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David Mead: The Continuing Mystery of “Publicness” Within Section 6 of the HRA

davidmeadGuessing that it was not on my usual diet of journals, a colleague recently suggested an article in The Conveyancer that might be of interest. Emma Lees had written an interesting piece ((2013) 77 Conv. 211) on protest occupations and actions for possession but one aspect unrelated to the main topic intrigued me more than any other. In Olympic Delivery Authority v Persons Unknown [2012] EWCA 1012 Ch, the ODA, established under s.3 of the London Olympic Games and Paralympic Games Act 2006, sought injunctions to restrain protesters from entering and/or occupying land that was being developed as part of the Olympic site. Mr Justice Arnold had held that he was required to balance the rights of the putative protesters under Articles 10 and 11 with the ODA’s rights to peaceful enjoyment of possessions under the 1st Protocol (at [24]). I’d skimmed the case last year when judgment was delivered but hadn’t really noticed the point that Emma Lees was making: that it was “somewhat surprising that [the ODA] is deemed capable also of possessing human rights” (Lees, p.215) as it is acknowledged elsewhere in the judgment as a public authority (though Lees uses the term ‘public body’).

This short post will consider this aspect of the ODA case points. It will assert that in fact that whatever type of public authority the ODA is (on which see below) on current authority Arnold J was mistaken in holding that it had any Convention rights at all to be balanced. It will branch out into a short, brief discussion of the troubling public/private narrative using the case to identify some wider conceptual or operational problems.

“PUBLIC AUTHORITIES” UNDER SECTION 6 IN OUTLINE

First, a brief outline of section 6. The proper scope of s.6 has been subject to more voluminous literature, and case-law, than any other. The state of play is fairly well settled, judicially speaking.

  1. There are two types of public authority, to which different names attach, but these are broadly speaking core and hybrid (or functional). The reason for this it seems, is that the word “includes” in s.6(3)(b) – “includes persons certain of whose functions are functions of a public nature” – must mean there are authorities not “certain” of whose functions are public but all of whose functions are public.
  2. There is no list of either – but attempts were made by Lord Nicholls in Aston Cantlow both to describe criteria by which we might identify the former and indeed to identify a small cohort of specific authorities, so we “know” it encompasses the police, the army, government departments and local authorities.
  3. Core public authorities have no “private” side – whatever they do, they are capable only of performing public functions even when, to the outside world, they are engaged in an otherwise private activity such as, for example, buying land.
  4. Core public authorities do not possess any Convention rights.
  5. Hybrid authorities on the other hand have both public and private sides, leading to the as-yet unresolved matter of what Alex Williams calls “chameleonic effect” ([2011] PL 139) – can a hybrid authority, when discharging its public functions (howsoever we might determine these) lay claim to the rights-guarantees in the HRA?
  6. Resolving the putative exposure to the s.6 duty of an alleged hybrid authority is a two-stage test, based on a close reading of s.6(3) and s.6(5). First, is this entity performing any public functions and secondly, is the act complained of one that is private (or public)?
  7. Private entities that undertake (or even assist in?) the discharge of a public authority’s public functions – such as its statutory duty to provide care and accommodation – pursuant to a contractual/commercial arrangement are not thereby and themselves transformed into public authorities, against whom victims can make direct Convention claims using s.7(1)(a).
  8. That Article 34 of the ECHR – and its definition of want counts as a victim for the purposes of lodging an application – underpins all these approaches and outcomes.

