Two interesting recent blog posts dealt with the meaning of public and private under s. 6 of the Human Rights Act 1998. They were motivated by injunction proceedings in the High court whereby the Olympic Delivery Authority, (ODA) the body charged with the logistics and infrastructure of the London Olympic Games, had sought injunctions to restrain protestors from entering and occupying land which was to be developed as part of the Olympic site. The main issues emerging from this case discussed in the two posts was whether the ODA constituted a ‘core’ or ‘hybrid’ public authority under s. 6 HRA; whether it could itself enjoy human rights to defeat or counter any human rights obligations it may hold in its capacity as a ‘hybrid’ body exercising public functions; and where the ‘centre of gravity’ for determining the human rights obligations of hybrid bodies lay under the Act; under the s. 6(3)(b) ‘public function’ test or the definition of ‘private act’ under s. 6(5).
In this post, I wish to contribute to the discussion on the third point by highlighting a common essentialist fallacy in approaches to the meaning of ‘public’ under the HRA which leads to circular, question-begging conclusions. This essentialist fallacy is problematic on its own terms but also has a bearing on the relationship between s. 6(3)(b) HRA and s. 6(5) HRA. Avoiding the essentialist fallacy requires reading the term ‘private acts’ under s. 6(5) within the context of public functions under s. 6(3)(b) and as such, the post concludes that s. 6(5) cannot stand alone as a ground for determining the human rights obligations, or immunities, of hybrid bodies.
The Severability Thesis
Perhaps the main point of disagreement between the two previous posters on this topic was the question of the relationship between s. 6(3)(b) and s. 6(5) HRA. As is well known, s. 6 creates a legal obligation on public authorities to act compatibly with the rights contained in the ECHR, and s. 6(3)(b) extends the meaning of public authority to ‘any person certain of whose functions are functions of a public nature’. s. 6(5) furthermore states that ‘In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private’. This has resulted in a classification of two types of body which are subject to human rights obligations under the act: ‘core’ and ‘hybrid’ bodies. (See Lord Nichols, para.11 in Aston Cantlow PCC v. Wallbank  UKHL 37). Defining the human rights liabilities of hybrid bodies, moreover, raises the question of what can be called a ‘severability thesis’; that is, whether s. 6(5) is severable from s. 6(3)(b) such that it constitutes a separate head of analysis for determining the human rights liabilities of particular hybrid bodies. If it is not severable, s. 6(5) simply serves to compliment an analysis of the functions of hybrid bodies by simply reinforcing the ‘hybridity’ of the body in order to distinguish it for ‘core public authorities’. As such, the notion of ‘private acts’ under s. 6(5) is assimilated into a broader analysis of the ‘publicness’ of the functions of a hybrid body under s. 6(3)(b). If the two provisions are severable, then a two-stage test to assess the human rights liabilities of hybrid bodies is necessarily; firstly to determine whether the hybrid body undertakes ‘functions of a public nature’ and then a further analysis to determine the ‘privateness’ of the act which was taken pursuant to the public function. Moreover, as well as adding another limb to the test of the human rights liabilities of hybrid bodies, the severability thesis also, significantly, shifts the ‘centre of gravity’ on the human rights liabilities of hybrid bodies from s. 6(3)(b) and the definition of ‘public functions’, to s. 6(5) and the definition of private ‘acts’, where s. 6(5) and not s. 6(3)(b) provides the ultimate litmus test to determine the human rights liabilities of these bodies. On this analysis, even if a hybrid body is not deemed to be discharging a public function under s. 6(3)(b), it can still be caught if it is found that the nature of the act which caused the alleged human rights violation was public and vice versa.
The severability thesis was a significant point of disagreement between the two previous posters. David Mead seemed persuaded by the severability thesis, claiming that s. 6(5) can be read narrowly to warrant an independent analysis on the question of the ‘privateness’ of the act which is separate from ,and can defeat, the analysis for ‘public function’ under s. 6(3)(b) relying on statements from the Court of Appeal in Weaver in support. Alexander Williams, on the other hand, explicitly refuted the severability thesis, arguing that the centre of gravity of the human rights liabilities of hybrid bodies lies with s. 6(3)(b) and not s. 6(5). Evidence of this, he argues, can be found both in the failed attempt by Elias LJ in Weaver to apply the two-stage test implicit in the severability thesis, as well as Parliament’s intention in drafting the provision.
Beyond the blogosphere, the severability thesis has gained some traction from the bench, not least from one of the leading cases on s. 6; YL v. Birmingham City Council. In this case, Lord Scott, for example, argued that:
“[t]he effect of [s. 6 HRA] is that an act (or an omission) of a private person or company that is incompatible with a Convention right is not unlawful under the 1998 Act … unless the person or company has at least some “functions of a public nature”; but even if that condition is satisfied the private person or company will not have any liability under the 1998 Act if the nature of the act complained of was private.” (para. 23, Emphasis Added).
