rejected the Secretary of State's submission that Aston Cantlow had overruled the decision in Cheshire, and concluded that in any event it was bound by its previous decision. The Court reached this conclusion for the following reasons:
- A state may be liable for arranging its legislative system in such a way as enable or facilitate conduct and consistent with the Convention by a private party;
- The state, in its administrative rather than its legislative capacity, cannot avoid one of its own Convention responsibilities by delegating that responsibility to a private body; and
- The state may be impleaded for the European Court of Human Rights in a care home case because of the inadequacy of its judicial provision. This springs from a positive obligation of the state, under Article 8, to respect, and therefore to promote, the interests of private and family life. The effect of all the European Court of Human Rights authorities is that there are various ways in which complaints about the conduct or policy of a private care home might be brought before that Court, but none of them would involve or require any finding or assumption that the care home was itself a "public authority".
Moreover, the Court of Appeal noted that in its previous decision in R (on the application of Beer) v Hampshire Farmers Market Ltd  All ER 356, the Court of Appeal on that occasion did not accept that Aston Cantlow had necessarily disturbed the judgment in Cheshire, which it considered to remain good law.
For these reasons, the Court concluded that the private care home in accommodating the appellants was not performing the functions of a public authority under Section 6(3)(b) of the 1998 Act.
Although the Court of Appeal's conclusion that it was bound by its previous decision in Cheshire, is not necessarily surprising, its general observations regarding the proper scope of section 6(3)(b) demonstrate the residual uncertainty in this area, and the fact that no clear test has emerged through the cases. The Court was afforded an opportunity to provide some detailed guidance as to what it considered the test of general application to be, taking into account the observations of the House of Lords in Aston Cantlow, and specifically the role of Strasbourg case law. Instead, the Court appears to have provided only rather broad guidance, as can be seen from the judgment of Buxton L J:
"I therefore venture to suggest that the approach to the issue of whether a particular body is a (hybrid) "public authority" should respect the instrumental nature of Section 6 of the 1998 Act, and its purpose in promoting access to the Convention jurisprudence. That does not exclude the conclusion that a hybrid body may be directly impleaded in the protection of some Convention rights but not of others. Nor does it exclude consideration of the necessity of imposing liability on a body even where that significantly distorts the balance required by some articles of the Convention. What is not likely to be helpful is to ask whether in performing a particular function a hybrid body falls under the Convention for all purposes and at all times, in the same way as the status of a core public authority is fixed without reference to the instant context."
It therefore appears that further litigation regarding this issue is inevitable, and the residual uncertainty will remain until the House of Lords hears the appeal and decides what is the preferred test for "hybrid" bodies. Until this issue is decided by the House of Lords, a cautious approach should be adopted as to whether Convention rights are in play.