THE OLYMPIC DEVELOPMENT AUTHORITY CASE

The ODA is a statutory corporation and executive non-departmental public body (NDPB) (see The Cabinet Office Public Bodies 2012) responsible to the Department of Culture Media and Sport. Its original budget, announced in March 2007, was £9.325bn. According to the Cabinet Office, classification as an NDPB is administrative rather than legal, “a body which has a role in the process of national government but is not a government department, or part of one and therefore operates to a greater or lesser extent at arm’s length from ministers” and an executive NDPB is “typically established in statute and carrying out executive, administrative, regulatory and/or commercial functions.” It is, in the Cabinet Office scheme, at one greater remove than an executive agency. According to the ODA’s own website, its responsibilities were the “construction of venues and infrastructure for London 2012, including the Olympic Park, planning and funding transport for the Games, and regulating advertising and trading”. Its role now (until it is wound-up in 2014) is planning for, overseeing and working towards the transformation of the Olympic Village into 2,800 residential homes (East Village) an area that will include social housing, medical and educational facilities. The remaining development and regeneration of the Park and various sites is being undertaken by the London Legacy Development Corporation.

It must be beyond doubt that the ODA must be categorised as one or other of the two types of public authority. Whichever and why is not my immediate concern, though this post will address some of the matter thrown up by that distinction, for the simple reason, that on current doctrine, Arnold J took a wrong turn.

As to whether the ODA is a core authority, it is clearly not any of the four bodies named by Lord Nicholls in Aston Cantlow (see 2. above). It is clearly possible to argue that the ODA could be a body for which the UK would be directly answerable at Strasbourg, the touchstone of a body being governmental in nature and thus core. Beyond his “instinctive classification” of government departments, local authorities, police and the army, Lord Nicholls lists the possession of special powers, democratic accountability, public funding in whole or in part, an obligation to act only in the public interest and a statutory constitution. Yet, if it were a core authority, on current doctrine (see 4. above), the ODA would have no Convention rights to offset against those of the protesters. Either current doctrine is not as strong as we assume – but Arnold J would be bound to uphold it – or the ODA is not a core authority. Either way, and this goes for the aspect immediately below, greater explanation of his holding was needed.

The ODA may well be considered a hybrid authority, by virtue of performing some or “certain public functions” in relating to planning, development, construction of publicly-funded buildings and sites, transport coordination, security and safety (see s.6 of the 2006 Act) and its regulatory role in relation to trading, it meets the first hurdle in point 6 above – albeit that not all its functions are public. Construction and development might well be seen as private – on which see the discussion below – despite the source of capital being public: the Public Sector Funding Package for the Games as a whole was about £9bn. That being so, two further questions arise. First, does it have any rights of its own it can assert in the instant scenario as is assumed by Arnold J? Secondly, is it liable under the HRA to the protesters for any possible violations of their rights – i.e. does it owe them a duty under s.6 to act in a Convention compatible manner? This will be so if it is not acting privately”, as dictated by s.6(5). The answer to both turns on one single point: in what capacity was the ODA acting at the time? Taking the first point, if the ODA were conceived as being a private body at the time it sought the injunction – then, like any other private person, it could lay claim to its own Convention rights yet – and this seems to create an irresolvable tension – if it is so conceived, then it is not acting publicly within s.6(5) and so is under no rights-respecting duties towards the protesters or at least not directly (and Arnold J does not seem to be alluding to horizontality in his judgment). That being so, Arnold J must be wrong to assert that the rights of both are in play – it can only be on or the other, surely? The only caveat, and which in fact complicates yet more, is whether in considering whether a hybrid authority can exercise its rights, the question is whether it was performing a public function but if deciding if it is under a duty to third parties, it is the public (or private) nature of the act that is the key. This a matter that has not been before the courts for positive resolution.