In the same case, Lord Neuberger found that :
“In my view, both as a matter of ordinary language and on a fair reading of [s. 6], there is a difference between “functions”, the word used in s. 6(3)(b) and “act[s]”, the word used in section 6(2) and (5) […]. The former has a more conceptual, and perhaps less specific, meaning than the latter. A number of different acts can be involved in the performance of a single function. So, if this appeal succeeds, a proprietor … would be performing a “function”, which, while “of a public nature”, would involve a multitude of acts, many of which would be private … a hybrid public authority is only bound by section 6(1) in relation to an act which is (a) is not private in nature and (b) is pursuant to or in connection with a function which is public in nature.” (para. 129, Emphasis Added)
The two-stage test to determine the liabilities of ‘hybrid bodies’ is clear from this latter judicial endorsement of the severability thesis; firstly it must be ascertained whether the function being discharged was a ‘public’ one within the meaning of s. 6(3)(b), and secondly, it must be determined that the impugned act which gave rise to the alleged human rights violation was not private. Furthermore, this two-stage test, as Lord Neuberger noted, requires a distinction between functions and acts. This means, as Elias LJ noted in Weaver, that:
“ … Not all acts concerned with carrying out a public function will be public acts. Conversely, it is also logically possible for an act not to be private act notwithstanding that the function with which it is most closely connected is a private function, although it is difficult to envisage such as case. Such situations are likely to be extremely rare.” (para. 28).
In the remainder of this post I will join the side of those arguing against the severability thesis by showing how it relies on a problematic essentialist fallacy which is best avoided.
The essentialist fallacy
The essentialist fallacy relates to the notion that concepts such as ‘public functions’ or ‘private acts’ have some natural referent in the real world betraying certain essential properties which automatically determines their public or private character. That is that whether something (e.g. a relationship, an act, function etc.) is to be deemed public or private relates to the ‘essential nature’ of the thing itself which is in some sense self-evident. The fallacy was alluded to, albeit obliquely, by Lord Neuberger in YL when he noted that:
“Any reasoned decision as to the meaning of s. 6(3)(b) risks falling foul of circularity, preconception, and arbitrariness. The centrally relevant words, “functions of a public nature”, are so imprecise in their meaning that one searches for a policy as an aid to interpretation. The identification of the policy is almost inevitably governed, at least to some extent, by one’s notions of what that policy should be, and the policy so identified is then used to justify one’s conclusion.” (para. 128).
As I have argued elsewhere, it affects other areas of the HRA, however for current purposes I will focus on its expression with respect to the question of the relationship between s. 6(3)(b) and s. 6(5) HRA. In Aston Cantlow, in determining the potential human rights liabilities of a Parochial Church Council suing landowners for the cost of repairs of the chancel of a local parish church, several of the bench fell foul of the essentialist fallacy with respect to question of the nature of the acts which constituted the alleged human rights violation. Having considered the functions of the Parochial Church Council, for example, Lord Hope argued that the nature of the act was that of ‘seeking to enforce a civil debt’ (para 64) which was a ‘matter of private law’ (para. 71). In the same decision, Lord Hobhouse found that the act in question was ‘the enforcement of a civil liability’ (para. 89). Such liability, moreover, was one which ‘arises under private law and which is enforceable by the PCC as a civil debt’. (para. 89). These considerations were part of the basis of the finding that the act in question was a private one which contributed to the finding that the PCC did not hold human rights obligations under s. 6. Similarly in YL, Lord Scott, looking at the nature of the act which gave rise to the litigation against a privately owned and run care home by a resident who was being evicted, argued that:
”the service of a notice terminating the agreement under which YL was contractually entitled to remain in the care home, the notice was served in purported reliance on a contractual provision in a private law agreement. It affected no one but the parties to the agreement. I do not see how its nature could be thought to be anything other than private.” (para. 34).
In the same case, Lord Neuberger found that:
“[t]he liability of Southern Cross to provide Mrs. YL with care and accommodation in the present case similarly “arises as a matter of private law“. That is illustrated by the fact that Mrs. YL (or her relatives were) free to choose which care home she went into, and took advantage of that right by selecting a care home more expensive than Birmingham was prepared to pay for … the services provided in this case are very much of a personal nature, as well as arising pursuant to a private law contract between Southern Cross and Mrs. YL” (para. 168).
In these examples, we can see essentialist fallacy at work. For each of their Lordships, the nature of the acts in question, namely the enforcement of a civil debt and a notice to terminate a contractual agreement, were governed by private law and therefore were, by implication, private acts within the meaning s .6(5). There is therefore a loose and fluid equation of meanings of ‘privateness’ between different contexts. However no explanation or justification of what private law constitutes, nor how this matters for the determination of ‘private acts’ under s. 6(5) HRA is proffered. It is presented as intuitive or somehow ‘self-evident’. This is problematic as, it leads, as Lord Neuberger himself acknowledged, to circularity. To claim, as their Lordships have done, that the enforcement of a civil debt or the enforcement of a contractual provision is inherently private and therefore a ‘private act’ under s. 6(5) is simply to beg the question. This circularity, moreover, runs the risk of subjectivity in determining ‘privateness’ under the Act as well as, perhaps more problematically, as Neuberger noted, arbitrariness.
It could, of course, be argued that it is relatively common knowledge that contracts between private parties involving the purchase of land or a tenancy agreement are examples of private acts par excellence given that they form the core of what most people would consider private law as a field of law. Therefore we can reason by analogy that they would fall under the definition of ‘private acts’ under s. 6(5). However, this reasoning by analogy is not unproblematic. Firstly, resistance to the classification of the enforcement of a civil debt for chancel repairs as a naturally and inherently private act came from within the court itself in Aston Cantlow. Lord Scott, for example, argued that ‘chancel repair obligations’ in the case had an ‘unmistakable public law flavor to them’. (para. 131) Secondly, privateness, including privateness in the law, is neither natural nor self-evident but is necessarily context dependent. Sometimes even prima facie naturally or intuitively private branches of law such as property law can be public. A good example of this is the US Supreme Court Case of Shelly v. Kramer (334 U.S. 1 (1948)) where the Court found that the enforcement of a racially discriminatory restrictive covenant over land – surely the most intuitively private branch of law; property law – was considered to be a public act in the form of a ‘state action’ given the fact that, in the final analysis, it was ultimately enforced by a Court, which can (and indeed in the HRA is) considered a public authority. On this logic, then, all private law can conceptually enjoy a public character given that it will ultimately be enforced by a public body, a court. Thus the essentialist fallacy erroneously assumes an ‘essence’ of publicness or privateness in the law which is imminently contestable.
The essentialist fallacy also conflicts with the ‘sui generis’ nature of publicness and privateness under s. 6. Academic commentary and the Courts themselves have warned against the importation of conceptions of publicness or privateness from other areas of law into the HRA in order to determine the human rights liabilities of core and hybrid bodies under the act. For example, Lord Nicholls in Aston Cantlow noted that:
“The word “public” is a term of uncertain import, used with many different shades of meaning: public policy, public rights of way, public property, public authority (in the Public Authorities Protection Act 1893), public nuisance, public house, public school, public company. So in the present case the statutory context is all important. As to that, the broad purpose sought to be achieved by section 6(1) is not in doubt. The purpose is that those bodies for whose acts the state is answerable before the European Court of Human Rights shall in future be subject to a domestic law obligation not to act incompatible with Convention rights.” (para. 6, Emphasis Added).
There are numerous other admonitions, both judicial and academic, against importing conceptions of the ‘public’ from, for example, bodies subject to judicial review, ‘emanations of the state’ under EU law, The Race Relations Act 1976 or the Freedom of Information Act 2000, in order to determine the concept under s. 6 HRA. (See generally, D. Oliver, ‘The Frontiers of the State: Public Authorities and Public Functions Under the Human Rights Act’ (2004) Public Law, 476.) This has to do with specific purposes of the HRA itself; to ensure the enforcement of human rights ‘at home’ rather than at Strasbourg. If this is the case, then, importing ‘naturalistic’ understandings of ‘privateness’ from personal intuition or political preference, or from designations of publicness or privateness with different taxonomic or pedagogical purposes, is particularly problematic.
So what has all of this to do with the severability thesis and the relationship between s. 6(3)(b) and s. 6(5) HRA which was the subject of the dispute between the two previous posters? Well, if it is the case that the essentialist fallacy is to be avoided, and it is argued that there are many good reasons why it should be, we should be sensitive to the contextual nature of ‘publicness’ and ‘privateness’ under s. 6 HRA. Avoiding the essentialist fallacy, therefore, requires recognizing that the meaning of ‘publicness’ and ‘privateness’, as Lord Nicholls above suggested, is context-dependent. These terms have no independent meaning outside of the specific legal context within which they appear. Against this backdrop, the relevant context which can give meaning to the term ‘private acts’ under s. 6(5) is that of the public function under s. 6(3)(b) pursuant to which the particular (putatively private) act was taken. The nature of the act itself under s. 6(5), given that it is not inherently public or private, will always be conditioned by the function which governed the act. Thus, as Elias LJ himself discovered in Weaver when attempting to apply the severability thesis, s. 6(3)(b) and s. 6(5) are relational such that the finding of a public function under the former will have a bearing on ‘privateness’ of the act under the latter. In this sense, they are two sides of the same coin.
Cormac Mac Amhlaigh is Lecturer in Public Law at the University of Edinburgh and a visiting Fellow at the Faculty of Law, University of Copenhagen.
Suggested citation: C. Mac Amhlaigh, ‘Once More Unto the (Public/Private) Breach …: s. 6 of the Human Rights Act 1998 and the Severability Thesis’ UK Const. L. Blog (13th December 2013) (available at http://ukconstitutionallaw.org)