Let us dissect a little more the possible nature of the act in question. Following Weaver the real question, and one that required again greater explication than a simple assertion of doctrinal truth, was to consider the nature of the act. On this, various views could have been reached. The majority in Aston Cantlow (Lord Scott dissenting on this point) conceived the case, enforcing liability for chancel repairs, as akin to enforcing liability for debt, a quintessentially private law relationship. The question in the ODA case should have been: is seeking injunctive relief in relation to the land it owns a private act? Here, Arnold J should have had to confront two linked issues arising from Weaver. First, must the act – which is alleged to be public – be one that is being done in pursuit of obviously or decidedly public functions? This is the paper clip point raised by Jonny Landau ([2007] PL 630). Here the Court of Appeal in Weaver divided but not along the lines by which it was disposed. Elias LJ holds that ([54]) “section 6 is not structured so as to ask whether the particular function in the context of which the disputed act takes place is a public function”. Lord Collins on the other hand – but also in the majority in terms of disposing of the case in favour of the applicant – held that ([95]) “it seems to me plain that the act in question must be an act in pursuance of the entity’s relevant functions of public nature.” Rix LJ dissented in the outcome but can be seen as aligned with Lord Collins, though not with such clarity. His judgment is largely aimed at demonstrating the non-public nature of the Trust, in terms both of function and the act of termination. He does confusingly conflate the two (see e.g. [147]) but at the very end of his judgment says this: “ While it is conceded by the Trust that in certain limited but irrelevant respects the Trust is a hybrid authority for the purpose of s.6(3)(b), I am sceptical how far the management of social housing can be brought within the meaning of that subsection” (my underlining). Clearly, in his mind – and more obviously in that of Lord Collins – the act at the heart of the dispute must be on done in performance of the body’s public functions. It thus might be relevant that the act at issue related to development of the land for the Games – not clearly a public function, certainly not so much as planning or transport coordination – despite being publicly funded. How we conceive the nature of acts performed by public authorities is what we turn to now.

Secondly, though this short post is not the place to seek to determine the “publicness” of either the ODA or the specific act of seeking an order enjoining trespass, Arnold J should have engaged in what we might call the conceptualisation issue. Is seeking that form of relief, since it is one we each can do should we worry about a possible trespass by a neighbour, be seen as “private” or, because it is being undertaken by a public authority (as we are assuming of the ODA) and (again let us assume) is being sought in pursuance of its public function to create an Olympic park, therefore a public act? This is really what divided the Court in Weaver, with the majority holding – after several pages of analysis of funding, the framework, public policy – that the act of terminating an assured tenancy for rent arrears was so bound up with the public function of providing social housing. To paraphrase Lord Scott’s approach in Aston Cantlow, is this simply enforcing a debt (private) or is it really enforcing a debt to ensure funds to maintain the parish church, a building of the established church and which itself serves certain public functions, such as burial and marriage? Clearly, in the ODA case, providing the Olympics and providing a venue for that event is not of the same quality as providing social housing (as in Weaver), so as to meet an identified public need. Arnold J could have reasoned this was “simply” seeking or maintaining possession so as to develop land, land that – once used – would be sold off. It would then likely have been seen as private. Alternatively, he could have decided the act of seeking an injunction to be public, inextricably linked as it was to developing the venue for the Olympics, and is thus the exercise of a statutory power in relation to land (s.3(2) of the 2006 Act) in order to achieve one of its statutory purpose, preparing or making arrangements for the preparation of the London Olympics. None of this is evident in the short judgment of Arnold J in the ODA case.

This short post has, I hope, illustrated some wider issues at the heart of s.6. I’ll conclude this post with two points. First is the difficulty of drawing precedent from an application for an interim injunction, at short notice, at which the protesting defendants were not represented. All that said, His Lordship reached a view on the status of the ODA and the applicability of the HRA to it that is, I have argued, misconceived (at best) or at least not fully reasoned and explained yet which stands as an authoritative ruling – or implicit aspect of the ratio – by the High Court. It thus shows the problems when public law or HRA issues arise in or before the common law courts or courts of chancery. It is the same, but in reverse, when issues of licences and trespass come before the magistrates or crown court when the police seek to enter property by consent, about which I have been writing over the past few years. The second is linked to that – that much is often assumed of the term “public authority”, in argument and reasoning, and it is only as we start to unpack it all a little that we can see there is, in many cases and in general, much more than meets the eye. Some of this is being resolved by the growing case law on s.6 but much is still up in the air.

One of those is, and this is the third point, the still elusive nature of “publicness” at the heart of s.6 analysis. While the two-stage approach to the question, following Weaver, is now both clearer and more in line with the statutory framework, by disgorging the function question from the act question, we are still no nearer knowing the criteria by which we might gauge the difference between “public acts” and “private acts”. It cannot simply be resolved by looking at the actor as that misses the point of the earlier disjoining of the two, conceptually. Neither can it be assessed by looking at the factors which tells us that the actor is public – who funds the activity – as these (without more) are institutionally constitutive, or of the agency, not the act. It further begs the question, as alluded to above. Do we assess it simply by considering whether this is an act that Joe Bloggs on the street could perform, along lines proposed by Dawn Oliver and, if so, then it is essentially a private act? This would leave very few acts – of hybrids at least (acts of core authorities are always public no matter how we view them) – as being public in nature. Alternatively, we could construe the act more contextually: would authority A be doing act X at all were it not for the fact that A is empowered, perhaps obliged, to perform public function Y or achieve public policy goal Z? If so, doing X might then be seen as performing a public act, if it is so intertwined, so integral to A’s “publicness” even if, if performed by you or me, we’d say it was obviously private. There are some indications in the judgment so the majority in Weaver here to assist: Elias LJ talks ([76]-[77]) of an act being “so bound up” and “acts which are necessarily involved in the regulation of the function” and, in reverse, excludes acts that are “purely incidental or supplementary to the principal function”. Lord Collins (paraphrasing [95] and [100])) put it thus: that the act must be in pursuance of, or purportedly in pursuance, or at least connected with, performance of functions of a public nature” but not all acts would be so construed: “many acts which are in pursuance of performance of functions of a public nature will be private acts.” While terminating a contract (Lord Collins) with a builder to repair one of the houses in the housing stock or (Elias LJ) with a window cleaner for the Trust’s properties would not be seen as anything other than a private act, what about the employees of hybrid authority A? Dismissing an employee for a Convention-protected reason, simply because it is the exercise of a contractual right is not per se a private act as that would “significantly undermine the protection which Parliament intended to afford to potential victims of hybrid authorities” (Elias LJ in Weaver at [77]). Clearly employing staff to perform the authority’s duties or role is not as wrapped up in its public functions as the termination of a tenancy in Weaver – it is one stage removed at least. We could say though that employee X would not have been employed had authority A not had to perform public function task Y – the regulatory duties say of the Environment Agency but does this not risk differential protection for those employees who perform its non-public functions, conducting research into climate change? This is problematic and we await more detailed clarification rather than, as in the ODA case, simple assumption.

David Mead is Professor of UK Human Rights Law in the Law School at the University of East Anglia

Suggested citation: D. Mead ‘The Continuing Mystery of “Publicness” Within Section 6 of the HRA’ UK Const. L. Blog (17th October 2013) (available at http://ukconstitutionallaw.org)

2 comments on “David Mead: The Continuing Mystery of “Publicness” Within Section 6 of the HRA

  1. Dawn Oliver
    October 18, 2013

    1. It is not the case that all acts by core public authorities are ‘public’. Section 6 simply provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. In other words, in both its public and private activities a core public authority must respect Convention rights. If all its acts were public it would be subject to judicial review in all that it does, and that would not be right.
    2. I agree that core public authorities do not enjoy Convention rights. It was unnecessary for Arnold J to consider whether the ODA had Convention rights, as he could simply have noted that it had the normal rights enjoyed by property owners, which include a right to possession against trespassers. If the ODA was exercising a public function then it might have been subject to ordinary judicial review e.g. for failing to take account of relevant considerations when applying for a possession order, but that does not of itself mean that the ODA did not have property rights, only that in deciding how to exercise them it may, if the function it is exercising is public, be subject to ordinary judicial review.

  2. Pingback: Cormac Mac Amhlaigh: Once More Unto the (Public/Private) Breach …: s. 6 of the Human Rights Act 1998 and the Severability Thesis | UK Constitutional Law Group

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This entry was posted on October 17, 2013 by in Human rights and tagged , .
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